Section 5: Hospital Holding Powers

 

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Section 5 of the MHA is all about hospital holding powers for people who are already hospital inpatients, whether in a psychiatric ward or a general hospital.

The relevant subsections are section 5(2) and section 5(4).

Section 5(2) is the doctor’s holding power. The Code of Practice states that it can be used:

“where the doctor or approved clinician in charge of the treatment of a hospital in-patient concludes that an application for detention under the Act should be made. It authorises the detention of the patient in the hospital for a maximum of 72 hours so that the patient can be assessed with a view to such an application being made.”

This means that if an informal hospital patient is detained under section 5(2) an AMHP has up to 72 hours to arrange an assessment with a view to detaining under section 2 or section 3. Once a decision has been made, and an application has been completed for section 2 or 3, the section 5(2) detention ends. This also applies if the decision is made not to detain.

Although normally detention under this power would immediately initiate an assessment by an AMHP and a second doctor, if the doctor in charge of the patient subsequently reviews them prior to this full assessment and concludes that continued compulsory detention is no longer necessary, the section 5(2) can then be discharged.

Section 5(2) can be used are where the patient is actively wishing or trying to leave the hospital, but it is considered that it would put them at risk if they left, and it is not practicable or safe to make an application under section 2 or 3 without detaining them while this is arranged.

Detention under section 5(2) does not permit the patient to be moved from one hospital to another. If they are moved, for example from a general hospital to a psychiatric hospital, or vice versa, then the section would automatically end.

When can’t section 5(2) be used?

It cannot apply to a patient who is already liable to be detained under section 2, 3 or 4.

In addition, the Reference Guide states unequivocally that someone on a Community Treatment Order cannot be made subject to section 5(2). It goes on to explain that “because patients on CTOs can be recalled to hospital for treatment if required, it should not be necessary to make applications for their detention.” The Code confirms that “where the person is known to be on a CTO and compulsory admission is indicated, the recall power should be used”.

It can also not be used for a patient detained under section 135 or 136 where the reason they are in hospital is as a place of safety.

The Code is clear that “this power cannot be used for an out-patient attending a hospital’s accident and emergency department, or any other out-patient. Patients should not be admitted informally with the sole intention of then using the holding power.”

It also states that: “Section 5(2) should not be used as an alternative to making an application, even if it is thought that the patient will only need to be detained for 72 hours or less.”

Section 5(4) is the nurse’s holding power. AMHP’s really don’t get involved with these, as only a section 5(2) would trigger a request for a full assessment under section 2 or 3. It can only apply to a patient who is receiving treatment for mental disorder an an in-patient in a hospital.

The Code says that “this power may be used only where the nurse considers that: the patient is suffering from mental disorder to such a degree that it is necessary for the patient to be immediately prevented from leaving the hospital either for the patient’s health or safety or the protection of other people, and it is not practicable to secure the attendance of a doctor or approved clinician who can submit a report under section 5(2).

It can only be used when the patient is still on the hospital premises.

It permits the patient’s detention for up to six hours, or until a doctor can use section 5(2), whichever is less.

Neither section 5(2) nor section 5(4) can be renewed once the time limit has expired.

Neither section 5(2) nor section 5(4) give any power to give treatment without the consent of the patient.