Contents
1 Introduction
A section 5(2) is more commonly referred to as the doctor’s holding power. The power can be used where a doctor or other professional (non-medical approved clinician (AC)) in charge of the treatment of a hospital in-patient (or their nominated deputy) conclude that an application for detention under the Mental Health Act should be made. It authorises the detention of the patient in the hospital for a maximum of 72 hours in order that an assessment can be made for possible detention under section 2 or 3 of the Mental Health Act 1983 (MHA 1983).
Note, for patients detained under section 5(4) immediately prior to the section 5(2) being applied, the 72 hours will begin from the time when the section 5(4) was applied.
2 Purpose
The purpose of this procedure is to set out the arrangements within the trust for the detention of an inpatient under a section 5(2).
3 Scope
The contents of this procedure apply to all clinical staff working within the trust’s mental health and learning disability inpatient services.
In regard to the patients that fall under the scope of this procedure the Code of Practice 2015 (18.7) states that:
- “in this context, a hospital in-patient means any person who is receiving inpatient treatment in a hospital. It does not apply to a patient who is already liable to be detained under Section 2, 3 or 4 of the MHA 1983, subject to a community treatment order or a person who is being kept in a hospital as a place of safety under section 135 or 136. It includes patients who are in hospital by virtue of a deprivation of liberty authorisation under the Mental Capacity Act 2005. It does not matter whether the patient was originally admitted for treatment primarily for a mental disorder. The patient could be receiving in-patient treatment in a general hospital for a physical condition”
The 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 powers to detain under section 5(2).
4 Responsibilities, accountabilities and duties
4.1 Mental health legislation operational group
The trust mental health legislation operational group is responsible for:
- monitoring compliance with the legal requirements of the MHA 1983
- the review and issuing of all Mental Health Act policies and procedures
- advising on any staff training needs in respect of the MHA 1983, and the associated trust policies and procedures
4.2 Doctor or other professional (non-medical approved clinician)
The doctor or other professional (non-medical AC) in charge of the patient’s care is responsible for their overall care and treatment whilst they are receiving care as an inpatient. Wherever possible the doctor or other professional (non-medical AC) should be involved in decision-making and have a responsibility to provide the required care in the least restrictive way.
However, it is recognised that the doctor or other professional (non-medical AC) may not always be available when an assessment for detention under section 5(2) is required and the MHA 1983 makes provision for them to nominate a deputy to assume their responsibilities in their absence.
In the event that a deputy exercises their nominated powers the doctor or other professional (non-medical AC) should review the decision to detain at the earliest opportunity.
4.3 Nominated deputy
The Code of Practice 2015 (18.12) allows the doctor or other professional (non-medical AC) in charge of an in-patient’s treatment to nominate a deputy to exercise section 5(2) powers in their absence. The responsibility will therefore devolve to the deputy.
It is permissible for deputies to be nominated by title, rather than by name for example, the junior doctor on call (provided that there is only one nominated deputy for any patient at any time and it can be determined with certainty who that nominated deputy is). If nominated deputies are not approved clinicians (or section 12(2) approved) they should wherever possible seek advice from the person for whom they are deputising before using a section 5(2).
It is also to be noted that only doctors who are fully registered to practice can apply a section 5(2). Therefore, FY1 doctors cannot apply a section 5(2) as they only have provisional registration. It is to be noted that within RDaSH the nominated deputy will be the first on call junior doctor.
Note, only a doctor or approved clinician on the staff of the same hospital may be a nominated deputy. It is unlawful for a nominated deputy to nominate another (Code of Practice 2015 (18.13)).
4.4 Nurse in charge of the ward
It is the responsibility of the nurse in charge of the ward to:
- check and receipt the detention papers on behalf of the hospital managers
- keep a copy of the detention papers and send the originals to the Mental Health Act office
- provide the patient with an explanation of their legal rights both verbally and in writing
- notify the approved mental health professional (AMHP) of the fact that a section 5(2) has been applied
5 Procedure and implementation
5.1 When can a section 5(2) be applied
A section 5(2) can only be applied if the person is receiving care as an informal inpatient. It is only to be used in an emergency situation when all other least restrictive measures have been tried and failed and when it is not possible or safe to wait for the completion of an assessment for detention under section 2 or 3.
The holding power should only be used immediately after the doctor has personally examined the patient (Code of Practice 2015 (18.10)).
5.2 Required documentation
The doctor must complete the form H1 which, once completed, will allow for the patient to be detained for up to 72 hours.
The period of detention starts at the moment the doctor’s report is furnished to the hospital managers (for example, when handed to the nurse in charge of the ward).
The nurse in charge of the ward will then accept and receipt the section on behalf of the hospital managers (refer to the receipt and scrutiny of detention papers policy).
The reason for invoking the section 5(2) must be entered into the patient’s electronic patient record (SystmOne) by the doctor who is applying it.
In any areas that still operate with separate medical and nursing records the nurse in charge of the ward should also make an entry into the nursing records.
The detention of the patient should also be recorded on the ward’s 24-hour (or equivalent) report.
5.3 Explanation of the patient’s legal rights
The trust procedure for informing detained patients of their legal rights under section 132 of the MHA 1983 must be followed. The patient must be informed of the consequences of the section 5(2) and provided with an explanation. A leaflet for the section 5(2) must be handed to them and this must be documented on SystmOne.
5.4 Action following the application of a section 5(2)
Arrangements for an assessment to consider an application under section 2 or 3 of the MHA 1983 should be put in place as soon as the Section 5(2) is received.
The nurse in charge will notify either the local AMHP team of the fact that a section 5(2) has been applied (following the area specific guidance below). This is to ensure that a consultant or section 12(2) doctor and AMHP may undertake a MHA assessment as soon as possible to establish whether an application under part II of the MHA 1983 should be made.
Notification of this contact with the local AMHP team will be recorded by the nurse in charge on the patient’s electronic record (SystmOne).
Rotherham:
- contact the AMHP team on 03000 215670
Doncaster:
- contact the single point of access (SPA) on 01302 566999
North Lincolnshire:
- contact the North Lincolnshire Council Social Care team to speak with an AMHP (approved mental health professional) on 01724 297000 option 4 (people issues) then option 4 (adult social care), then option 2 (first contact, safety), hold to be transferred to out of hours team (if out of hours)
5.5 Inpatients on the mental health unit who are transferred during their stay to the general hospital trust
For any informal patient from the trust’s mental health services who during their admission is transferred to the acute general hospital for physical care and treatment, for the purposes of section 5(2), the acute general hospital consultant is the person who should invoke the powers under section 5(2).
Where a doctor at the acute general hospital does exercise the power under section 5(2), they should, where possible seek advice from a consultant psychiatrist or approved clinician before using the power under section 5(2).
They should then make immediate contact with a consultant psychiatrist or approved clinician for assessment for possible detention under the act.
In the event that the patient is deemed to require increased levels of observation staff should refer to the care of inpatients who are identified as posing a significant risk to themselves or others policy.
5.6 Patients admitted directly to the general hospital trust
Any patient admitted directly to the general hospital trust, who is not at the time under the care of a psychiatrist or approved clinician, and who subsequently requires detention under section 5(2) of the MHA 1983, will remain the responsibility of the consultant physician or surgeon for their physical care and treatment. The RDaSH consultant psychiatrist can be said to be “in charge of” the patient’s treatment for their mental disorder, due to the memorandum of understanding that RDaSH has with its acute general hospital trusts (Rotherham General Hospital, Doncaster Royal Infirmary and Scunthorpe General Hospital).
Although the patient is admitted to the general hospital trust, ideally a psychiatrist should be making the decision about a section 5(2) and therefore if a doctor at the acute general hospital exercises the power under section 5(2), they should make immediate contact with a consultant psychiatrist or approved clinician to obtain confirmation of their opinion that the patient needs to be detained so that an application can be made. If possible, the doctor should seek such advice before using the power under section 5(2).
It is permissible for deputies to be nominated by title, for example, junior doctor on call, provided that there is only one nominated deputy for any particular patient at any time and that it can be determined with certainty who that nominated deputy is.
If the doctor normally in charge of a patient’s treatment, or that doctor’s nominated deputy, has little experience of operating the act (or indeed treating mental disorder), he or she should, wherever possible seek advice from someone who is an approved clinician or section 12 approved doctor (Code of Practice 2015, 18.14) prior to using a section 5(2). Acute general hospital consultants and doctors invoking a section 5(2) should make immediate contact with the Local AMHP team to facilitate a MHA assessment.
The nursing care of the patient is the responsibility of the general hospital trust, and the trust does not routinely provide nurses to do one to one observation in these circumstances. If this is required, the general hospital trust would have to liaise with RDaSH around its capacity to provide this or engage agency staff to provide it.
The general hospital trust is responsible for receipting the detention papers, and reading the patient their legal rights if they detain a patient under section 5(2) will be undertaken by RDaSH staff on their behalf. Staff should refer to the section 132 informing detained patients of their legal rights procedure, and the receipt and scrutiny of detention papers policy (MHA 1983).
On completion of the section papers contact should be made with the MHA office.
Note, under no circumstances can a patient be transferred to any of our units from a general hospital ward under a section 5(2) MHA. For a transfer to occur the patient would either have to come informally or under a section 2 or 3 unless certain criteria are met (see 5.8 below).
5.7 When can a patient detained on a section 5(2) be lawfully transferred?
A patient who is subject to section 5(2) of the MHA 1983 but needs to go to another hospital urgently for treatment, security, or other exceptional reasons, can only be taken there:
- if they consent to the transfer
- if the patient lacks capacity to consent to the transfer, any transfer must be carried out in accordance with the MCA, including that it is in the person’s best interests and any restrictions on the person’s liberty are permitted by the MCA
- if the patient requires lifesaving treatment (such as following an overdose)
5.8 When does detention under section 5(2) end?
The Code of Practice 2015 (18.20) states that “detention under section 5(2) will end immediately where:
- an assessment for admission under section 2 or 3 is made, and a decision is taken not to make an application for detention under section 2 or 3
- the doctor or other professional (non-medical AC) decides that no assessment for possible detention under section 2 or 3 needs to be carried out
In circumstances where the acute general hospital doctor has exercised their power under section 5(2), they can end the section 5(2) prior to an assessment being carried out, where it is clear that for some reason the assessment is no longer needed. However best practice would be that there is some liaison and advice taken from the RDaSH consultant psychiatrist prior to taking this decision.
In each of these cases the patient’s doctor or other professional (non-medical AC) must complete the local form section 23 to regrade the patient to informal status and the patient should be notified that they are no longer detained under the holding power and are free to leave the Hospital, unless of course the patient is to be detained under some other authority.
5.9 Treatment
As a section 5(2) is a holding power to enable assessment to take place for possible detention under a section 2 or 3, there is no power under the MHA 1983 to treat them without their consent.
However, there may be extreme circumstances where, due to the distress caused to the patient by their mental state, it would be negligent not to give some medication. In this case, it should be administered under common law as we owe a duty of care to our patients.
However only short acting drugs prescribed by the medic would be given and certainly not a regular long-acting depot injection, as it would have no immediate effect on the patient’s mental state.
Nursing care remains the responsibility of the acute trust we will support where we can.
6 Training implications
There are no separate identified training needs in respect of the contents of this policy as an explanation of section 5(2) is included in the trust Mental Health Act training.
7 Monitoring arrangements
7.1 Compliance with the legal requirements and time frames for the section 5(2)
- How: Audit.
- Who by: MHA administrator.
- Reported to: Local mental health legislation monitoring group.
- Frequency: Monthly.
7.2 Compliance with the legal requirements and time frames for the section 5(2)
- How: Audit.
- Who by: MHA administrator.
- Reported to: Mental health legislation monitoring group.
- Frequency: By exception.
7.3 Compliance with the legal requirements and time frames for the section 5(2)
- How: Audit.
- Who by: MHA administrator.
- Reported to: Truth mental health legislation committee.
- Frequency: By exception.
8 Equality impact assessment screening
To access the equality impact assessment for this policy, please email rdash.equalityanddiversity@nhs.net to request the document.
8.1 Privacy, dignity and respect
The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, “not just clinically but in terms of dignity and respect”.
Consequently, the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity, and respect, (when appropriate this should also include how same sex accommodation is provided).
8.1.1 Indicate how this will be met
No issues have been identified in relation to privacy, dignity, and respect.
8.2 Mental Capacity Act (2005)
Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individuals’ capacity to participate in the decision-making process. Consequently, no intervention should be carried out without either the individual’s informed consent, or the powers included in a legal framework, or by order of the court.
Therefore, the trust is required to make sure that all colleagues working with individuals who use our service are familiar with the provisions within the Mental Capacity Act (2005). For this reason, all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act (2005) to ensure that the rights of individual are protected, and they are supported to make their own decisions where possible and that any decisions made on their behalf when they lack capacity are made in their best interests and least restrictive of their rights and freedoms.
8.2.1 Indicate how this will be achieved
This policy will be implemented in accordance with the guiding principles of the Mental Capacity Act (2005) (section 1).
9 Associated documents
- Procedure for informing detained patients of their legal rights under section 132 of the Mental Health Act 1983, clinical policies, Mental Health Act section.
- Procedure for the transfer of service users detained under the Mental Health Act 1983 to another Mental Health Hospital, clinical policies, Mental Health Act section.
- Procedure for the use of section 5(4), clinical policies, Mental Health Act section.
- Guidance to staff on the receipt and scrutiny of section papers, clinical policies, Mental Health Act section.
- Policy for the care of inpatients who are identified as posing a significant risk to themselves or others, clinical polices, general section.
10 References
- Department of Health: Mental Health Act 1983, Code of Practice 2015.
Document control
- Version: 10.
- Unique reference number: 98.
- Ratified by: Mental health legislation operational group.
- Date ratified: 28 July 2023.
- Name of originator or author: MHA manager.
- Name of responsible individual: Mental health legislation operational group.
- Date issued: 17 August 2023.
- Review date: 31 August 2026.
- Target audience: Mental health and learning disability clinical staff.
- Description of changes: Full review with wording changes to 5.5.
Page last reviewed: December 11, 2024
Next review due: December 11, 2025
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