The great majority of patients receiving inpatient treatment for a mental disorder do so on an informal basis (NHS Digital, 2019). Informal status was introduced by the Mental Health Act 1959 and replaced formal voluntary admission, which required patients to give written consent to being hospitalised.
Informal admission is set out as a miscellaneous provision under the Mental Health Act 1983, section 131, and provides that:
‘…nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital … without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital … after he has ceased to be so liable to be detained.’
The negative framing of the section emphasises the 1983 Act's focus on detained patients, but it does allow for a person to be admitted for assessment and treatment without being detained and to remain in hospital after their period of detention has ended (R v Kirklees Metropolitan Borough Council [1993]).
Informal and voluntary status
Informal admission cannot be likened to voluntary admission. Since 1959, detention for mental disorder has been reserved for those actively resisting admission to hospital. Informal admission is used for those who are compliant but lack capacity, for those who fear being detained if they do not come to hospital, as well as those who agree to be admitted (R v Bournewood Community and Mental Health NHS Trust Ex p. L [1999]). The Mental Health Act 1983 codes of practice for England and Wales both say that informal patients must be allowed to leave if they wish, but both also acknowledge that that right is not unfettered and is subject to the holding powers under section 5 of the 1983 Act.
Holding powers
The Mental Health Act 1983, section 5, makes provision for the detention of a patient who is already an inpatient in hospital while they are further assessed for compulsory admission for the assessment or treatment of their mental disorder.
Under section 5(2), if the doctor or approved clinician in charge of the patient's treatment believes that an application for detention should be made, then they may furnish a report to the managers that allows that person to be detained in the hospital for 72 hours.
The purpose of section 5(2) is to lawfully hold an inpatient until they can be assessed for detention under the Mental Health Act 1983. In S v South West London and St George's NHS Mental Health Trust [2011] a woman who had been admitted to a mental health unit informally, but who wanted to leave shortly after admission, claimed that she had been negligently detained under section 5(2) and then section 2 of the Mental Health Act 1983. The Court dismissed the claim and held that, given her presentation at hospital and her history of overdosing, it had been correct to order her detention for assessment. It was highly unlikely that nobody asked her whether she would have been willing to stay voluntarily, but in any event, she had made it clear that she would not. Section 5(2) and section 2 of the 1983 Act had correctly been invoked and applied. The court concluded that had she been discharged and overdosed again, most people would have said that her discharge had been negligent.
The provision can be used in general hospitals as well as mental health inpatient units where it is not practicable or safe to arrange the assessment without initially detaining the person. In Great Western Hospitals NHS Foundation Trust v AA [2014], a woman living with bipolar disorder and 38 weeks' pregnant was admitted to hospital following a suspected seizure. Her waters had broken, but she had not yet gone into labour. She was highly agitated because of her mental disorder and uncooperative with almost every aspect of her obstetric care. She wanted to leave but was detained in the hospital under the Mental Health Act 1983, section 5(2). The Trust later obtained a court order to authorise an urgent Caesarean section.
Holding powers cannot be used with outpatients
The holding power cannot apply where the person is an outpatient. This includes outpatients who attend the emergency department. The codes of practice to the 1983 Act also stress that a patient cannot be admitted as an inpatient with the intention of detaining the person under section 5(2) of the Mental Health Act 1983. In PB v Priory [2018], a woman who attended an outpatient clinic to review her medication was told, some 15 minutes into the appointment, that she was being detained under section 5(2) of the Mental Health Act 1983. When she ran out of the appointment, she was prevented from leaving the building by staff at the clinic. She was found to have been unlawfully detained and settled the case for £11, 500 plus legal fees.
No transfers under section 5(2)
It is sometimes the case that the patient's mental disorder makes their management on the ward difficult, leading nurses and doctors to consider transferring the patient to a more suitable environment while they are detained under section 5(2) of the Mental Health Act 1983. Transferring the patient to another inpatient ward in the same hospital would be lawful, but a transfer to a different hospital, even if it were more suited to the patient's needs, cannot be authorised while they are subject to a holding power.
Section 5(2) of the Mental Health Act 1983 makes clear that it provides for the person to be detained in the hospital for 72 hours. That is, the patient must be held in the hospital where the holding power was applied. If the patient were to be moved, the power to hold the person under section 5(2) of the Mental Health Act 1983 would lapse as soon as they left the hospital.
Nurses' holding power
The Mental Health Act 1983, section 5(4), gives a holding power to certain nurses and provides that:
Unlike the doctors' holding power, which may be used on any inpatient who appears to require assessment for detention under the Mental Health Act 1983, the nurses' holding power can only be applied to a person who is already receiving treatment for a mental disorder as an inpatient.
Nurse of the prescribed class
Only certain classes of nurse have the authority to invoke the nurses' holding power. Under the Mental Health (Nurses) (England) Order 2008 and the Mental Health (Nurses) (Wales) Order 2008, nurses of the prescribed class means a first- or second-level registered nurse whose field of practice is mental health or learning disability (Gov.uk, 2008a; 2008b).
Degree of the disorder
The usual detention criteria under the Mental Health Act 1983 require that the person is experiencing a mental disorder of a nature or degree that warrants continued confinement. In R v Mental Health Review Tribunal for South Thames Region Ex p. Smith [1998] the court held that the nature of a mental disorder concerned its history and pattern of relapse and compliance. The degree of the disorder concerns the current severity of the symptoms and manifestations.
Generally, when assessing a person for detention, account can be taken of either the nature, or the degree, of the mental disorder. However, nurses can only consider the degree of the disorder when deciding to invoke their holding power under section 5(4) of the Mental Health Act 1983. That is, the presenting symptoms and manifestations of the mental disorder must be severe enough for the nurse to be justified in preventing the patient from leaving the hospital until they are assessed by a doctor or clinician who can apply a longer holding power under section 5(2). The decision to use the holding power is for the nurse to make, and they cannot be directed to do so by a doctor or their employing NHS trust. The power cannot be renewed, and once invoked, the nurse should ensure that the patient is seen and assessed for further detention within that 6-hour period, even if the patient argues that they have had a change of heart. Guidance on the use of the nurses' holding power is set out in the code of practice (Department of Health, 2015; Welsh Government, 2016).
COVID-19 emergency arrangements
The Coronavirus Act 2020, schedule 8 paragraph 4, made provision to increase the maximum periods of detention under the holding powers to 120 hours for section 5(2) and 12 hours for section 5(4). Neither of these amendments has come into force and the time limits remain at 72 hours and 6 hours, respectively.
Conclusion
The holding powers in section 5(2) and 5(4) of the Mental Health Act 1983 allow for the detention of inpatients while they are further assessed under the Act. Doctors and approved clinicians can hold a patient for up to 72 hours. Registered nurses, whose field of practice is mental health or learning disability, can hold a patient for up to 6 hours.
Care needs to be taken to avoid unlawful detention when using the holding powers. The holding powers can only be used to secure an assessment of a person's mental disorder under the Mental Health Act 1983. They only apply to inpatients, so cannot be used on outpatients, including patients in the emergency department, and once invoked a patient must be held in that hospital and cannot be transferred.