MHA 1983 s5
Inpatients can be detained for 72 hours by a doctor (s5(2)) or 6 hours by a nurse (s5(4)) in the limited circumstances as described in this section.
Changes made by Mental Health Act 2007
- The power can be exercised by an approved clinician in addition to by a doctor
- There are consequent amendments to the delegation provision in subsection (3)
- Community patients are excluded from the definition of in-patient.
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- CV v South London and Maudsley NHS Foundation Trust  EWHC 742 (Admin) — (1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5(2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP to assume, based on a previous consultation, that the NR would not object. (4) Subsequent rectification under s15(1) could not be relied upon in the circumstances of this case
- R (TF) v SSJ  EWCA Civ 1457 — (1) Having found that the transfer direction under s47 was unlawful the judge erred by exercising her discretion to refuse relief: an unlawful detention cannot be transmuted into lawful detention by the withholding of relief. (2) A decision to transfer a prisoner to hospital at the end of his sentence deprives him of his liberty and engages Article 5, thus heightening the scrutiny as to the evidence the MoJ and court must apply, and putting the onus on the MoJ to show that the decision maker focused on each of the criteria. (3) Applying this scrutiny it would have been very difficult for the MoJ decision maker to be satisfied that the two reporting doctors had applied their minds to treatability, and it appeared that the decision maker herself had not applied her mind to that question; the decision was therefore unlawful. [Caution.]
- R (ZN) v South West London and St George's Mental Health NHS Trust (2010) CO/9457/2009 — The de facto detention of an informal incapacitous patient, and the series of detentions under s5(2), was unlawful. (Claim settled by consent.)
- TTM v LB Hackney  EWCA Civ 4 — (1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be ..→
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 2. Compulsory admission to hospital under Part 2 of the Act [Note that the chapter number relates to the old Reference Guide] — paragraphs 2.70 to 2.85
- Mental Health Act 1983 Code Of Practice for England, 12. Holding powers
- Mental Health (Nurses) (England) Order 2008 — This order replaces the Mental Health (Nurses) Order 1998 in England. It sets out the classes of nurses who can use the six-hour s5(4) holding power. The nurses who can use this power are those registered in either Sub-Part 1 or 2 of the register maintained under article 5 of the Nursing and Midwifery Order 2001 whose registration includes an entry indicating that the nurse’s field of practice is either mental health nursing or learning disabilities nursing. In force 3/11/08 (England).§
Application in respect of patient already in hospital
5.— (1) An application for the admission of a patient to a hospital may be made under this Part of this Act notwithstanding that the patient is already an inpatient in that hospital or, in the case of an application for admission for treatment that the patient is for the time being liable to be detained in the hospital in pursuance of an application for admission for assessment; and where an application is so made the patient shall be treated for the purposes of this Part of this Act as if he had been admitted to the hospital at the time when that application was received by the managers.
(2) If, in the case of a patient who is an in-patient in a hospital, it appears to the registered medical practitioner [or approved clinician] in charge of the treatment of the patient that an application ought to be made under this Part of this Act for the admission of the patient to hospital, he may furnish to the managers a report in writing to that effect; and in any such case the patient may be detained in the hospital for a period of 72 hours from the time when the report is so furnished.
[(3) The registered medical practitioner or approved clinician in charge of the treatment of a patient in a hospital may nominate one (but not more than one) person to act for him under subsection (2) above in his absence.
(3A) For the purposes of subsection (3) above—
- (a) the registered medical practitioner may nominate another registered medical practitioner, or an approved clinician, on the staff of the hospital; and
- (b) the approved clinician may nominate another approved clinician, or a registered medical practitioner, on the staff of the hospital.]
(4) If, in the case of a patient who is receiving treatment for mental disorder as an in-patient in a hospital, it appears to a nurse of the prescribed class—
- (a) that the patient is suffering from mental disorder to such a degree that it is necessary for his health or safety or for the protection of others for him to be immediately restrained from leaving the hospital; and
- (b) that it is not practicable to secure the immediate attendance of a practitioner [or clinician] for the purpose of furnishing a report under subsection (2) above,
the nurse may record that fact in writing; and in that event the patient may be detained in the hospital for a period of six hours from the time when that fact is so recorded or until the earlier arrival at the place where the patient is detained of a practitioner [or clinician] having power to furnish a report under that subsection.
(5) A record made under subsection (4) above shall be delivered by the nurse (or by a person authorised by the nurse in that behalf) to the managers of the hospital as soon as possible after it is made; and where a record is made under that subsection the period mentioned in subsection (2) above shall begin at the time when it is made.
(6) The reference in subsection (1) above to an in-patient does not include an in-patient who is liable to be detained in pursuance of an application under this Part of this Act [or a community patient] and the references in subsections (2) and (4) above do not include an in-patient who is liable to be detained in a hospital under this Part of this Act [or a community patient].
(7) In subsection (4) above "prescribed" means prescribed by an order made by the Secretary of State.
- Mental Health Act 2007 s9, s32 & sch 3; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08