Section 5(2) and 5(4): holding powers under the Mental Health Act

What is section 5(2) of the Mental Health Act?

Section 5(2) is the doctor's holding power. It's for the doctor or approved clinician in charge of an inpatient's treatment, when it appears to them that an application for detention ought to be made. A written report to the hospital managers lets the patient be held for up to 72 hours.

It buys time for an assessment, nothing more, and it isn't an alternative to an application (Code 18.9). Informal patients can leave at any time, and they should be told that the holding powers exist (Code 27.38, 26.46).

Section 5(2) criteria: who it covers

• A hospital inpatient. On any ward, for a mental or a physical condition. That includes someone in hospital under a DoLS authorisation (Code 18.7).
• Not someone already detained. Not a patient liable to be detained under s2, s3 or s4, on a CTO, or held under s135 or s136 (s5(6); Code 18.7, 16.76).
• Not the emergency department. Or any other outpatient. Never admit someone informally just to use it (Code 18.8).
• The test. It appears that an application ought to be made, and it isn't practicable or safe to arrange one without holding them meanwhile (s5(2); Code 18.9).
• The right person. The doctor or AC in charge of the treatment, or their nominated deputy, after examining the patient personally. If physical and mental disorders are both being treated, the psychiatrist is preferred (Code 18.4, 18.5, 18.10).

How to use section 5(2): step by step

1. If the patient isn't under a psychiatrist or AC, ring one to confirm your view, ideally before you sign (Code 18.11).
2. Complete Part 1 of Form H1, giving the full reasons why informal treatment is no longer appropriate.
3. Furnish it: hand it to an officer authorised by the managers, use the internal mail, or email it where the managers accept that. The 72 hours start then (Code 18.6; DHSC 2021 guidance).
4. Arrange the assessment for s2 or s3 straight away (Code 18.19).
5. Make sure the patient gets their s132 information about the holding power, orally and in writing (Code 18.40).
6. When it ends, record the time, the reason and what happened next (Code 18.37).

Nominated deputies

• One at a time. The doctor or AC in charge can nominate one deputy, and only one, to act in their absence (s5(3)).
• Who. A doctor or AC on the staff of the same hospital, of either profession. A deputy can't nominate anyone else (s5(3A); Code 18.13).
• By title is fine. Such as the junior doctor on call for that ward, as long as it's always clear who the one deputy is (Code 18.16).
• Their own judgement. You can't tell a deputy to use it, or sign an H1 in advance. You can ask staff to call you if the patient tries to leave (Code 18.18).
• Ask, then report. A deputy who isn't an AC or s12 approved should seek advice first wherever possible, and report back afterwards (Code 18.14, 18.15).

How long does section 5(2) last?

Up to 72 hours from when the H1 is furnished, or from the nurse's record if s5(4) came first (s5(5)). It can't be renewed, but it can be used again on a later occasion (Code 18.38).

Seventy-two hours is the limit, not the target. It ends when a decision is made not to apply, and the patient should be told at once that they're free to leave (Code 18.20, 18.21).

If an application follows, it's usually for section 2, which lasts up to 28 days, or section 3. A patient who goes missing can only be brought back within the 72 hours (s18(5)).

What section 5(2) doesn't allow

• Treatment without consent. Part 4 doesn't apply, so it's consent, or the Mental Capacity Act if they lack capacity for that decision (Code 18.41).
• Transfer under s19. They can move hospital only with consent, or under the MCA if they lack capacity. The receiving hospital may then need its own s5(2) (Code 18.42 to 18.44).
• A tribunal or an IMHA. There's no right to apply to the tribunal, and no statutory right to an IMHA (s66; s130C(2)).
• Discharge by others. Neither the nearest relative nor the hospital managers can discharge a holding power (s23; Code 38.2).

What is section 5(4) of the Mental Health Act?

Section 5(4) is the nurse's holding power. It lets a nurse of the prescribed class stop an inpatient leaving until a doctor or AC who can use s5(2) arrives. The prescribed class is nurses registered in mental health or learning disabilities nursing (Code 18.22; Reference Guide 8.80).

The decision is the nurse's own. Nobody can instruct a nurse to use it, including a doctor on the phone (Code 18.27).

Section 5(4) criteria

• An inpatient already being treated for mental disorder. It can't be used for someone on a medical ward who is only being treated for a physical condition (s5(4); Reference Guide 8.79).
• Still in the hospital. It can be used only while the patient is on the premises (Code 18.24).
• Urgency. Their mental disorder makes it necessary, for their health or safety or to protect others, to stop them leaving immediately.
• No doctor to hand. It isn't practicable to get a doctor or AC who could use s5(2) there immediately.

Before you use it: the nurse's assessment

Weigh how soon the doctor can arrive against how soon the patient means to go. Sometimes you can persuade them to wait and talk it through. Then think about the harm that could follow if they leave (Code 18.29).

• What they say and do. Their stated intentions, their current behaviour, any change from their usual self, and recent contact with family and friends.
• Risk. How likely they are to harm themselves or others or to become violent, any disordered thinking, and any history of impulsiveness.
• Context. Anniversaries, recent disturbances on the ward, other patients' involvement and the existing risk assessments (Code 18.30).

Be especially alert when someone suddenly decides to leave, or becomes set on going urgently. Sometimes there's only time for a brief assessment, and that's allowed (Code 18.31, 18.32).

Using section 5(4): step by step

1. Complete Form H2 and record the time. The patient is detained from that moment (Code 18.26).
2. Get the H2 to the managers as soon as possible, yourself or through someone you authorise (s5(5)).
3. Write your reasons in the notes. Hand over anyone still on s5(4) at shift change (Code 18.33).
4. The doctor or AC should treat it as an emergency and come as soon as possible. Six hours is the limit, not a waiting time (Code 18.34).
5. The hold lapses when they arrive. If they then use s5(2), its 72 hours count from the H2, not the H1 (s5(5); Code 18.35).
6. If nobody who can use s5(2) arrives within six hours, the patient may leave if they won't stay. That's a serious failing, to be reported and investigated (Code 18.36).

How long does section 5(4) last? A worked example

The s5(4) ended at 4pm, when the doctor arrived. The s5(2) runs until 2.10pm three days later, 72 hours from the H2. If he had gone missing at 3pm, he could only have been brought back before 8.10pm, when the six hours ended (s18(5)).

Section 5(2), section 5(4) or section 4?

On a ward, the holding powers do the job. The police shouldn't be called to a ward to use section 136 (Code 16.20). For the emergency route from the community, see section 4.

What's changing under the 2025 Act

The Mental Health Act 2025 rewrites the s5(4) test to match the new detention criteria. The nurse will need to think that serious harm may be caused to the health or safety of the patient or someone else unless the patient is stopped from leaving. That isn't in force yet, so the current test still applies. See the 2025 Act.