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Section 5(4)

Contents

  1. Introduction
  2. Purpose
  3. Scope
  4. Responsibilities, accountabilities and duties
  5. Procedure and implementation
  6. Training implication
  7. Monitoring arrangements
  8. Equality impact assessment screening
  9. Associated documents
  10. References
  11. Appendices

1 Introduction

A section 5(4) is more commonly referred to as the “nurses holding power”. This allows a nurse of the prescribed class (nurses registered in sub-parts 1 or 2 of the register maintained by the Nursing and Midwifery Councils whose entry in the register indicated that their field of practice is either mental health nursing or learning disability nursing) to invoke a section 5(4) of the act in respect of a hospital in-patient who is already receiving treatment for mental disorder as an informal patient from leaving the hospital for a period of up to 6 hours.

2 Purpose

A section 5(4) can only be used within the hospital premises (including the hospital grounds) on patients already receiving in patient treatment for a mental disorder.

It cannot be used to return an informal patient back to the ward from leave if they are refusing or to transfer a patient under section 19 to another hospital. Nor can it be used if the patient is not occupying an inpatient bed on a mental health, or learning disability unit, for example, outpatient, health centre, accident and emergency. Nor can it be used on a person subject to a community treatment order (CTO) who agrees to return to the ward on a voluntarily basis.

For staff working on the Tickhill Road Site, Doncaster, please refer to the site map at appendix A which indicates what constitutes the hospital grounds.

3 Scope

Section 5(4) can only be used in respect of a hospital in-patient who is already receiving treatment for mental disorder. It may only be used by a nurse of the “prescribed class” 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, safety or the protection of other people
  • it is not practicable to secure the attendance of a doctor or approved clinician who can submit a report under section 5(2)

4 Responsibilities, accountabilities and duties

4.1 Mental health legislation committee

The trust’s mental health legislation committee is responsible for:

  • overseeing the implementation of the MHA 1983 within the organisation
  • monitoring the trust’s compliance with the legal requirements of the MHA 1983
  • undertaking audit work and agreeing action plans in relation to the MHA 1983
  • providing an annual report on Mental Health Act activity within the trust to the board of directors

4.2 Registered clinical staff

In relation to this procedure all registered clinical staff must:

  • be aware of and comply with the contents of this procedure
  • attend any training which is provided in relation to this procedure
  • complete all the necessary documentation required
  • implement any action plans which arise from the audit of this procedure

4.3 Mental Health Act administrators

The Mental Health Act administrators are responsible for auditing compliance with the standards set out in this procedure and for providing a monthly report to the local mental health legislation monitoring group.

5 Procedure and implementation

5.1 Prior to invoking a section 5(4)

The nurse must always use their skills and expertise in attempting to explain to the patient the reasons for the need to remain on the ward.

Before using the power, they must assess the likely arrival time of the doctor or approved clinician against the likely intention of the patient to leave and the potential risk if the patient leaves the hospital, taking into account:

  • the patients expressed intentions
  • the likelihood of the patient harming themselves or others
  • the likelihood of the patient behaving violently
  • any evidence of disordered thinking
  • the patient’s current behaviour and in particular, any changes in usual behaviour
  • any recently received information from relatives or friends particularly if the date has special significance for the patient
  • any recent disturbances on the ward
  • any relevant involvement of other patients
  • any history of unpredictability or impulsiveness
  • any formal risk assessments which have been undertaken (specifically looking at previous behaviour)
  • any other relevant information from other clinicians of the Multi Disciplinary team

Whilst this assessment should precede action, there may be extreme circumstances where it is necessary to invoke the power without carrying out the proper assessment. Details of the assessment are to be recorded in the patient’s clinical records.

Only after all avenues of persuasion have been exhausted and there is no other least restrictive option available, should the nurse consider invoking a section 5(4).

5.2 Invoking section 5(4)

The decision to invoke the section 5(4) power is the personal decision of the nurse, who cannot be instructed to exercise the power by anyone else. They may however take advice from colleagues for example, the on call manager.

The nurse must complete the form H2 ensuring that they note the exact time the section 5(4) was invoked. Once completed the form H2 allows the nurse to detain the patient. The patients section 5(4) rights require reading and recording into SystmOne as soon as is practicable. (staff are to refer to the trust procedure for informing detained patients of their legal rights under section 132 of the MHA1983).

A record of the reason for invoking the power must be entered onto the patient’s electronic records as soon as possible.

The remainder of time any patients who remain subject to the power at the time of a shift change should be given to staff coming on duty.

It may be necessary to restrain the patient to prevent them from leaving the ward. If this is the case, the minimum amount of force necessary should be used, but if the behaviour warrants the use of seclusion, the trust’s policy on the use of seclusion is to be followed.

5.3 Receipt and scrutiny of the section 5(4) detention papers

Staff are to follow the guidance as set out in the trust procedure for receipting and scrutinising detained patients under the MHA 1983.

However, in the case of a section 5(4) it is good practice for the receipt, and scrutiny of the detention papers to be done by a nurse other than the one who applied the section 5(4).

5.4 When does the section 5(4) end?

The holding power lapses upon the arrival of the doctor or approved clinician onto the ward, but if the doctor/approved clinician decides to complete a report under section 5(2) the period of time the patient was held under section 5(4) will count as part of the 72 hour period.

Note, 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 assess and apply a section 5(2) as they only have provisional registration.

As soon as the doctor or approved clinician arrives the nurse should complete the local form (form H2a) to record the time at which the section 5(4) ended and forward it to the appropriate Mental Health Act office.

The nurse must record and ensure that the patient is kept informed of any changes in their legal status.

Detention under section 5(4) cannot be renewed but this does not prevent its use on future occasions if deemed necessary.

5.5 What if the doctor or approved clinician is unable to attend?

Section 5(4) is an emergency measure, and the doctor or approved clinician should treat it as such by arriving as soon as possible. However, if there is a delay for any reason, the length of this delay should be ascertained by nursing staff and if it appears unacceptable, the next senior on call doctor should be contacted.

If no doctor or approved clinician able to make a report under Section 5(2) has attended within 6 hours, the patient is no longer detained and may leave if not prepared to stay voluntarily.

This should be considered as a serious failing and should be reported by completing an IR1 and investigated locally as such.

5.6 Can treatment be enforced whilst a patient is detained under Section 5(4)?

As a section 5(4) is a holding power to enable a doctor to do an assessment, there is no provision for enforced treatment to be given. The rules in part 4 of the MHA do not apply to patients detained under section 5(4) (for example, they are in exactly the same position as patients who are not detained under the MHA in respect of consent to treatment).

There may, however, 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 is administered under common law as we have a duty of care and only short acting drugs prescribed by the doctor would be given and certainly not a regular long-acting depot injection, as it would have no immediate affect on the patient’s mental state.

6 Training implications

There are no separate identified training needs in respect of the contents of this policy as an explanation of section 5(4) is included in the trust Mental Health Act training.

7 Monitoring arrangements

7.1 How quickly patients are assessed for detention and discharged from the S5(4)

  • How: On-going audit of use of S5(4).
  • Who by: MHA administrator.
  • Reported to: Local Mental health legislation monitoring group.
  • Frequency: Monthly.

7.2 The attendance times of doctors or approved clinicians following the use of S5(4)

  • How: On-going audit of use of S5(4).
  • Who by: MHA administrator.
  • Reported to: Local Mental health legislation monitoring group.
  • Frequency: Monthly.

7.3 The number of detentions under S2 or S3 following use of S5(4)

  • How: On-going audit of use of S5(4).
  • Who by: MHA administrator.
  • Reported to: Local Mental health legislation monitoring group.
  • Frequency: Monthly.

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 this policy.

8.2 Mental capacity act

Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individual’s 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).

10 References

  • Department of Health: Mental Health Act 1983, Code of Practice 2015
  • Jones R (2009) Mental Health Act Manual, Seventeenth Edition, Sweet and Maxwell

11 Appendices

11.1 Appendix A Tickhill Road Site map

11.2 Appendix B RDASH Form H2(a) Record at which power to detain under Section 5(4)

Document control

  • Version: 9.
  • Ratified by: Mental health legislation operational group.
  • Date ratified: 9 August 2021.
  • Name of originator or author: MHA manager.
  • Name of responsible individual: Mental health legislation operational group and executive medical director.
  • Date issued: 1 September 2021.
  • Review date: June 2024.
  • Target audience: Mental health and learning disability clinical staff.

Page last reviewed: April 30, 2024
Next review due: April 30, 2025

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