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Holding Powers

Document Cited authorities 7 Cited in Related
Vincent
AuthorMichael Butler
Pages65-69

Chapter 7

Holding Powers

7.1 INTRODUCTION

The need to detain someone under the MHA 1983 may emerge after he has agreed to informal hospital admission. For example, a patient who has been admitted informally may then decide to leave hospital against medical advice, or disputes may emerge about treatment. To deal with such situations, section 5(1) allows an application to be made for detention under section 2 or section 3 in respect of a patient who is already receiving in-patient treatment.

Section 5 of the MHA 1983 goes further, however, and provides doctors and nurses with interim holding powers to prevent informal patients from leaving hospital when it is clear that detention under section 2 or section 3 may have become necessary and where an assessment therefore needs to be carried out as a matter of urgency. A doctor’s holding power comes from section 5(2) and is for up to 72 hours. A nurse’s comes from section 5(4) and is for up to 6 hours. This chapter considers each one.

7.2 DEFINITION OF ‘IN-PATIENT’

Both types of holding power exist in relation to an ‘in-patient’, a term for which the MHA 1983 provides no definition, but which is said by the 1983 Code (para 12.6) to cover ‘any person who is receiving in-patient treatment in hospital’. Whatever that means, section 5(4) states that the nurse’s holding power only exists in relation to an in-patient ‘who is receiving treatment for mental disorder’. For doctors, however, there is no such qualification and the holding power is therefore exercisable in respect of any in-patient receiving treatment in hospital, whether or not of a psychiatric nature.

66 A Practitioner’s Guide to Mental Health Law

No definition of the term ‘in-patient’ is provided either by the MHA 1983 or the 1983 Code. What then is one? According to Wilson J in R (on the application of DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin), the term ‘suggests the allocation and use, albeit not at all times, of a hospital bed’. If allocation of a bed is to be the determining factor, patients admitted electively for treatment completed within a day and not involving the use of a bed will not fall within the definition. A patient treated in an A & E department would also, presumably, fall outside the definition and could not, therefore, be subject to these holding powers.

7.2.1 Exclusions

As far as either power is concerned, someone who is already receiving in-patient treatment as a detained patient is specifically excluded...

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