Holding Powers Under Section 5 of the Mental Health Act: A Care Staff Guide

Not every patient in hospital is detained. Many are informal, meaning they are there voluntarily. But sometimes an informal patient says they want to leave when staff believe they need an urgent mental health assessment. Section 5 of the Mental Health Act 1983 gives short-term holding powers for exactly that situation, to hold a patient while an assessment takes place. This guide explains how the doctor's and nurse's holding powers work and what care staff should know.

It is general information, not legal advice. Always follow the Code of Practice and your organisation's policy, because the paperwork and process need to be exactly right.

Why holding powers exist

Holding powers apply to hospital inpatients who are not already detained. They give time for a doctor, and an approved mental health professional, to decide whether a formal application for detention should be made. Because they remove someone's liberty on a short-term basis, they are tightly limited and carry few of the rights that come with a full section. Patients held under section 5 have no right to apply to a tribunal.

Section 5(2): the doctor's holding power

Under section 5(2), a registered medical practitioner or approved clinician in charge of an inpatient's treatment can furnish a written report to the hospital managers if they think an application for detention under Part 2 of the Act should be made. The report allows the patient to be held for up to 72 hours.

Key points:

• it applies only to patients who are inpatients and not otherwise detained
• the doctor can nominate another suitable clinician to use the power in their absence
• the 72 hours is intended to allow a formal assessment to be arranged, and the power ends when an application for detention is made or the period expires
• there is no right to apply to the tribunal while held under it

The power can apply to inpatients receiving treatment for any condition, including those on general wards, which is why staff outside mental health services should know it exists.

Section 5(4): the nurse's holding power

Section 5(4) allows a nurse of a prescribed class to hold a patient for up to six hours. According to published guidance, it can be used by a first or second level registered nurse whose field of practice is mental health or learning disability. It applies where the patient is already receiving treatment for a mental disorder as an inpatient.

Two conditions must be met:

• the patient appears to be suffering from a mental disorder to such a degree that it is necessary for their health or safety, or for the protection of others, for them to be immediately restrained from leaving hospital
• it is not practicable to secure the immediate attendance of a doctor or approved clinician who could use the section 5(2) power

The nurse must record the decision in writing. The six hours run from the time the report is made, or until a doctor arrives to assess the patient, whichever comes first. The power cannot be renewed, and a doctor should assess the patient promptly to decide whether to use section 5(2) or whether other steps are needed. A nurse looking at whether to use the power should consider the patient's current presentation, rather than their past history.

What happens next

Both holding powers exist to allow a proper assessment. After a holding power is used, the usual routes are:

• the patient is assessed, and an application is made under section 2 or section 3. See our guide to section 136 and places of safety for another emergency power, and our guide to Mental Health Act 2025 changes for upcoming changes.
• the patient is assessed and found not to need detention, and returns to informal status
• the period expires without any application, in which case the patient is no longer held

What care staff should do

• Know the policy. Make sure you know who in your service is authorised to use holding powers, and how to get hold of them quickly.
• Do not hold someone informally on your own authority. Preventing a patient from leaving without legal authority can be unlawful.
• Call for help early. If a patient wants to leave and you are worried, get a qualified nurse or doctor to the ward straight away.
• Record accurately. Note times, what the patient said and did, and who was told.
• Look after the patient. Treat them with dignity, explain what is happening and keep them safe.

When informal patients lack capacity

Where an informal patient lacks capacity to consent to being in hospital, other safeguards may apply, such as the Deprivation of Liberty Safeguards. See our Mental Capacity Act and DoLS training guide. Holding powers are not a substitute for these, and they are not intended for routine use.

Frequently asked questions

How long does a nurse's holding power last?

Up to six hours from when it is recorded, or until a doctor arrives to assess the patient, whichever is sooner. It cannot be renewed.

How long does a doctor's holding power last?

Up to 72 hours.

Can a patient appeal a holding power?

No. There is no right to apply to the tribunal under section 5, which is part of why it is so limited.

Can healthcare assistants use holding powers?

No. The nurse's power is limited to prescribed classes of nurse, and the doctor's power to specified clinicians.

Where can teams find training?

See the CPD hub for professional development options for care and healthcare teams.

Learnsignal will update this guide as the Mental Health Act reforms are put into practice.