Can a patient be put under a section 5(2) (Mental Health Act) if they are an inpatient, lack capacity to consent to informal admission, and nursing staff deem it unsafe for them to take leave, following the lapse of their section 3 (Mental Health Act) due to an administrative error?

Section 5(2) Application Following Lapsed Section 3

No, a Section 5(2) cannot be lawfully applied in this situation because the patient is not currently attempting to leave the hospital, which is a fundamental requirement for invoking this holding power under the Mental Health Act 1983.

Legal Framework for Section 5(2)

Section 5(2) is specifically designed as an emergency holding power that can only be used when:

• An informal inpatient is actively attempting to leave the hospital and detention is necessary for their health, safety, or protection of others 1
• The patient must be currently an informal patient at the time of application 1
• There is insufficient time to arrange formal assessment for detention under Section 2 or Section 3 1

Why Section 5(2) Does Not Apply Here

The critical issue is that your patient is not attempting to leave the hospital right now. They are merely requesting leave, which is fundamentally different from attempting to discharge themselves:

• Requesting leave is not the same as attempting to leave - the patient remains willing to stay in hospital, they simply want temporary absence 1
• Section 5(2) requires an active attempt to leave, not a hypothetical future risk or disagreement about leave arrangements 1
• The holding power cannot be used pre-emptively to prevent a patient from potentially leaving in the future 1

The Capacity Issue Creates Additional Complexity

Because the patient lacks capacity to consent to informal admission, they cannot legally be an informal patient in the first place:

• Patients who lack capacity to consent to admission must be detained under the Mental Health Act or admitted under the Mental Capacity Act 2005 Deprivation of Liberty Safeguards 1
• A patient without capacity cannot be an "informal patient" as they cannot validly consent to their admission 1
• Section 5(2) only applies to informal patients, so it cannot be used for someone who lacks capacity to be informal 1

Correct Immediate Actions

You must urgently arrange a new Section 3 assessment while managing the patient's current legal status:

1. Expedite the new Section 3 recommendation immediately - contact the approved mental health professional and Section 12 doctors as a priority 1

2. Do not allow the patient to leave while awaiting the new Section 3, as they lack capacity and it would be unsafe - this can be justified under common law duty of care and the Mental Capacity Act 2005 best interests principle 1, 2, 3

3. Document clearly that the patient lacks capacity, that detention is in their best interests pending formal assessment, and that you are acting to prevent serious harm 1, 2, 3

4. If the patient actively attempts to leave before the Section 3 is in place, you may need to physically prevent them from leaving under common law/Mental Capacity Act principles, but this is not a Section 5(2) situation 1, 2, 3

Critical Pitfalls to Avoid

• Do not apply Section 5(2) when a patient is not actively attempting to leave - this is an unlawful use of the holding power and constitutes false imprisonment 1
• Do not treat a patient who lacks capacity as an informal patient - they require formal legal authority for their detention 1
• Do not delay arranging the new Section 3 - the administrative error has created an urgent situation requiring immediate rectification 1
• Do not allow the patient to take leave simply because you cannot use Section 5(2) - use Mental Capacity Act best interests principles to refuse unsafe leave while the Section 3 is being arranged 1, 2, 3