Unlawful Detention Solicitor

An Unlawful Detention Solicitor can advise you of your rights if you are detained (under Section) or Informal (a voluntary patient). This includes considering whether your detention is legal and we may represent you in any subsequent unlawful detention claims, if necessary.

When somebody is detained under Mental Health Legislation, there are formalities involved to ensure that this is carried out lawfully. In some circumstances, these formalities are not complied with, or someone is “de facto” detained despite not being sectioned, which may result in somebody being unlawfully detained in hospital.

If a patient has agreed to remain informally in hospital, they can assess whether they are being held unlawfully by questioning whether they are able to leave the hospital. If someone is voluntarily in hospital, they are allowed to leave at any time.

If a patient is detained under the Mental Health Act, it can be trickier to determine whether they are lawfully sectioned. Sometimes, the initial sectioning process has not been complied with, or the patient’s section has not been renewed in time.

If a patient is detained under the Mental Capacity Act, then A Deprivation of Liberty Safeguards authorisation must be granted. You may only be detained where it is in the absolute best interests of the patient and those around them to remain detained.

It is important to remember that if the patient does lack capacity, they may be disoriented and request to go home. It is not uncommon for people with dementia, for example, to forget and question where they are and why. It can understandably be distressing to hear a loved one in a care home say things such as ‘I want to be at home’. If a care home resident continues making such requests, or if they are actively trying to leave their placement, then it may be necessary to review the circumstances of the placement.

If you believe that you, or your family member, are being unlawfully detained, we strongly advise that you seek legal advice. Our team can advise you of your rights if you are detained. This includes under Section or Informal (a voluntary patient). We can represent you in any subsequent unlawful detention claims, if necessary.

Cases of this nature are usually funded by Legal Help, subject to a means assessment. This means that our advice and assistance is normally free of charge under the Legal Help scheme.

Our expert team of Community Care Lawyers understand that unlawful detention can be an incredibly challenging and difficult to comprehend process. We always treat every case with sensitivity. Our specialist team are on hand to support and guide you through the process. You can call us on 0333 240 7373 or contact Reeds Solicitors LLP on info@reeds.co.uk.

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FAQ

A patient may be detained for different reasons, and the process will therefore be assessed on a case by case basis. Some example, however, are as follows:

Mental Capacity Act 2005

In cases where a person lacks mental capacity to make a decision about their care and/or residence, this decision can be made for them. This may be in the form of an extended hospital or residential care placement. This decision must only be made in instances where it is in the patients’ best interests. This process is referred to as a Deprivation of Liberty (DoL) under the Mental Capacity Act.

Processes must be followed, and social services must ensure the correct steps are being taken to lawfully authorise a deprivation of liberty.

The patient who is deprived of their liberty may object to the decision. In such instances, they can have an independent review through the Court.

Mental Health Act 1983

Similar to the Mental Capacity Act 2005, a patient may be lawfully detained for assessment or treatment under the Mental Health Act 1983.

If a patient wishes to challenge this decision, they again have the right to an independent review through the Mental Health Tribunal.

If you believe that you, or your family member, are being unlawfully detained, we strongly advise that you seek legal advice. Our team can advise you of your rights if you are detained. This includes under Section or Informal (a voluntary patient). We can represent you in any subsequent unlawful detention claims, if necessary. You can call us on 0333 240 7373 or contact Reeds Solicitors LLP on info@reeds.co.uk.

It is easy to understand why so many of us to hypothesise that unlawful detention is something that applies to ‘prisoners’. Whilst the principle is the same for those who are detained under any circumstance, unlawful detention and false imprisonment are two different things.

Unlawful detention is where you are kept in hospital or a care home against your wishes and there is no statutory framework authorising your detention. False imprisonment generally applies to people who are wrongly detained at the police station or immigration detention centre, for instance.

The Care Act 2014 details that patients must not be detained, nor forced from their homes, because it is cheaper to keep them in a hospital or a care home than it is to provide at-home care.

It is the duty of social services to meet your assessed eligible care and support needs, no matter where you live. If you are told that you are remaining detained because the amount of care at home is less than you will be provided at the hospital or care home, you may challenge this. Social services are not allowed to say the care can be provided at a lower cost in your hospital or care home than at your residence.

If it can be proven that you have been unlawfully detained, then you be able to claim compensation. The amount as to which you will be eligible for may vary significantly depending on the evidence pertaining to:

  • The conditions of the unlawful detention.
  • The length of time you were detained for against your wishes.
  • Any financial loss you have suffered as a result of the detention.
  • Any injury or harm. This includes both physical and psychological.

It is important that people are lawfully detained because this ensures they are eligible for safeguards if they are objecting to their detention. This can be via the Mental Health Tribunal or the Court of Protection. Someone detained unlawfully does not have access to these safeguards.

If someone is unlawfully detained, they may be able to:

  1. Ask the detaining authority to authorise their detention in accordance with the law;
  2. Apply for a Judicial Review of their detention; or
  3. Apply for a writ of Habeas Corpus which compels the detaining authority to release somebody if they are not detained in accordance with the law.

These are all complex undertakings, and it is essential that you seek legal advice to determine whether you are lawfully detained and what options are available to you.

Someone can be detained under Sections 2 and 3 of the Mental Health Act on the recommendations of two doctors and an Approved Mental Health Professional (AMHP). The Section 2 can only last for 28 days, and the Section 3 can be indefinite but must be regularly renewed by the patient’s Responsible Clinician.

The initial sectioning process must comply with the requirements set out in Sections 11 and 12 of the Mental Health Act which includes:

  • A discussion with the patient’s Nearest Relative,
  • For one of the doctors to be S.12 approved in the diagnostics and treatment of mental disorders,
  • For there to be no conflict of interest, and
  • The sectioning process complying with certain time limits between recommendations.

A patient under Section 3 must also have their section renewed regularly, and the doctor must give adequate reasons for doing so on a prescribed form.

If any of these are in doubt, then the possibility of unlawful detention should be explored.