Unlawful Detention

When is it lawful to keep somebody in hospital or care against their wishes?

A person can be lawfully detained, even where they cannot or do not consent to being in a hospital or care home. However, the detention will only be lawful if the correct process has been followed. The detention must be properly authorised under the Mental Health Act 1983, or under the Mental Capacity Act 2005. Even where it has been authorised, a detention may be open to challenge through Deprivation of Liberty Safeguards.

The most common unlawful detentions we deal with are situations where a person is kept in a care setting or hospital against their wishes. This can happen one of three ways:

1. After a person is assessed as lacking mental capacity, but there is no deprivation of liberty authorisation in place. This is unlawful regardless of whether the person consents to being in the placement, if they are not free to leave
2. After a person is assessed as having mental capacity, and saying they want to leave, but no action is taken to enable them to do so
3. Where no capacity assessment has been undertaken, and the person isn’t free to leave (whether because they are prevented if they try to leave, or they cannot move independently) and does not or cannot consent to being in the setting they are in

People in these situations are being unlawfully detained since a proper process has not been followed under the relevant law. Depending on who is responsible, this may amount to a serious human rights breach and/or a “false imprisonment”.

People may find that they are detained unlawfully if state bodies such as hospitals and social care departments fail to follow due process due to their own resource pressures. A person may be unlawfully deprived of their liberty simply because it is cheaper for social services or the NHS to leave them where they are than to provide the necessary care at home. This is almost always open to challenge.

If you suspect that you, your relative or someone that you act for as Attorney or Deputy is being unlawfully detained, then action can be taken to address this. We can provide advice and assistance:

1. To end the unlawful detention, and trigger an urgent review of where that person should live and be cared for; and/or
2. To seek redress for any financial losses, and potentially also for the impact the unlawful detention has had on the person.

This is a very complex area of law with a lot of competing factors to consider. We strongly recommend seeking expert advice if you or someone you know is affected by these issues.

If you think you, a relative or somebody you act for as Attorney has been unlawfully detained, contact us today on 01273 609911, or email info@ms-solicitors.co.uk to find out more.