FAQs: Unlawful Detention

1. When does your placement or admission become an unlawful detention?
2. Your mum has dementia, she has been saying she wants to go home ever since you helped her move to a care home – does this mean she is being falsely imprisoned?
3. You were kept in hospital after you were medically fit for discharge, was that an unlawful detention?
4. You were told it would not be safe to go home because there was not sufficient care in place – were you unlawfully detained?
5. What is the difference between unlawful detention and false imprisonment?
6. What is the correct procedure for lawfully detaining somebody?
7. You act for a vulnerable young adult who has been taken into residential care against his parents’ wishes. He wants to remain living at home with his family – what can you do to get him home?
8. Can you claim damages for a period of unlawful detention?

When does your placement or admission become an unlawful detention?

If you are kept in hospital or a care home against your wishes without the proper steps being carried out (i.e. not under mental capacity or mental health law), then this may amount to an unlawful detention. Questions to ask include:

• What would happen if you tried to leave? Would you be stopped?
• If you tell them you want to leave but cannot mobilise to get yourself out, will someone assist you to leave?
• If you are not free to leave, and you want to, why are they preventing this?
  • Mental health – judged as a risk to self or others – if this applies, then you should be detained under section 2 or 3 of the MHA 1983. The necessary paperwork must be completed and you have the right to appeal.
  • Mental capacity – judged as lacking the capacity to consent – if this applies, there must be a best interest decision that you need to remain where you are. A Deprivation of Liberty Safeguards authorisation must be granted.

Your mum has dementia, she has been saying she wants to go home ever since you helped her move to a care home – does this mean she is being falsely imprisoned?

It is not uncommon for people with dementia to say that they want to go home or to forget where they are and why. Sometimes gentle reminders can help deal with disorientation.

It can be distressing to hear a care home resident say things like “I feel like a prisoner here” or “I just want to go home”. One client repeatedly phoned a taxi from his room in a care home, giving his home address, despite the fact that his property had been sold by his Attorneys.

If these types of statements or actions continue in their intensity, or if a person is actively trying to leave their placement (e.g. packing their bags or asking for a lift) then there should be a review of the circumstances of the placement to ensure their placement is lawful.

You were kept in hospital after you were medically fit for discharge, was that an unlawful detention?

It may have been. Some clients are temporarily prevented from leaving hospital or a care home (or not assisted to do so when they ask). They may then get home but continue to feel that they were kept in hospital or care without good reason or for longer than was necessary. The conditions in the care home or hospital are irrelevant. If you were not free to leave when you wanted to do so, you were effectively imprisoned.

Not every case is unlawful, but it is only legal to detain someone in certain circumstances, and when the correct procedures are followed.

You were told it would not be safe to go home because there was not sufficient care in place – were you unlawfully detained?

This may still amount to an unlawful detention. Social Services have a duty to safely meet your assessed eligible care and support needs, wherever you live. Social Services may try and restrict the amount of care that is available in one setting (usually your home), by saying the care can be provided at a lower cost in another setting (usually a care home). This can be challenged. The Care Act 2014 is clear that people must not be forced from their homes by the Council imposing the cheapest option.

If you have been prevented from returning home on the basis that it would be unsafe, in addition to challenging this, it may be possible to seek damages for an unlawful detention and/or false imprisonment for the period that you were prevented from returning home.

What is the difference between unlawful detention and false imprisonment?

Many of us think that unlawful detention is something that applies to “prisoners” – for example, people who are wrongly detained at a police station or immigration detention centre. An unlawful detention is one attributable to the state which has acted without valid legal authority. False imprisonment generally refers to a situation which gives rise to a civil claim for damages.

The same legal principles apply to those people who are detained in any location or situation. As an example, it will also apply to people with mental capacity, who choose to go home despite clear evidence that home is not a very safe place for them to live. It can even apply to people who are receiving care in their own homes, if the correct procedures have not been followed (or if they have, but are then successfully challenged).

What is the correct procedure to lawfully detain somebody?

This is a complicated area of law and it is important to get good advice at the earliest possible stage. The process will differ depending on the grounds for the detention.

Mental Capacity Act 2005

If a person lacks mental capacity and is not free to leave their placement, then a decision can be taken that an extended hospital or residential care placement is in their “best interests” even where this contradicts their expressed wishes and feelings. This is referred to as a “deprivation of liberty” under the Mental Capacity Act.

There are steps that Social Services (working with the care home) must take to lawfully authorise a deprivation of liberty under the Mental Capacity Act 2005. This includes ensuring that once an authorisation is granted, the person who is deprived of their liberty can have the deprivation of liberty independently reviewed by a Court if they are objecting to it.

Mental Health Act 1983

Similarly, a person can be lawfully detained for assessment or treatment under the Mental Health Act 1983 against their wishes, in certain proscribed circumstances. Again, they have a right to access independent scrutiny of their placement by a Tribunal and to challenge their detention if they consider it is not lawful. Advice should be sought from a firm specialising in Mental Health Law if you are facing this situation.

If you are not being detained under one of the above acts (or under criminal law) then you could be detained unlawfully.

You act for a vulnerable young adult who has been taken into residential care against his parents’ wishes. He wants to remain living at home with his family – what can you do to get him home?

This may be open to challenge but the detention may not be unlawful if the correct procedures have been followed. If the correct procedure has not been followed, or the law has been wrongly applied, then a specialist lawyer can help the young adult return home. There may also be a claim for damages based on the unlawful and/or false imprisonment.

Our Community Care Team has a strong track record in challenging public bodies to enable a person to return to their home with a safe package of care. This will amount to a dispute about the cost of care at home, and what the responsible authority is prepared to “offer” the person if they choose to go home.

Everyone is different, and we will approach each case on its facts to develop an appropriate strategy, working with clients and their families or representatives. Arguments as to why the person should not return home will of course be material in determining the best next steps.

Can you claim damages for a period of unlawful detention?

Yes, where it can be shown that there has been an unlawful detention. The damages may be for both for false imprisonment (a civil claim), and unlawful detention (a public law challenge under the Human Rights Act 1998).  The amount of damages will vary significantly depending upon:

• The manner of the unlawful detention
• The length of time the person was detained against their wishes
• Any financial loss they have suffered
• Any injury or harm – physical or psychological, that can be shown to have occurred as a result of the detention
• The strength of evidence of the above

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