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:
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:
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.