Community Care lawyers answer frequently asked questions on unlawful detention and false imprisonment
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:
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.
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.
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.
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).
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.
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.
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.
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.
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:
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021