Harringay, Haringey - So Good they Spelt it Twice!
How Long May Our Mental Health Services Hold You Unlawfully?
A case has recently come to my attention.
A local resident was recently taken from his home by police under a warrant from a magistrate under section 135(1) of the Mental health Act 1983. That section of the Act allows the police, a doctor and an Approved Mental Health Professional (an AMHP is usually a social worker employed by the local authority) to take a person suspected of being mentally ill and not living under proper control to a place of safety for assessment of their condition. The law gives power for the person to be held in the place of safety (in this case Chase Farm hospital) for up to 24 hours for the assessment and if necessary detention under the Act into a psychiatric hospital. The time limit was until 2017 seventy two hours but as there is no right of appeal against this type of detention it was reduced in line with the timescales one can be held in police custody before charge.
This particular resident was taken to Chase Farm hospital on a Friday at about 10.30am. He was assessed by two doctors and an AMHP and not placed under any section of the Act as the local Mental Health Trust had no beds in which to place him. The law is clear that if the person has not been detained by the time the 24 hours are up the legal power to hold the person is ended. This particular Haringey resident was though kept in hospital and all his requests to leave a locked space were denied despite the legal power to hold him in detention having ended. He was eventually legally detained under the Mental Health Act to a psychiatric hospital around 02.30am on the following Monday morning. The answer to my discussion title above is therefore, in Haringey you may be held unlawfully in detention for approximately 40 hours by the mental health services.
You may think that with the Human Rights Act and indeed Magna Carta the state cannot in the UK hold you without lawful process. If you are deemed to have a mental disorder that is not the case. I am informed that this practice of unlawful detention is now rife in England and Wales. One in four of the population are deemed to be subject to a mental disorder at some time in their life. So if you think that state can't unlawfully detain you, think again.
Incidentally, if you are rich and well connected you might have access to a lawyer and the High Court on a weekend to demand habeas corpus. Who of us is that?
Replies to This Discussion
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Permalink Reply by Emma on
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The person in question will have the right to see an Independent Mental Health Advocate that will advocate on their behalf and if any injustices are revealed they can help.
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Permalink Reply by OneWomanAndHerDog on
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Rethink suggest that a person doesn’t have access to an IMHA under a section 135 detention:
https://www.rethink.org/advice-and-information/rights-restrictions/...
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Permalink Reply by Richard Matz on
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On the basis of the facts you have supplied, it appears that the Haringey resident in question can make a case for false imprisonment (big buck$). The 24 hours can be extended to 36 hours only if their presentation makes it impossible for them to be interviewed and assessed in an appropriate manner (through incapacitation through drink or drugs)
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Permalink Reply by jp quethiock on
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Richard is correct about the time limits (an extension did not apply in the case) but once again getting a lawyer these days when legal aid is so restricted means that the less powerful cannot always get redress after the event for the state's wrongs to them. Emma is also correct about the IMHA but once again, that isn't any answer to redress a wrong. The IMHA can advise around legal detentions but not previous unlawful acts which can only be redressed either through the courts or a complaint to the Ombudsman. And as One Woman and Her Dog says, the section 135 has no right of appeal and no access to an advocate. A section 135 detention is akin to arrest under criminal law in which case the person should have access to a lawyer to advise them of their rights. Police stations have duty solicitors on rota but in A&E it seems one can go whistle (as someone recently put it).
I simply raise the matter here to alert residents to the fact that if you are deemed to belong to a certain group (the mentally disordered; itself a protected category in other legislation) you may find that your legal freedoms are taken from you almost by way of established practice in the mental health services now. It appears to be a dirty secret that very well paid health managers do nothing about. Public services these days are not about service but costs and it is cheaper to pay off the occasional threat of legal action than to ensure adequate services are in place.
Thanks for your comments, I have let the resident's family know that they are not alone against an unfeeling bureaucracy.
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There may be a legal case for unlawful detention. However, the courts do differentiate between a procedural breach, where it’s a failure of due process, but the person clearly needed to be detained (as he was subsequently), as opposed to a substantive breach, where the failure impacted negatively on the person’s situation, health or care. Examples of the latter attract significantly greater damages (and publicity). The cold, clinical precision of the law hasn’t caught up with the situation of no beds in a climate of continual cuts in mental health service provision. If the professionals involved had let the man walk, and if the risks he posed to himself and/or others were subsequently fully realised, then the public outcry would be much greater. Damned if you do, Damned if you don't.
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Except of course that the AMHP has 14 days in which to make a legal decision on detention or not in which time to make further investigations and assess in the community. What was so extraordinary about this case was that the resident lives with his family who were not contacted at all before a warrant was sought in court (ex parte of course) and the police and mental health team turn up and take the poor soul away. So all the family feel is the heavy fist of the state which is not what the law demands in terms of the AMHP having to take family and carers' views into account etc. Why would services now expect co-operation from the family if ever needed in future?
It just strikes me that no thought was given to the reasonableness of such an intervention into family life and all options ruled out without first gathering evidence. If it was my family I would be livid if I had not been contacted beforehand.
I think the best phrase is, "damned if you do when you shouldn't and damned if you don't when you should". I expect supposed professionals to analyse and think before acting.
Regards,
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Permalink Reply by M Sanderson on
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There is another legal route by which people can potentially be detained when they have a mental health problem but the mental health act doesn't apply, and that is the Mental Capacity Act Deprivation of Liberty Safeguards. For example, they might not be eligible for detention for a mental health condition under MHA but their mental health condition might influence their ability for make a capacitated decision about their health and welfare. Obviously it's not possible to comment on individual cases. It is possible to get further advice on this from the hospital itself (general advice about their processes, which wouldn't breach confidentialty) and/or make a formal complaint. The hospital can still provide general advice about processes even without consent from the individul concerned and the complaint will be logged/investigated internally even when information can be shared without consent. As others have mentioned there are advice/support services such as Independent Mental Health Advocates and Indepdent Mental Capacity Act Advocates and a number of other routes by which any concerns about care can be raised.
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I had no idea about the DoLS (deprivation of Liberty Safeguards) until I recently rescued an elderly relative from a locked secure unit for patients with dementia. The power of the Act and lack of power of the individual affected was chilling though I'm sure that there are times when it is necessary.
My relative is in her late 90s and still vehemently independent, she had become briefly confused following a reversible medical problem. She is also profoundly deaf and partially sighted and tends to shout. I phoned the unit but could not speak directly to her because of her deafness but could hear her plainly shout in the background "get me out of here!". I had seen her three weeks before and there was no sign of dementia so I drove over 200 miles to find out what was happening.
I was able to tell them that she was no different than she'd always been and had always refused help and when she said she wanted to go home she meant it. She was so vehement that she had stuck notices up in the window saying "Call the police! I am a prisoner" but passers-by had waved and laughed.
Once the social workers were on board they were great, she was discharged within two days and has accepted a home help however she was angry that she had been "in prison" for two weeks even though she protested her sanity and that no one believed her.
I think that most people involved felt that it was better for her to be looked after, that they genuinely wanted to make things safe for her but this is not the point, its her life and if she is still able to make the decision, which she is, then it is hers to make.
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Maggie's point is so on point about the individual's right to lead the life they want. The person I have spoken about remains in detention under the Mental Health Act and in his case his nearest relative ordered his discharge (as is his right) but the hospital have simply ignored this. They neither contested it nor allowed it and so in my opinion he is again detained unlawfully in a psychiatric setting. Neighbours have stated that the person has not changed and is not a danger but it seems the community's knowledge counts for little. It is the services in this case that have acted aggressively not the person they keep detaining unlawfully. A solicitor is now involved but just like CCTV it won't stop the crime but might get justice after the event.
It just amazes me that someone's idiosyncrasies can be interpreted not as part of the celebrated world of diversity but as behaviour to be altered by state power.
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