Unlawful detention claims will often involve a claim for both false imprisonment at Common Law and a claim under Article 5 of the European Convention on Human Rights (the right to liberty). Claimants will always need to demonstrate that they have suffered loss (see Bostridge v Oxleas NHS Foundation Trust). The firm acts for individuals who have been unlawfully detained in the context of both the Mental Capacity Act and the Mental Health Act.
Recent cases include:
- Failure of effective/lawful consultation with nearest relative (in the context of an application under section 3 MHA)
- Improper/unlawful issuing of barring certificate pursuant to a nearest relative giving notice of a wish to discharge their relative
- Police misuse of powers to remove patients from the community (under sections 135 and 136 MHA)
- Nursing homes’ unlawful reliance on doctrine of necessity in respect of capacitated resident.
- Detention and coercive personal care of a physically disabled but mentally capacitated care home resident.
- Use of a CTO order to detain a care home resident beyond that authorised by the Court of Appeal in the case of PJ.
The firm is only able to accept instructions in respect of unlawful detention claims on a private client or ‘no win, no fee’ basis. Potential claimants who may be entitled to Legal Aid are advised to contact a firm with a LAA contract for ‘Actions Against the Police’.