De Facto Detention

“The threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment.”
Code of Practice to the Mental Health Act 1983, paragraph 4.12.

In a sense, this post is about something that is none of my business really … not something for the police.  But it occurred to me that it may be worth explaining “de facto detention” to those of you who have not heard the phrase.  This arises from the recent episode of Bedlam, the documentary series currently showing on Channel Four.  I wasn’t able to watch the show when broadcast and as I caught up the following morning and there was a point 34mins in where I did an involuntary exclamation of “No!!!” and the dog jumped up in the air.

Voluntary patients on mental health wards are free to come and go as they please and we met two of them: Dominic and Rupert.  Although a hospital’s policy may require patients to inform staff that they are going out, it cannot require them to ask permission because they are not detained.  Moreover, patients should not be placed under duress to enter hospital or remain there on threat of being “sectioned” if they refuse.  This is laid out in para 4.12 to the Code of Practice to the MHA, quoted above.

Well, 34 minutes into Bedlam we were watching a case conference meeting with Rupert and I’m not the only person who thought he was placed under duress to maintain his voluntary status.

DURESS

Rupert had left the hospital the previous day, supposedly for an hour and was reported missing to the Metropolitan Police when he failed to return on time.  Staff on the Triage Ward at Lambeth Hospital were talking openly in the documentary about him having “leave” and we heard that he eventually returned to the unit eight hours after he was originally due to do so.  Subsequently a meeting took place with the responsible clinician –

It was during this meeting that I caused my dog to jump – I was left with the very clear impression from this discussion, that unless Rupert set aside his right to take certain decisions for himself, he would be “sectioned”.  Those words were just beneath the surface of the conversation we heard, but it was right there.

Now there has been some debate about this.  Blogs began to emerge covering issues arising from the show saying the same thing – that a de facto detention had occured, arising from duress.  But the debate that followed these observations surprised me even more, bearing in mind that we’re talking about the coerced detention of some very vulnerable and complex people.

Apparently, all this stuff about diagnosis, behaviour and mental health is quite difficult to shoe-horn into the legal framework we have ……… a tweet chat with the mental health trust concerned on Friday lead to the medical director saying that “it shows how difficult certain aspects of the MHA are in reality” ……… one clinician offered the view that the MHA deals with complex uncertainties and that a comparison I made with the police being very clear about when people are “arrested” or “not arrested” and what people’s rights are whilst detained was only viable because it’s always very clear whether or not someone has broken the law.

I admit to being simply gob-smacked.

I’m not trying to over-egg this: I was sitting in my house, just speechless at the thought of it.  The casual way with which the detention and rights of a vulnerable person were being debated after the dismissal of concerns raised about whether statutory guidelines were breached.  Stunning.  It is important that I put on record the potential for the editing of the programme to have affected how the interaction came across and also relevant to point out that the MH trust state they had full editorial control.

So let’s put this another way — the police deal with detention and coercion every day, including during ambiguous circumstances.  Can you imagine the outcry if it was seen on national television that the police had placed a vulnerable person under duress in order to have them succumb to a process that the police thought best but which was not supported by any legal framework that assured them their rights?  We’d be pilloried; and rightly so.

HOLDING POWERS

You will recall from a previous occasion that section 5 of the Mental Health Act affords doctors and nurses the authority to detain patients in hospital for full Mental Health Act assessment involving an AMHP.  Doctors may hold patients under s5(2) for up to 72hrs and you’ll remember that prior to the case of Rupert, we saw Dominic detained under this provision.  Nurses may hold patients under s5(4) for up to 6hrs.  Both mechanisms lead to an Approved Mental Health Professional being asked to co-ordinate a Mental Health Act assessment.

Of course in our mental health system it is the AMHP who is legally warranted and makes the civil liberties decision about whether an application will be made that legally detains another human being.  By seeking to ensure a hospital stay continues on a “voluntary” basis, having implied that a decision to section someone would follow, the patient has been persuaded to agree to ongoing restrictions on his liberty.  He remains a “voluntary” patient but is not allowed to leave. << De facto detention.  This is something that is “repeatedly picked up by the CQC.

Doctors do not have the legal authority to section a patient – they may only ever recommend it and whether that recommendation is accepted is a matter for the AMHP.  Of course, the AMHP was never involved in the situation because no Mental Health Act assessment was ever arranged, no holding power having been used.  Had the patient been detained under s5(2), as Dominic had been, an MHA would have been required.

But in the end, these issues actually can become a matter for the police.  Remember the incident about seven years ago that I wrote about where nurses had been put in the position that arose here of having a patient who can’t leave, but isn’t legally restricted?  Those nurses started ringing the police when a female patient they were managing starting causing damage to the ward but in the absence of a clear legal authority for holding her, the question of legalities starting pointing towards the NHS staff.  Well, what if Rupert the “voluntary patient” had then changed his mind about the “leave” he agreed not to have?  Remember, it’s not leave at all – he’s free in law to come and go as he pleases if and until a DR or nurse applies a holding power; and given what had been discussed, are we not now in a state on confusion?

Had there been a confrontation, I wonder where questions of assault or damage would have pointed if the police had been called?


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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5 thoughts on “De Facto Detention

  1. I’ve heard about this happening quite a lot on mental health wards and it seems regularly to be used as a way of controlling people: Do this or we’ll section you. But it really affects how patients interact with the staff because you always feel like you can’t trust them and so it makes all your dealings with them feel way more confrontational as you try and protect yourself from being sectioned. When the reason your in hospital is to try and get better, things like that which ramp up the stress can be really detrimental.

  2. I’m confused. Are you saying that Rupert should have been seen by an AMHP and then sectioned/detained under the mental health act or that he didn’t need detaining and should have been allowed to go about freely in his clearly aggitated, aggressive and disturbed state. On the street he could quite easily of become one of your ‘clients’ needing a place of safety in a police cell after committing a breach of the peace or worse, an assualt. He was very aggressive and intimidating and was clearly too vunerable to be out without any concern. Is your point purely procedural?

  3. I have been a psych patient more times than I can count in the last decade both sectioned and ‘voluntary’. De facto detention is commonplace in my experience and as a patient I feel like I am always walking a tight rope. Many times I have had arguments with staff about leaving the ward with comments like ‘we would like you to see the Dr first’. Then many many hours waiting for said Dr to appear. And yes I’ve had written on my notes that I’m not to be allowed to leave without staff checking me out beforehand. Even on the day when I am due to be discharged I have spent nearly all day waiting to leave so that I can see the Dr first. If I start to argue my case and get upset then the situation turns into ‘you’re upset, don’t think you should be leaving the ward should you’. A voluntary patient lives in fear of being sectioned if they don’t do what they are told. Watching ‘Bedlam’ this week I felt for Dominic when he suddenly found himself on a section 5(2) just for voicing his opinion that he didn’t want to be there. He had made a decision to ask for help and go back into hospital only to find himself deprived of his liberty. I was left wondering whether they did really apply a 5(2) because there was no mention of a mental health act assessment following. But I was not surprised – this situation was normal to me.

    About a year ago my local hospital changed their policy so that all patients (sectioned or voluntary) were required to stay on the ward for the first 72 hours. It did not occur to them that this was infringing patients’ rights and they still do this when they can get away with it. I challenged this policy with the help of the Mind legal team and now staff know not to say no when I ask to leave but even now I still say ‘is it ok for me to go?’. Other patients watch gobsmacked when I leave the ward unchallenged. But I’m in the minority amongst patients in knowing my rights. Mental health trusts need to be reminded of the law regarding informal patients.

    Being on a mental health ward is scary enough (there is always a volatile Rupert type wandering around) without having to watch what you say or do, without being able to express that you don’t want to be there only to find yourself imprisoned without any power. It is terrifying being sectioned, particularly a section 3 where you have no rights to refuse treatment. In the past I have been threatened with injected medication because being fearful of any pills I refused to swallow antidepressants and been forced to undergo electric shock treatment against my will (this is now not allowed to happen). Sometimes I wonder if prisoners have more rights than a mental health patient.

  4. Rabone vs Penine Care NHS Trust has lead to some consultants being extremely prescriptive about leave for informal patients.
    Recent arguments have taken this form: if a patient agrees to inpatient treatment they have to agree to a treatment plan which will include medication but also nursing care and observation. If they subsequently then disagree to that plan and do not wish to follow agreed leave or treatment then a risk assessment takes place.
    If the person has capacity and the risks warrant a detention under s5(4) or s5(2) then they should be detained to await a MHA Assessment, if the risks don’t meet that threshold then they should be allowed to leave and immediately be discharged.
    This situation has some serious ramifications, and also feeds in to the general issues around no section= no bed.

    Also a 5(2) does not necessarily lead to a full MHA assessment. If the RC decides that a MHA assessment is not needed then the section 5(2) ends and this can happen when their is a brief period of agitation and then the person calms before the full assessment takes place – if the RC won’t provide a med rec then the assessment is redundant.

    I think it’s also worth saying that AMHPs have a duty to offer the least restrictive option at an assessment. The AMHP in fulfilling that duty should explain the impact that detention might have and offer a voluntary admission if at all possible. Whether this explanation amounts to threats or coercion can be very subtle to determine.

    Many (?most) patients are aware that as informal patients they can be subject to detention at any point if they don’t comply with the regime and are therefore subject to coercion. At the same time aspects of the regime, such as not smoking on the ward, not consuming alcohol, not leaving between the hours of 2200 and 0600 reflect reasonable measure to protect the health and safety of all concerned.

  5. De facto detention is appalling. I have known it happen; it has happened to me the first time I was hospitalised, when I was a ‘voluntary’ patient but had only agreed to be admitted under the threat of being sectioned.
    ‘Can you imagine the outcry if it was seen on national television that the police had placed a vulnerable person under duress in order to have them succumb to a process that the police thought best but which was not supported by any legal framework that assured them their rights? We’d be pilloried; and rightly so.’
    But it has.
    I have been falsely declared fit to be interviewed and to plead when I blatantly was not.
    Pressured into answering questions when I did not have to do so.
    To plead guilty when I was not. ‘It will be better for you’, I was told. Um, no. Not when I have a record now that makes my life frankly pointless and not worth living.
    I wasn’t in any state to make decisions, I had only the opinions of others to go on.
    Articulate, educated, dare I say it white and middle-class, DO NOT mean someone has capacity.
    So don’t be complacent about the police here.

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