Deprivation of Liberty and Detention

Question 1

What is the Mental Health Act?

Answer 1

Legislation covering compulsory assessment, treatment and rights of people with mental disorders

Question 2

What is DoLS?

Answer 2

Framework of safeguards under the MCA for people who need to be deprived of their liberty (e.g., detained) in their best interests for care and treatment to which they lack capacity to consent themselves.

▪️ To remedy lack of procedure prescribed by law for people lacking capacity but are not detainable under the MHA

Question 3

What is the European Court of Human Rights (ECHR)?

Answer 3

Set of absolute, limited, and qualified rights

(E.g., the right to life)

Question 4

What is article 5 of the ECHR?

Answer 4

The right to liberty and security or person

Except in cases in accordance with procedure prescribed by law:
▪️ For prevention of the spreading of infectious diseases
▪️ Of persons of unsound mind
▪️ Alcoholics, drugs addicts, or vagrants

Question 5

What are the three elements of deprivation of liberty?

Answer 5

▪️ Objective element - to a certain limited place for a length of time
▪️ Subjective element - have not validly consented
▪️ Confinement must be imputable to the State

Question 6

What is the DoLS “acid test”?

Answer 6

Two key features where someone is unable to give valid consent to confinement:
1. Not free to leave and
2. Continuous supervision and control

Question 7

What does ECHR Article 8 relate to and what might and what might violate it?

Answer 7

Right to respect for his private and family life, his home and his correspondence

Violated by treatment without consent
(satisfied if therapeutic necessity shown, in best interests, and proportional)

Question 8

What are the criteria for detention under the MHA?

Answer 8

▪️ Least restrictive principle
▪️ Mental disorder
▪️ Must be in hospital (not including A&E)
▪️ For health, safety and protection of others
▪️ Appropriate medical treatment must be available somewhere
▪️ Any age

Question 9

What are the criteria for detention under the MCA (DoLS)?

Answer 9

▪️ Least restrictive principle
▪️ Mental disorder
▪️ Care home or hospital
▪️ Capacity assessment necessary
▪️ Best interests
▪️ Age 16+

Question 10

What are the two sections necessary for compulsory admission in a hospital?

Answer 10

▪️ Section 2
▪️ Section 3

Question 11

For how long can someone be detained under section 2?

Answer 11

28 days

Question 12

For how long can someone be detained under section 3?

Answer 12

6 months

Question 13

What is required for a section 2 or section 3 detention?

Answer 13

▪️ 2 doctors (one independent, one S.12 approved) (medical recommendation)
▪️ Tribunal
▪️ Application and arrangement by an approved mental health practitioner (AMHP) or nearest relative

Question 14

What are the two sections that can be used for emergency admission/detention?

Answer 14

▪️ Section 5(4)
▪️ Section 5(2)

Question 15

For how long can someone be detained under section 5(4)?

Answer 15

6 hours

Question 16

For how long can someone be detained under section 5(2)?

Answer 16

72 hours

Question 17

Who can implicate a section 5(4) compulsory admission?

Answer 17

One nurse

Question 18

Who can implicate a section 5(2) compulsory admission?

Answer 18

One doctor, post registration in any specialty

Question 19

What are the two sections for community compulsory admission?

Answer 19

▪️ Section 135
▪️ Section 136

Question 20

Under which section can the police detain you from your home?

Answer 20

Section 135

Question 21

Under which section can the police detain you from elsewhere (e.g., out in the community) to a place of safety such as a police station?

Answer 21

Section 136

Question 22

Who CANNOT be an AMHP?

Answer 22

A doctor

Question 23

What happens at the end of a 28 day detention under section 2?

Answer 23

Assessment and tribunal to determine next steps

Cannot enforce another section 2 but can enforce a section 3

Question 24

For how long can the police detain you under section 136?

Answer 24

24 hours

Can be extended by 12 hours but not good practice