The law sets out safeguards to ensure that detentions under the Mental Health Act are necessary. Professionals should ensure that alternatives are considered such as voluntary admission. Most detentions under section are legal. The proper way to challenge whether a section is needed is by an application to the independent Mental Health Tribunal which forms the best safeguard to protect a patient’s rights.
In a very few cases detentions are not valid. Your solicitor will always check the section papers which are application and supporting forms to make sure they have been completed correctly. The law allows for minor errors to be corrected but sometimes there is a major issue which means the detention is not valid. Examples can be where the wrong nearest relative was consulted or not consulted at all, (and an explanation of why they were not consulted is not given) forms unsigned or the wrong name for the patient.
If a hospital discovers a patient has been wrongfully detained they can assess whether a fresh application for a section could be made. This would not correct an earlier error but the new section would probably be valid.
We have experience of advising people who have been wrongfully detained and hospitals and social workers who are facing a possible claim. Wrongfully detained patients may be entitled to compensation.
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