Our relative was in a MH unit for 3.5months following 6weeks being treated for Covid and Kidney Injury in the general hospital. The first 28days in the MH ward she was on Section2 then she was put on UrgentDOLS and never taken off that. I have read that 2x7days is the maximum for urgentDOLS but this was 2.5months. If she had been put on to Section3 then she could have been discharged with S117 support. This was in 2021 and she has never been as well mentally as she was before Covid and Sectioning.
Her husband fell ill and died earlier this year and so we put care in place but she has to pay herself until her savings/asset values are exhausted. We have been told that S117 would have supported her now and going forward if it had been put in place in 2021.
Is there any case law that shows success or failure to challenge the lack of S3/S117 many years on. What justification could the Trust give for leaving her on urgentDOLS? Can we get legal aid to challenge this?
You are right that an urgent DoLS authorisation can only last 7 days with a possible extension of a further 7 days. After that it expires and cannot be renewed. So she wasn’t “on urgent DoLS” for that time, and there were no powers of detention in place for the rest of the time she was in hospital.
As section 3 was not used, section 117 aftercare cannot kick in, I’m afraid, and can’t be imposed retrospectively.
There may be an argument that your relative was unlawfully detained for the period after the expiry of the DoLS authorisation, if she lacked capacity to consent to being in hospital, but that would be a case for legal action and there’s no guarantee of success there.
Even if she had been detained on section 3, there is no guarantee that section 117 aftercare would have paid for all her subsequent care. It all depends on whether her needs were arising from or related to her mental disorder.
Unfortunately, whether a Section 3 should have been used instead of DoLS depends entirely on the clinical justification at the time. Section 2 may have been justified initially for assessment. If clinicians concluded your relative lacked capacity to consent to an admission and was compliant with admission/treatment, they may have considered DoLS a suitable alternative rather than Section 3.
However, urgent DoLS wouldn’t have been running for 2.5 months - the maximum is 7 days (extendable once to 14). After that, the authority for detention expired and the hospital should have applied to the local authority for a standard authorisation (although it’s not surprising it wasn’t acted upon given nationwide delays to implement). The fact that her time there wasn’t authorised means the detention was technically unlawful.
That doesn’t automatically mean a Section 3 was required, though. On the limited facts, the “next step” should have been a standard DoLS authorisation, not Section 3.
On the topic of damages for unlawful detention - there is case law (e.g. Lumba; Bostridge) suggesting that unlawful detention where the patient would have been detained anyway usually results only in nominal damages. That being said, it’s worth a discussion with specialist solicitors. I’d probably see whether Irwin Mitchell would do a free consultation - I know they do an awful lot of similar claims in community settings (note: I have no ties, financial or otherwise, to IM).
Thank you so much for your response. We have the records from her stay and urgent DOLS is listed on every weekly update as was the fact that she had no capacity. 90% of her care needs now relate to her poor mental health in that her other medical conditions could be managed by DNs or via GP. Whilst on Section2 she was given quetiapine but then switched back to Olanzapine after about six weeks, increasing dose periodically so was effectively in treatment. She has been unstable since she left hospital and now has live-in care. Beforehand she could take buses and meet friends in town but is largely housebound now. We are asking for a med review and second opinion and Social funding if S117 is not applicable. Thanks again.
An alternative would be to consider if your relative meets Continuing Health Care. There is a decision support tool which you can read through here NHS continuing healthcare decision support tool - GOV.UK There is also associated case law with CHC cases, and in particular the interpretation of the DST/CHC assessment. The key thing is whether the current package of care is ancillary and incidental, if it is not, then this typically means that the NHS may be liable, and you should not be charged for care.
Thank you for taking the time to respond. As mentioned latterly, the records show she was not moved from Urgent DOLS after Section2 expired, so was presumably held unlawfully. I appreciate that it was post pandemic, but perhaps that is the justification for allowing a retrospective Section3 so that S117 can now apply. The financial impact of having to self-fund home care is the loss - and savings are low after 8months, so care will be unaffordable soon. Pending establishment of her husband’s Will validity (he changed it in favour of his daughter a week before he died) my sister in law may own a house, but it is not mortgageable or high value so it would be forfeit to the LA for them to pay care costs. She needs to stay in the peace and security of home and we are concerned to lose control of selecting the right carer to cope with her behaviours.
I have looked up the case you mentioned but need to study further. Thank you.
I see someone has suggested CHC funding which we have started to discuss but it takes time - and MH cases seem to be rare. We will continue to try all angles.
Thank you for your steer on CHC Funding and the importance of ancillary or incidental. I will study that area. We have had an initial call for advice but if S117 were applicable then we may not need CHC. Maybe we have to pursue both in parallel.
Do you know any examples of successful CHC cases for SMI?
If you could show that, had they followed the DOLS process for a standard authorisation (instead of unlawfully detaining her after the urgent authorisation expired) they’d have realised she was ineligible for DOLS because she objected to being a mental health patient or some of the treatment and so she should have been under s3… then maybe the court would award damages to cover the loss resulting from the unlawful detention. I’ve not thought this through fully, and there are so many ifs and maybes, that the CHC idea should probably be explored first! I don’t know much about that. Ask a solicitor to look at all the facts and advise you in detail.
Thank you kindly. We have set up a call this week to get advice so I will ask about that - but funds will run out paying for care soon so we will need legal aid next! In the meantime, my sister in law is becoming so unwell the carers are not coping. Is there such a thing as a live in MH nurse I wonder!
Thanks again.
Looking through the CHC assessment tool and guidance it seems to be driven by a case where the patient suffered largely physical health issues. There is little reference to psychiatric care being an NHS service and therefore relevant to CHC funding, whereas S117 is all about that. Why the disconnect? The principles feel very similar.
Unpredictability of a SMI sufferer and the competence of mainstream carers to cope with paranoia and challenging behaviour seem to be the main “generic” angles to justify CHC funding but I have not yet found any examples of successful cases. In the same way a spinal injury requires specific carer competencies, so does SMI. This argument does not seem to be used. Frankly it feels discriminatory, but I am only at the beginning of my understanding here.