Section two Focus on detention issues in accordance with the legislative framework. Seven of the examples clearly demonstrated that staff were not aware that aspects of their practice could be considered as lacking a legal basis. The remaining three cases were less clear; while some aspects of staff practice were authorised, the changing legal landscape post-Cheshire West might mean that new areas need to be considered and practical guidance provided for staff. The proposed Northern Ireland legislation, as currently envisaged, will provide safeguards for people assessed as lacking capacity to make decisions about their health, welfare and/or finance, and guide staff in lawful practice. In Scotland, in some cases there is a lack of clarity about who should be the person or body responsible for applying for the appropriate authorisations, although this is considered on a case-by-case basis. identified. NPM members will also consider if the development of guidance for staff would be beneficial. De facto detention outside of health or social care settings De facto detention was also identified in 2014–15 by HMI Prisons (England and Wales). An inspection of a building used by immigration services identified a ‘secondary search area’, a single locked room with seating for nine people, who could not freely leave. On the day of the inspection visit, 31 adults and one child were held in this area for an average of one hour and 56 minutes, with seven of these detainees held for more than four hours.92 Other concerns noted included: Common themes The most clearly defined areas of commonality in the health and social care examples provided included: • a lack of clarity or understanding in staff practice; • a failure to engage a multidisciplinary team in risk assessments and care planning; • a failure to review risk assessments and care plans, including review of the person’s capacity to consent to care, treatment and/or interventions; • ineffective governance in terms of identification of cases of de facto detention. • failure to complete the required documentation to validate the detention; • a lack of training or accreditation for the guard taking custody of the detainees; • a lack of child protection training for the Home Office security guard; • men and women could not be held separately; • the area was unsuitable for children, and deemed an inappropriate place to hold people; • detainees had to request exit from the locked secondary search area to use the toilet; • detainees had no access to fresh air; • unclear governance arrangements; • poor record keeping. These findings are not significantly different from those detailed in previous NPM annual reports. NPM members will continue to make recommendations for improvement where incidences of de facto detention are A recommendation was made to the Home Office addressing these concerns. This was the first example of de facto detention identified by HMI Prisons, and considered likely to be an isolated incident. 92 HM Inspectorate of Prisons (2015), Report on an unannounced inspection of the short term holding facility at Becket House by HM Chief Inspector of Prisons, 6 January 2015. 49