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Introduction
In England and Wales the Mental Health Act (Department of Health (DH), 2007) provides two possible routes by which a person can be admitted to hospital. The person can be admitted as a detained patient, that is; "[...] a patient who is detained in hospital under the Act, or who is liable to be detained in hospital but who is (for any reason) currently out of hospital" (Department of Health (DH), 2015, p. 408; Welsh Assembly Government (WAG), 2008, p. 220, 2016a, p. 278). A person may also be admitted to hospital as an informal patient; "Someone who is being treated for a mental disorder and is not detained under the Act" (DH, 2015, p. 412; WAG, 2008, p. 222, 2016a, p. 280). A significant number of patients are admitted informally. The Health and Social Care Information Centre (2015a, b) reported that in the period 2014-2015 there were 70,716 informal admissions to hospital (65.2 per cent of the total number of admissions). During this period some informal admissions result in a subsequent detention under the Act, however 50,026 (46.1 per cent of the total number of admissions) of them did not.
The Act (DH, 2007) applies to both England and Wales, however national guidance on its implementation is provided in separate editions of the codes of practice for both countries. A further complication is that these codes of practice are revised independently. The English Code (Department of Health (DH), 2008) was revised in 2015 (DH, 2015) and the Welsh Code (WAG, 2008) in 2016 (WAG, 2016a).
All of these editions of the code recognise that informal patients have two legal rights which detained patients do not. First, the English editions state that: "Patients who are not legally detained in hospital have the right to leave at any time. They cannot be required to ask permission to do so, but may be asked to inform staff when they wish to leave the ward" (DH, 2008, p. 172, 21.36, 2015, p. 322, 27.38). Both editions of the Welsh Code (WAG, 2008, 2016a) echo these sentiments. Second, each edition recognises that informal patients may refuse consent to treatment and that they should be told that their consent to treatment can be withdrawn at any time (DH, 2008,...