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GN Law Media: Hospital Managers Hearings

By virtue of Section 23 of the Mental Health Act 1983 (as amended) most detained patients are entitled to apply to the Hospital Managers to be discharged.  

Who are the Hospital Managers?

The Hospital Managers are volunteers who have been authorised by the organisation in charge of the hospital to exercise the power of discharge.

The Hospital Managers panel is comprised of three or more members and decisions have to be agreed by at least three or more members who make up a majority.

What are the Hospital Managers’ powers?

The only statutory power conferred on the Hospital Managers is the power to discharge a patient.   However, the Hospital Managers also retain the discretion to discharge even if they are satisfied that the criteria for detention are met.

If the Hospital Managers believe that the patient is ready for discharge but practical steps need to be put in place before this can safely occur, they should adjourn the hearing before giving their decision and reconvene to discharge the patient once the necessary arrangements for discharge have been made. They cannot direct that discharge happen on a future date.

Although the Hospital Managers have no formal right to make recommendations, it is generally believed that they have the inherent right under the guiding principles of the Code of Practice to make informal recommendations on matter such as leave and transfer.  Nevertheless, as the recommendations have no formal standing there is no obligation on the patient’s clinical team or Responsible Clinician to follow them and the panel are not required to reconvene if they are ignored.

Who can apply for discharge?

Patients on Sections 2, 3, 4 and 37 and patients liable to be detained under S17A (Community Treatment Order) can be discharged by the Hospital Managers.

Restricted patients detained under Sections 37/41, 47/49 and 48/49 are entitled to apply for discharge but the Hospital Managers cannot grant discharge without the approval of the Secretary of State for Justice.  This is unheard of in practice.

Patients detained under Sections 5, 35, 36 and 38 and people held in a place if safety under Section 135 or 136 have no right of appeal to the Hospital Managers.    

How often can a patient apply?

There is no set period of eligibility in relation to applying for a Hospital Managers hearing and therefore no limit on the number of times that a patient may apply during their period of detention.  However, entitlement to apply for a hearing does not necessarily mean that one will be held.  Many detaining authorities will want there to be at least 28 days between a hearing taking place and them agreeing to process another application.

When might a hearing be held?

Paragraph 38.12 sets out when the Hospital Managers might hold a hearing.  They: 

-       May undertake a review at any time at their discretion;

-       Must undertake a review if the patient’s Section is renewed;

-       Should consider holding a review if the patient request a hearing; and

-       Should consider holding a review if Nearest Relative’s request for discharge is barred.

With regards to the last two cases, the Hospital Managers may refuse to hold a hearing if a Hospital Managers or Tribunal hearing has recently been held or is due to be held shortly. 

What is the discharge criteria?

The Act does not outline any specific discharge criteria for the Hospital Managers to follow.  However, the Code of Practice outlines the questions that should be considered when reviewing detention.

      For patients detained under Sections 2 and 4 the following questions apply:

  • Is the patient still suffering from mental disorder?
  • If so, is the disorder of a nature or degree that warrants the continued detention of the patient in hospital?
  • Ought the detention to continue in the interests of the patient’s health or safety or for the protection of other people?

   For patients detained under other sections the following questions apply:

  • Is the patient still suffering from mental disorder?
  • If so, is the disorder of a nature or degree that makes treatment in a hospital
  • appropriate?
  • Is continued detention for medical treatment necessary for the patient’s health or safety or for the protection of other people?
  • Is appropriate medical treatment available for the patient?
  • Consideration should also be given to whether the Mental Capacity Act 2005 can be used to treat the patient safely and effectively.

      For patients on a Community Treatment Order the following questions apply:

  • Is the patient still suffering from mental disorder?
  • If so, is the disorder of a nature or degree that makes it appropriate for the patient to receive medical treatment?
  • If so, is it necessary in the interests of the patient’s health or safety or the protection of other persons that the patient should receive such treatment?
  • Is it still necessary for the responsible clinician to be able to exercise the power to recall the patient to hospital, if that is needed?
  • Is appropriate medical treatment available for the patient?

If Hospital Managers are satisfied that the answer to any of the questions is “no” then they must discharge the patient. 

What if the hearing follows a barring order?

If the hearing is being held following the barring of a Nearest Relative’s request for discharge then the following question must also be considered:

 

  • Would the patient, if discharged, be likely to act in a manner that is dangerous to other persons or to themselves?

This is generally much more difficult to establish and if the answer to this is “no” then the Hospital Managers should discharge the patient.  However, the Hospital Managers have a residual discretion not to discharge the patient if they believe that there are exceptional reasons for not doing so.

Do patients need legal assistance at a Hospital Managers Hearings?

Patients are perfectly entitled to prepare for and attend their Hospital Managers hearings alone and without any legal assistance.

However, having legal advice and assistance can be extremely beneficial and can improve the patient’s prospects of being discharged for a number of reasons.

Firstly, it may be advantageous to seek legal advice as to the timing of an application, as a well-timed application is much more likely to be successful than an automatic review following the renewal of a patient’s section.

A legal advisor can also advise as to other potential benefits to be gained from having a Hospital Managers hearing.  For instance, using the hearing to “test the water” before using a Tribunal application.

As the Hospital Managers do not (necessarily) have medical expertise they are not in a position to form their own clinical judgments and some panels accept the Responsible Clinician’s evidence unchallenged.  In these circumstances, it can be vital to have a legal advisor present to challenge the clinical team’s evidence and present the panel with a different view point. 

Crucially, Hospital Managers do not (necessarily) have legal expertise and some panel members can misunderstand or underestimate the importance of considering the legal criteria and following the correct procedure in reaching a decision.  As such, it can make a positive difference to a patient’s case if they are assisted by someone with legal expertise who can identify the relevant legal and factual issues, draw them to the attention of the Hospital Managers and ensure that they consider the evidence presented to them and apply it to the relevant legal criteria.  

Lastly, even if a patient is capable of preparing for and conducting their own case, it can be helpful to have an outside view from someone unconnected to and with no personal involvement in the matter.

Can I get Legal Aid for assistance at Hospital Managers Hearings?

Legal Aid funding is available (subject to means-testing) for advice and assistance in relation to Hospital Managers hearings.  This can be granted to patients and to Nearest Relatives. 

If a patient has a Tribunal matter pending or is continuing to receive advice and assistance following a Tribunal hearing, they will be automatically entitled to Legal Aid Funding for assistance with a Hospital Managers hearing provided it falls within the same period of eligibility.

Where appropriate, the Legal Aid funding would cover the following:

 

  • Advice and assistance in relation to applying for or attending a Hospital Managers hearing, including the procedure of the hearing and the Hospital Managers’ powers;
  • Preparation for the hearing, including considering the patient’s medical progress notes, considering the reports for the hearing, attending any CPA/S117 meetings and seeking other evidence in support of the patient’s case; and
  • Assisting the patient at the hearing by way of questioning the professionals attending, assisting the patient in presenting their evidence and summing up the patient’s case for the Hospital Managers panel. 

If you require any further information on this topic, or with any aspect of your mental health matters, please contact our team on 020 8492 2290.  

Della Camps, Trainee

Posted on Wednesday, 10th May 2017