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GN Law Media: The Hospital Managers 

The Hospital Managers, through Section 23 of the Mental Health Act 1983 (as amended), are authorised by the organisation in charge of the hospital to exercise the power of discharge. The Hospital Managers, unlike those who sit on a Tribunal panel, are not required to have either legal or medical expertise. A frequently asked question is: who are the Hospital Managers?

Who are the Hospital Managers? 

The title “Hospital Managers” is a little confusing. The individuals who make up the panel are not themselves managers of the hospital or even employees, rather they are volunteers appointed by the organisation in charge of the hospital. The panel is usually comprised of three members who have to reach a majority decision. The government does not keep a record of the Hospital Managers’ educational and professional backgrounds. They are layman from an array of backgrounds. This obscurity led Lord Strabolgi in 1996 to declare, “Who are they? Why are they allowed to remain anonymous?”

This obscure power of the Hospital Managers is far reaching. Section 38.12 of the Code of Practice sets out when a Hospital Managers’ Hearing is held:

  • When the Responsible Clinician renews the patient’s Section or CTO a panel must consider whether the renewal is justified.
  • When the Hospital Managers choose to review a patient’s detention – this can happen at any time.
  • When the Managers agree to hold a hearing upon an application made by the patient.
  • When the Managers decide hold a review following the Responsible Clinician barring the request for discharge by the Nearest Relative. 

Managers are authorised to review the detention of patients under Section 2, 3, 4, 37 and patients who are detained under S17A (more commonly known as a ‘Community Treatment Order’). They are also permitted to review the detention of restricted patients under Sections 37/41, 47/49 and 48/49. However, the Hospital Managers can only discharge restricted patients if the Secretary of State for Justice approves the discharge. But how do they decide whether to discharge a patient?

What do Hospital Managers consider when discharging?

The Mental Health Act does not outline the criteria to be used by the Hospital Managers when they are considering discharge. Instead, depending on the section, the Code of Practice details questions which they should take into consideration. These questions vary depending on which Section the patient is detained under.  

For patients detained under Section 2 or Section 4, as set out by 38.16 of the Code of Practice, the Panel should consider:

  • Is the patient still suffering from a 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 other detained patients the Code of Practice 38.17 states that the Panel should ask:

  • Is the patient still suffering from a 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.

Finally, 38.18 of the Code of Practice details that for patients on a Community Treatment Order (CTO) the panel should ask:

  • Is the patient still suffering from a 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 the majority of Hospital Managers answer ‘no’ to these questions, then the patient should be discharged. However, even if the Hospital Managers answer yes to these questions, they can still decide to discharge the patient. The Code of Practice states that the Managers are not usually qualified to form a clinical assessment of their own, however, if there are diverging opinions amongst professionals in regards to the patient’s continued detention, then the Hospital Managers are to make their own judgement. This is worrying, when so little is known about Hospital Managers and with no record being kept on their backgrounds. However, the Hospital Managers’ power to discharge is not unlimited.

Limitations on the Hospital Managers’ power to discharge. 

The Hospital Managers’ powers, as set out in the Code of Practice, are not without restriction. They are subject to the General law and they must ensure that:

  • The decisions they make are fair, reasonable, lawful and not irrational—that is, decisions which no managers’ panel, with an understanding of the law and the facts of the case, would make. 
  • They do not act unlawfully, both in regards to the Mental Health Act and other legislation such as the Human Rights Act 1998 and the Equality Act 2010. 

Furthermore, although the Hospital Managers are not required to have medical or legal expertise, paragraph 38.8 of the Code of Practice established that the organisation which is in charge of the hospital ought to ensure that the Hospital Managers receive suitable training. This training should ensure that the Hospital Managers understand the law in order to be able to make sound judgements and understand assessments such as risk management reports. However, do the Hospital Managers assess risk effectively?

The Future of Hospital Managers

In 1996 Stephen Dorrell, the Secretary for Health at the time, expressed his concern to the House of Commons in regards to the Hospital Managers’ power to discharge. He drew on the case of Glen Grant, who after being discharged by Hospital Managers—a discharge going against medical advice—committed a number of violent crimes. The Hospital Managers did not ensure the safety of others in assessing Glen Grant’s risks. They, unlike psychiatrists and lawyers, do not regularly make risk assessments. However, despite continued criticism, the Hospital Managers retained the power to discharge when the Mental Health Act 2007 came into force. 

The Hospital Managers’ power to discharge appears to be staying. It is of great importance for the patient to have Legal Aid to assist and advise them in these proceedings. There is Legal Aid funding available to both patients and their Nearest Relatives, subject to means-testing. This allows the patient to be advised and assisted both before and during the hearing including questioning of the professionals, summing up of the patient’s case for the Hospital Managers’ panel and helping the client present their evidence.

Jessie-Louise Marshall 
Mental Health Dept. 

Source:

Thomas E. Webb, Uniformed Reform: The Attempt to Abolish the Hospital Managers’ Section 23 Discharge Power Under the Mental Health Act 1983. 

Posted on Wednesday, 15th January 2020