I have a client on a CTO whose NR ordered her discharge, which was then barred by the RC. I got referred the client at this stage, expecting a Hospital Managers Hearing. However, the hospital is saying that as she has a Tribunal coming up, the HMH will not be held. She was referred for a 3 year review prior to the NR actions. I note that Ch 38 of the Code says that the managers may consider a hearing following an RC barring. Is it correct that the managers do not have to convene and will the Tribunal then look at dangerousness?
Hya Louise
I sit as a Hospital Manager. You are correct the Managers must consider but can refuse. However, my question is why would they? If the MHRT had just occurred or there had been a renewal hearing I could understand. My view that whilst the decision is technically accurate, and of course not knowing any back story, it’s not within the spirit of the Act or the code, and generally bad practice
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Hi Louise, like Steve I also sit as a Hospital Manager and agree that holding a hearing following an RC Barring, though rare, do not normally present any difficulty.
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I also sit on Hospital Managers Panels and my understanding is that a panel is not obligatory in these circumstances but invariably one is held. I am not a solicitor but I seem to recall that if a Tribunal happens to follow a barring certificate (as opposed to being held as a result of a nearest relative’s application) then the Tribunal is not obliged to consider dangerousness (R (MH) v Secretary of State for the Department of Health [2004] EWHC 56 (Admin)). It therefore seems a bit unfair but without knowing the particular circumstances of this case it is difficult to judge.
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Hi Louise
Like Steve and Sam I also sit as a hospital manager and before I retired was a MHA manager. I would say the hospital managers should hold a review hearing as in response to the Barring Order the question of “dangerousness” needs to be specifically addressed. If the MHT is the outcome of a HM referral then the tribunal will not address this specifically.
BW
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thank you very much for your helpful reply
Thank you very much Moira
thank you Sam and Steve, much appreciated
The Code says “should consider” rather than “may” but in practice it’s probably similar.
38.12 Hospital managers:
- may undertake a review of whether or not a patient should be discharged at any time at their discretion
- must undertake a review if the patient’s responsible clinician submits a report to them under section 20 of the Act renewing detention or under section 20A extending the CTO
- should consider holding a review when they receive a request from a patient (who may be supported by their independent mental health advocate (IMHA) (see chapter 6), independent mental capacity advocate (IMCA), attorney or deputy (see chapter 7) or a carer, and
- should consider holding a review when the responsible clinician makes a report to them under section 25 barring an order by the nearest relative to discharge a patient.
38.13 In the last two cases, when deciding whether to consider the case, hospital managers are entitled to take into account whether the Tribunal has recently considered the patient’s case or is due to do so in the near future. The decision should be recorded in writing and if the decision is taken not to consider the case the reasons documented.
On the face of it, the reason given appears within the Code. But I think you’ve asked the right question – “will the Tribunal then look at dangerousness?” – and I agree with the answers above. As the forthcoming tribunal hearing is not as a result of an application by the nearest relative, I’d argue that it is definitely not a good reason to avoid holding a hospital managers’ hearing. (It isn’t a great approach anyway, as the hospital should want dangerousness to be reviewed as soon as possible.)
If there is no managers’ hearing then it might be slightly easier to argue that the tribunal should consider dangerousness.