I have long been aware of the Managers residual discretion not to discharge even where the dangerousness criteria are not met but I had never actually come across it in practicality.
Unfortunately the N/R who made the application did not avail herself of legal advice and is now massively out of time to apply to the Tribunal.
Any tips on challenging such a decision not to discharge?
Anonymised reasoning below:-
The panel took into consideration that there is no requirement for it to discharge a patient in such circumstances, simply because the criteria for dangerouness is not met, Section 23 MHA providing a general discretion. Consideration was given to the MHA Code of Practice para 38.23 and relevant caselaw R (on the application of SR) v Huntercombe Maidenhead Hospital  EWHC 2361.
The panel concluded the dangerousness critera was not demonstrated, however it retained residual discretion not to discharge for the following reasons:
- Home leave has not been sufficiently tested.
- An absence of a completed discharge package. The panel were made aware that a robust package of care is agreed, however, recruitment and training of sufficient support workers to enable the two to one structured support is not yet in place.
- The panel also heard evidence that a safeguarding assessment of the young children in the family environment and their potential exposure to risk should P be discharged, has not yet been concluded.
The panel are sufficiently concerned with regards to the delay in putting a robust package in place, that they are minded to review, within the next 8 weeks, the criteria for P’scontinued detention in hospital.