Dangerousness - Residual Discretion

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 [2005] EWHC 2361.
The panel concluded the dangerousness critera was not demonstrated, however it retained residual discretion not to discharge for the following reasons:

  1. Home leave has not been sufficiently tested.
  2. 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.
  3. 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.
1 Like

Hi Rob
I represented SR in the Huntercombe case all those years ago. I do not think those reasons are sufficient to override dangerousness.

When was the decision made?
Ben Conroy

Thanks Ben, the decision was made in February of this year.

The N/R is a bit flakey on the details but doesnt think she was advised of her ability to the Tribunal

Unfortunately despite having represented the patient for a few years nobody advised me of the n/r application, HMH or anything else for that matter until the n/r contacted me directly this week.

Hi Rob

I haven’t researched it, but could you ask the DOH to refer the NR to the FTT given she wasn’t advised about her legal rights and is a lay person.

From a managers decision perspective, I guess you will need to serve them with a letter before claim for JR and see if they will hear it again with the NR being represented.

From the decision itself, the issues in SR all related to very serious issues of harm to her that were real and immediate. The grounds used in this decision are definitely not in that category. It is interesting to note the final reason isn’t a reason but is a direction to reconvene in 8 weeks, presumably if P remains detained at that point. I think this means the decision is not final and you can ask that a further hearing is listed asap and then argue the dangerousness criteria, that way avoiding the LBC being needed.

If the HM can just override the dangerousness criteria in the way they have done, then there is no point in the criteria existing at all.

Hope this helps.