We recently attended a renewal meeting in respect of a s37(n) who had been discharged onto a CTO by the time of the hearing. Despite our objections the Hospital Managers insisted on considering the statutory criteria relating to the s37(n) rather than the CTO. Even more bizarrely the managers questioned the clinical team on how the patient had been presenting in October when the section had been renewed! Although we are confident that the decision is unlawful I am not sure what to request in relation to this.
In my experience most hospitals quietly forget about the renewal meeting where the client has been discharged onto a CTO before it has taken place. In the past I have tried to pursue a case for unlawful detention where the hospital has not held any manager’s renewal meetings without success as, in fact, these are not mandatory. I think that because the Trust did hold the meeting they should probably hold it again using the correct criteria. Any other suggestions?
Sounds odd why they would just plough on when presumably all giving evidence and you (or a colleague) told them what the current situation is.
Paragraph 38.24 of the code is quite clear. Managers panels should ‘not make irrational decisions – that is, decisions which no managers’ panel, properly directing itself as to the law and on the available information, could have made’.
Surely a copy of their decision will confirm whether they considered the test set out in the code regarding detained patients or CTO and then be revisited if incorrect.
Sect 17D (2)(a) states that the managers authority under sect6(2) is suspended I assume therefore their authority to review the patients liability to be detained in hospital is suspended ie they have no authority to review
Sec 23 says the Managers must hold a review when the 37(n) is renewed. Once on CTO, the 37(n) is suspended and so no further renewal of the 37(n) whilst the CTO is in place. But the hearing relates to a previous action - the renewal before the CTO was made. The panel presumably thought that that process still needed to be completed but went about it all wrong.
I’m not a lawyer but I think I would ask the authority to arrange a fresh panel to consider the CTO and if they refuse, go for judicial review.
And it’s very disturbing to hear that some hospitals are ‘quietly forgetting about renewal meetings’. Where is the auditing and governance when this happens ?
Correction - my apologies, the requirement is not in sec 23 but chapter 38 of the Code.
PS it is the Managers authority to detain in hospital that is suspended by 17D(2)(a), they still have authority to review (at patient’s request and at renewal of CTO) and to order discharge.
Yes thank you-that is all correct.
For years I had assumed that s20 imposed a requirement on managers to hold a renewal meeting but it seems that it does not. Now I have realised that I am surprised that some hospitals don’t just dispense with them. (I do agree that this would not be in patient’s interests and am not advocating for it!)
I intend to ask the managers to hold another hearing but am wondering whether they have the power to quash their erroneous decision.
I would love to hear what cogent reasons these hospitals use to justify departing from the Code by not holding a review (which the Code says they ‘must’), thereby denying the patient the opportunity of an independent review with the possibility of discharge.
Nothing by way of cogent reasons whatsoever! We pushed it as far as we could but the Trust pointed out that HMM review of s20 is not mandatory. I did refer client to a firm to try to JR but he had savings and they advised little prospect of success.
Managers Hearings might not be mandatory but the Code is clear: It says ‘must’ hold a review, and regarding the word ‘must’ it says “Whilst the whole of the Code should be followed, please note that where ‘must’ is used, it reflects legal obligations in legislation (including other legislation such as the Human Rights Act 1998) or case law, and must be followed.”
And we know from the Munjaz ruling that where an authority departs from the Code it must record detailed cogent reasons why it did so.
Hence I don’t understand why JR would have little prospect of success.
(But I’m not a lawyer)
Well I tend to agree but the firm I referred the client to are extremely well-respected and, in fact , the case worker was a barrister- so it was really like getting counsel’s opinion. We had several discussions about it and he felt he could not advise the client to proceed . Of course the client was not eligiible for L/A (not that that should make any difference.)
Hi Karen,
I know this post was sometime ago but I wonder what happened in the end? Did the HMH reconvene/fresh panel and consider the CTO criteria instead?
I ask because I have just had a similar situation from a s3 to a CTO. I can’t find anywhere in the Code of Conduct where its says what they should be considering if the section status changes.