I have a client who is unable to have a tribunal, as one had already taken place within the eligibility period. A managers review has been requested but they would like an independent expert to assess them and if appropriate, to produce this evidence to the Managers. Sorry if this is a silly question, but is this possible or proportionate?
Not silly at all. The problem is that you have to decide whether it’s proportionate, and a couple of years later the LAA may very well come along and decide that it wasn’t. They will then claw back the cost of the independent report.
It is possible, if your client has the funds to organise it. (I’m making the assumption that you aren’t being funded via Legal Aid at this point) When the Managers are holding their hearing, your client is relying on the independent expert to state why the criteria for detention are not met, against the evidence of the detaining authority.
Is it proportionate? How long ago was the FTT? What are your client’s chances of success if other evidence is produced? They need to know what the Hospital Managers can and can’t do; ie even if a diagnosis is questioned by the independent expert, if the criteria for detention is still met the Managers will likely uphold the section.
Yes I agree with Helen. Putting aside who is going to pay for the report I, as a Hospital Manager Chair, am always happy to accept and consider any relevant evidence BUT the question is always whether the criteria for detention is met or not.
I also sit as a Hospital Manager Chair and would question whether the manager’s have the authority or means to request an independent assessment and report. Andy… do you know?
I’ve never heard of managers requesting a report, and I’m not sure who would pay for it if they did? But if the managers expressed a view that an independent report would be helpful, this would certainly help the patient’s legal rep to make the case to the LAA that it was justified and proportionate.
In the Act, the patient’s right to instruct an independent medical practitioner (who then has the right to access the patient and the notes) is set out at section 76, but the wording relates to Tribunal applications rather than appeals to the Managers. However the Nearest Relative’s right to instruct an expert is at s.24 and this isn’t dependent on a right to apply to the Tribunal. In light of South Staffs & Shropshire NHSFT v St George’s Hospital Managers (which says that Managers are equal in standing to a Tribunal) I don’t see why there shouldn’t be parity in this respect.