I’ve been mulling this over and here are my thoughts (for what they’re worth). This does not constitute legal advice and I’m setting out my interpretation, which could absolutely be wrong.
Taking a purposive approach - parliament clearly set out certain requirements that applications and renewals must meet for detention to be valid. The Code of Practice is a helpful extension of regulations but it doesn’t create the law.
What does the MHA say?
Section 20(8) states that the authority to detain continues on the completion of the renewal of the section.
Section 23(2)-(6) confers a power of discharge to the ‘hospital managers’ which may be delegated to associate managers.
Section 118 provides the duty for the Secretary of State to provide a Code of Practice.
So what does the CoP say?
At 38.50 it recognises that “If a responsible clinician or the hospital manager, as appropriate, does not hold a review before the period of detention or CTO expires, this should be considered a very serious matter that should be urgently reviewed (see paragraphs 32.10).”
Para 32.10 states the RC not renewing makes subsequent detention unlawful (as we know from S.20(8) MHA 1983), and refers to the procedure that should be followed to ensure this does not happen again.
Note that 32.10 explicitly states “not renewing shall make this section unlawful” whilst 38.50 only states “this is a serious matter and the following review should take place.” I think 38.50 in mentioning 32.10 is referring to how such a failure should be documented & reviewed, not the lawfulness.
Final thoughts
Hospital Managers are an important safeguard, but the MHA itself is completely blank about managers reviews, as the authority to detain comes from the furnishing of the S.20/S20A report, not the subsequent review. The CoP is “guidance and not instruction” (see: Munjaz) and “does not have the binding effect which a statutory provision or a statutory instrument would have”, although departing requires “cogent reasons”. The Code of Practice cannot, in itself, dictate the validity of a section.
I think the most likely outcome of all of this is that not holding a review is bad practice and might attract the ire of the CQC, but does not invalidate a section.
Failure to follow the Code could be the basis of a judicial review case - remedies could compel a hearing to take place, provide a declaration that the Code was breached absent cogent reasons, or quash an unlawful policy. However, it’s unlikely that a failure to hold a managers review could even lead to a HR claim because the managers aren’t a “court” for the purposes of Art 5(4). That issue is resolved by s.68 references (which are dictated by statute).
“Too Long Didn’t Read”
- The MHA makes clear that the RC furnishing a report makes a valid renewal. There is no statutory requirement for a subsequent managers review.
- The Code of Practice makes a review obligatory in policy terms and its breach is serious, but under Munjaz the Code cannot create binding law as to section validity (although not following could be unlawful on public law grounds).
- Therefore - on what basis is the section invalidated? MHA makes no mention and CoP doesn’t (and can’t) give a legal view.
Thoughts are welcome. Sorry for the long post - I was trying to parse through as I was writing.