NR provided a typed letter to the ward manager on Friday evening at about 4pm and told the Ward Manager it was a letter exercising her right to discharge and wanted this to be sent immediately to the hospital managers.
Today at 5pm I called the ward to see what has been done in relation to the letter to be advised that it is not on their system and has no knowledge of the letter but will escalate the matter and speak to the duty doctor.
The duty doctor advised that as they have no knowledge of the letter and therefore the 72 hours has not started yet.
Would a ward manager be an officer of the managers authorised by the manager to receive it satisfying (a) . If so and has been sitting on the desk of the ward manager and not processed what it the legal ramifications?
Hi. I would personally ask to see the hospitals scheme of delegation to see if ward managers are recognised by the hospital to receive such. Generally this should be sent and clock ticks on receipt to the MHA office who works for the associate managers. Also noting within office hours. Was the letter sent via email? Was receipt recognised?
Letter was handed directly to the ward manager and informed that it was a discharge letter and asked for it to be sent to the hospital managers as a matter of urgency.
FWIW, from a hospital perspective, I always took the view that in a situation such as this, the notice was served on the hospital managers at 4pm, otherwise you can end up with notices being âlostâ ad infinitum. If allowing some flexibility, at the very least, an hour is ample time to get it to the RC, no matter what day and time.
And what would be the view if the NR handed the notice directly to the RC? Difficult to defend that it hadnât been served in either case.
The relative has to appeal the section 3.If she/he had given the letter the Rc/Ac or the hospital managers or MHA Law office administrator to reply within 72hrs & arrange an urgent MHRT hearing etc.
Speaking pragmatically as a former NHS manager (administrator not MHA manager) ⌠If any member of staff receives a communication that may be important, but which is " above their pay grade " or outwith their sphere of authority, they should pass it up the line without unreasonable delay. If the staff member (ward manager) was informed that it was a legal document intended for an officer with statutory responsibility that required an immediate response, that is what they should do - pass it on⌠âImmediateâ is a tall order, but I would suggest it is not unreasonable to either hand it to the authorised recipient, phone/email and tell them there is an urgent communication for them and would they (or their staff member) please come and get it, or scan it and send it by fax/email to the intended recipient. This depends on the local protocol for dealing with mail. In my view, âimmediateâ obviously does not mean instantaneous, but it does need action of some sort of urgency, not just putting in a filing tray.
A ward manager should have sufficient knowledge of the legal process to understand the significance of the request ⌠it was not as if it was handed over to a basic grade clerk in the post room who might be excused for putting in a pigeon-hole. NRs need to be able to assume that correspondence will be passed on without delay or interception. I see this as analogous to a complaint, where a staff member receiving a complaint must pass it on to a manager without unreasonable delay, so it may be logged and dealt with. The alternative is to say that the NR is expected to find the MHA Administrator and hand-deliver it, which is clearly unreasonable.
(3) Where a patient is liable to be detained in a hospital under Part 2 of the Actâ
(a) any order by the nearest relative of the patient under section 23 for the patientâs discharge, and
(b) the notice of such order given under section 25(1), shall be served either byâ
(i) delivery of the order or notice at that hospital to an officer of the managers authorised by the managers to receive it,
(ii) sending it by pre-paid post to those managers at that hospital,
(iii) delivering it using an internal mail system operated by the managers upon whom it is to be served, if those managers agree, or
(iv) sending it by means of electronic communication to the managers at that hospital, if those managers agree.
The closest case I can think of is Re GK (Patient: Habeas Corpus) [1999] EWHC Admin 577. Iâve put the judgment transcript online today. The court was quite strict in interpreting the regulation, placing the âbalance of riskâ on the NR when the personal delivery option is used: so giving it to a receptionist who put it in the MHA Administratorâs pigeon hole wasnât sufficient to start time running.
As Gemma says, your first port of call would be to find out whether the ward manager had in fact been authorised to receive it. Otherwise on judicial review youâd have to argue that the regulation should be interpreted in the nearest relativeâs favour â maybe because (unlike in GK) the NR explained the importance of the document and of sending it to the hospital managers, and the ward manager effectively held himself out as being authorised to receive it, or maybe because it was reasonable for the NR to assume that a ward manager who accepted it was authorised to receive it. Youâd also have to deal with the hospitalâs denial of the discharge requestâs existence. Give it a go and get counselâs opinion at least.
Hi, there could be some potential âcross-overâ points of relevance in the Moderasi case as well. That was all about the âspeedinessâ of access to a Tribunal and the passing of a patientâs request from a hospital to the Tribunal. Different bit of the Act, but the principles are likely to be the same. Especially telling are Lady Haleâs remarks:
It would be helpful if the Code were also to advise that the
hospital should ensure that tribunal applications which are given to hospital staff
are transmitted to the tribunal without delay. A detained patient is in no position to
ensure that her application reaches the tribunal unless the hospital affords her the
facilities for it to do so.
The hospital initially advised that it was given to the ward manager on Sunday and therefore time starts from then. However upon disputing this they confirmed that it was given on Friday evening but was not explained what the letter was and was addressed to the hospital managers.
They have now advised that it was put in the internal postbox and the time did not start until the postman picked it up this morning. Please note that the ward manager also scanned it to be MHAA this morning prior to being picked up.
I have escalated the matter to the associate director who advised that even if it was to have been sent to them on Friday it would not count under reg 3.7.b and would take effect from Monday at midnight only and therefore the delay is negligible.
It has been an extremely long day however I cannot find this regulation and cannot recall anything saying that the 72 hours is paused over the weekend if an application is handed in on a Friday evening and hours donât start until Monday at Midnight.
Thereâs nothing saying that the 72 hours pauses over a weekend or only runs during business days.
The regulation will be reg 3(7)(b) of Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 (link above) which states:
(7) Where a document under this regulation is delivered using an internal mail system, service is considered to have taken place immediately it is delivered into the internal mail system.
The other relevant regulation is reg 3(3)(b)(iii):
(iii) delivering it using an internal mail system operated by the managers upon whom it is to be served, if those managers agree
Iâve never really understood how a nearest relative would deliver using an internal mail system. Maybe a member of staff telling the NR that the letter will be put in the internal mail would suffice.
It seems that the hospital managers have agreed to accept service by internal mail, by saying that time runs from when the postman picked it up.
However, reg 3(7)(b) seems to help you rather than them. Youâd imagine that the letter was âdelivered into the internal mail systemâ when the ward manager posted it (or whatever verb the NHS uses) on Friday rather than when the postman picked it up on Monday.
My experience working for the NHS suggests the NR could : (a) hand the letter in to the main reception desk (which should be staffed during opening hours, including evenings and weekends) or to the post room. Staff there have a duty to receive incoming items and deal with them appropriately. Ideally ask for a receipt. (b) As in this case, hand it to the ward manager. The job title Ward Manager implies authority - Cambridge dictionary defines manager as " someone in control of an office,shop,team, etc. " The NR should reasonably be entitled to assume that the Ward Manager had the necessary authority - or if not, to âsignpostâ the correct procedure.
The âpostmanâ referred to is a manual worker, usually a porter, who collects the mail once it is in the system and takes it to the post room for onward delivery. In hospitals there are porters on duty 24/7/365. Are the managers saying that if on a particular day the post porter does not collect the mail from the ward, for whatever reason (weekend, off sick, too busy) the notice does not take effect until whenever the mail is collected?
I know we no longer make the antiquated distinction between âofficersâ and âservantsâ but there are still distinctions between professional and managerial, admin and clerical, and manual staff in terms of responsibility. It is not logical that the document is only legally âreceivedâ when it is collected by a manual employee, not when it is handed to a manager.
Handing to a receptionist was not good enough in Re GK (above). But interestingly, the court was only considering the first option (delivery to an officer of the managers) as I donât think the third option (delivery using internal mail) existed at the time of that judgment. Iâve not double checked, but I guess that it first appeared in the 2008 regulations.