I thought I would pick everyone’s brains here for a colleagues case.
In summary- HMH discharged her client as they were not satisfied detention was necessary. Client agreed to remain informal and continue medication. However, HMH panel were aware that she did not wish to remain on current medication and alternatives would be discussed. HMH panel were of the view these changes could occur without the s.3. Once she was discharged, she stopped her medication (Form A8 suggests this) and subsequently had been re-sectioned two days after discharge from HMH.
Now I note the case of Brandenburg re: sectioning following discharge by FTT- it could be seen that there has been a change in circumstances due to client now not taking medication when she suggested she would.
Any grounds on the basis s.3(2) not made out at time of admission? From what I can see, section papers do not suggests any evidence of degree- but voice concerns about stopping medication and risk of relapse?
See paras 29 and 30:
“29. A second preliminary issue is whether the Trust has an alternative remedy available in that it is open to it to re-section AU under section 3 and therefore judicial review should not be granted. Both Ms Curtis and Ms Rickard contend that if a responsible clinician disagrees with a decision of a Panel to discharge a patient it can invoke the holding power under section 5, while an assessment is carried out and a section 3 order imposed.
30. To my mind this is not a suitable alternative remedy. A responsible clinician may well take the view that to re-section a patient after a Panel has ordered discharge would be to undermine the panel system. Moreover, in R (Von Brandenburg) v. East London and the City Mental Health NHS Trust , the House of Lords held that what is now an approved mental health professional, who was aware of a Tribunal’s decision to discharge a patient, could not lawfully apply for admission under section 2 or 3 of the 1983 Act unless reasonably and in good faith she considered that there was information, unknown to the tribunal, which place a significantly different complexion on the case. Ms Rickard sought to distinguish R (Von Brandenburg) on the basis that there the decision was of a Tribunal, and as a court the law of contempt applied. I reject that submission given my view, expressed elsewhere in the judgment, that the Parliamentary intention is that a panel appointed under section 23 of the Act has equal standing when ordering discharge to that of a Tribunal operating under section 72. In my view, even if the same result might be achievable through other means, judicial review is an appropriate remedy in this type of case.”
So, you’re right- the issue is whether or not information unknown to the panel has placed a significantly different complexion on the case.
I wouldn’t want to venture a view based on the information which you’ve provided.
Cheers,
Nick