It has been mentioned to me that when hospital managers are hearing a barring order that, even if the dangerousness criteria is not met, they still have discretionary power not to discharge the patient. How is this discretionary power applied and what is the procedure?
Thanks,
Bob
This issue was considered by the High Court in SR v Huntercombe, where amongst other things, Jackson J. considered the scope of the Hospital Managers (HMs) power of discharge and decided that because there is nothing in the Act that directs what the HMs must consider in reaching their decision, they have a general discretion based on the facts of the case, as to what decision they ultimately reach.
So whilst they have to make sure that all relevant evidence is properly considered, even if the ‘dangerousness’ criterion is judged to be met, it is not an inflexible rule such that the HMs must discharge; there may be other significant factors that point to detention continuing.
However, if the dangerousness criteria is not met, how do we apply our decision not to discharge legally?
I looked at Huntercombe for guidance but it wasn’t clear to me.
Thanks,
Bob
The guidance is contained at Para 38.24 of the Code of Practice
The Act does not define the procedure for reviewing a patient’s detention or a CTO. However, the exercise of this power is subject to the general law and to public law duties that arise from it. Hospital managers’ conduct of reviews must satisfy the fundamental legal requirements of fairness, reasonableness and lawfulness. Hospital managers’ panels should:
• adopt and apply a procedure which is fair and reasonable
• 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, and
• not act unlawfully – that is, contrary to the provisions of the Act and any other legislation (including the Human Rights Act 1998 (HRA) and the Equality Act 2010 – for further details see chapter 3)
The decision must be rational and also one open to a reasonable body of managers on the available evidence. As long as the managers can justify their decision with a cogent explanation, there’s no falling foul of their powers to (or in this case, not to) order discharge.
Firstly, apologies, I think I have accidentally flagged some of these posts for review when I did not mean to - I was trying to work out how to use the reply function on my phone!
In barring order cases you also need to look at the following extracts from the Code of Practice as there is reference to exceptional reasons not to discharge in these circumstances (my emphasis added). I have e never been able to find any definition of exceptional in this context, but I think the ordinary meaning of the word is probably a good starting point.
38.20 Where the answer to all the relevant questions above is ‘yes’, but the responsible
clinician has made a report under section 25 barring a nearest relative’s attempt to
discharge the patient, the panel should also consider the following question:
- Would the patient, if discharged, be likely to act in a manner that is dangerous to
other persons or to themselves?38.21 This last question provides a more stringent test for continuing the detention or the
CTO (see chapter 29).38.22 If three or more members of the panel (being a majority) disagree with the
responsible clinician and decide that the answer to this question is ‘no’, the panel
should usually discharge the patient. The hospital managers retain a residual
discretion not to discharge in these cases, so panels should always consider
whether there are exceptional reasons why the patient should not be discharged.
Just to add to the discussion further; I’ve had too many HMHs to count where the panel have found dangerousness not met and yet not discharged. This is wholly anecdotal but I think the concept is misunderstood. Hospital Managers (again, in my experience) often look at the general detention criteria from a longitudinal perspective but look at dangerousness as a snapshot. Obviously that’s not correct - dangerousness doesn’t need to be immediate nor spontaneous. I usually read the written decisions and think to myself “well they do think dangerousness is met, just after [P stops taking medication]/[P takes substances]/[P disengages from CMHT]” etc.
I think there are two points to consider: first, as has been pointed out, Hospital Managers Hearings are not actually subject to the MHA criteria in the same way Tribunal Hearings are. They adopt the same criteria, usually, because there is an existing framework. You might want to ask the MHAO for their guidance to Hospital Managers. Secondly you can not appeal because you do not need to - you can just apply again and, if the hospital is difficult about listing back to back hearings like that, you can use the argument that the previous panel did not follow the usual procedure. You might also want to ask for different Managers.