Managers must consider dangerousness criterion when reviewing detention after RMO's barring order, and in almost all circumstances discharge if not satisfied of that criterion.
Huzzey was detained under s2 then s3. His nearest relative sought his discharge under s23. The RMO issued a barring order under s25 as he believed the dangerousness criterion to be met. A barring order contains a certification of the dangerousness criterion as follows:
- "the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself."
In such a situation the hospital managers are required by the Code of Practice to review the detention. A Hospital Managers' Hearing was convened on 30 July 1996 and upheld the section.
These were their reasons:
- "In our opinion Gary Huzzy (sic) requires treatment following further assessment as a detained in-patient, for the protection of others and his own well being. We therefore reject the appeal."
A MHRT subsequently discharged the patient on 24 October 1996.
The claimant argued that the decision was unlawful and irrational, and that the managers had not given proper reasons. If this were the case, it was accepted by both sides that the detention following the managers' hearing would be unlawful.
(1) The reasons given did not satisfy the s3 criteria. Neither could the panel rely on the context given by the medical report, since it was based on the premise that further assessment was needed before treatment.
(2) The dangerousness criterion is a relevant consideration as it was this criterion which the RMO used to justify continued detention; if managers disagree with the RMO then they should, in almost all circumstances, order discharge.
(3) The reasons were sufficient and sufficient enough to expose the flaws.
Managers' decision quashed.
The case continued in the county court where Huzzey was awarded £26,000 total damages. Unfortunately for him he had rejected a £30,000 offer and had to pay the defendant's legal costs.
There are no statutory criteria for the managers when exercising their discretion under s25 (whereas if the nearest relative of a s3 patient applies to the MHRT following a barring order, s72 explicitly refers to the dangerousness criterion). This case provided guidance to managers which is now reflected in the Code of Practice.
It is not true to say that a patient will always be entitled to discharge if the panel disagree with the RMO: see R (SR) v Huntercombe Maidenhead Hospital (2005) EWHC 2361 for an example of exceptional circumstances.
The defendant argued that s25 merely provided a mechanism for barring the NR's request for discharge, rather than affecting the discharge considerations, but Latham said this:
- In my view, this argument fails to address the fact that section 23 provides, inter alia, a general discretion in the managers to discharge a patient. No criteria are set out as to what should or should not be taken into account by managers when considering a decision as to whether or not to discharge. The question of what are the relevant considerations has to be answered by looking at the general scheme of the Act. Clearly the criteria set out in section 3 of the Act are of fundamental importance. If the criteria for admission no longer exist, I cannot see how any decision by managers not to discharge could be other than perverse hence my conclusion on Mr Gledhill’s first point. But that does not mean that the managers are restricted to considering those criteria. Section 23 implicitly recognises that managers have a discretion to discharge even if those criteria have been met. Where, as in the present case, a nearest relative has sought to obtain a discharge order but has been confronted by a barring report, those facts must equally be relevant and material considerations. In my view, the managers are not only entitled to, but must, consider whether or not they are persuaded by the barring report that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself. For if they are not so persuaded, they will have reached the position that the nearest relative would have been entitled to an order for discharge if the responsible medical officer had not come to what they have decided was an erroneous conclusion as to the danger presented by the patient. That cannot be anything other than a relevant and material consideration, and would be likely, in almost all circumstances, to mean that discharge should be ordered. In the present case, the Managers do not appear to have addressed their minds to this question at all. If they had, it may be that they would have concluded that the responsible medical officers opinion was correct. But their failure to apply their minds to this question means that, in my view, the decision was irrational and must be quashed on that ground."
MR JUSTICE LATHAM
MR K GLEDHILL (instructed by Messrs Anthony Stokoe Solicitors, Surrey KT2 6PW) appeared on behalf of the applicant.
MR G CLARKE (instructed by Messrs Radcliffes Crossman, Westminister, SW1P 3SJ) appeared on behalf of the respondent.
Evening Gazette 4th Dec 2000:
- '...Gary Huzzey is claiming compensation for false imprisonment after winning a High Court battle over his "unlawful and irrational" detention.
- He revealed that Riverside Mental Health Trust has now offered him £30,000 to settle out of court. The figure was double that offered last month.
- Mr Huzzey, of Thameside Crescent, said: "I gracefully turned it down because it is an insult."
- He will now have his case heard by a jury in February to set the level of compensation he should be awarded...'
Evening Gazette 27th Feb 2001:
- '...The result meant that Mr Justice Gray ordered him to pay the legal costs of the trial.
- Mr Huzzey commented: "That's the risk one takes with a jury trial. But at the end of the day £26,000 is the largest award ever for a case of this nature." ...'