From Mental Health Law Online
Panel of three hospital managers must be unanimous in order to discharge patient.
R (Tagoe-Thompson) v The Hospital Managers of the Park Royal Centre (2003) EWCA Civ 330
The patient was detained under s3 and applied for a Hospital managers' hearing. Two of the three panel members favoured discharge, but in the absence of unanimity the panel decision was not to discharge.
The claimant's case was that a simple majority of the panel was sufficient, that the decision had discharged him from detention and the subsequent detention was unlawful. He applied for a writ of habeas corpus and judicial review.
The High Court judge had held that s23(4) was clear that there must be three of more members prepared to exercise the power of discharge. Section 23(4) states:
- The powers conferred by this section on any authority, trust or body of persons may be exercised … by any three or more members of that authority, trust or body which has been authorised by them in that behalf or by three or more members of a committee of sub-committee of that authority, trust or body which has been authorised by them in that behalf.
The claimant appealed to the Court of Appeal on the proper construction of s23(4).
The common law position was that judicial and quasi-judicial bodies generally operate by majority voting, unless statute or the nature of the power justifies a departure from this rule.
The claimant submitted that if Parliament's intention was to depart from this rule then s23(4) would have been worded differently. He submitted that a requirement for unanimity was uncertain and may be arbitrary, but this was rejected. He made a comparison with MHRTs, which utilise majority voting, but the judge stated that MHRTs are altogether different. It was accepted that there was no Article 5 breach.
"The sub-section does not create jurisdiction in or confer power on a panel or tribunal; it requires a decision in favour of release by each of 3 people" The context supports that view:
- While the liberty of the subject is important, so too is the welfare of the patient who may require detention in hospital.
- The RMO has a central place in the operation of the Act. "It is not in the least surprising that, in circumstances in which the members are laymen, may not be directors of the trust and whose expertise may be limited, a finding that the affirmative view of at least three of them is required to override the opinion of the RMO and authorise release."
- Other sections of the Act impose a direct duty on individuals to express an opinion (e.g. s2, s3, s37). The requirement for at least 3 members is consistent with the level of safeguard throughout the Act (e.g. SOADs).
- The managers' decision is not a once-for-all decision. The Code of Practice envisages successive reviews within relatively short periods, and the patient can apply to the MHRT.
Agreed with Pill LJ, being influenced in particular by the pivotal position of the RMO as mentioned above.
Agreed with Pill and Laws LJJ on the ordinary meaning of s23(4).
A further reason was that "Parliament has made separate provisions for quorums at meeting of members of the trust or any subcommittee... Given that these regulations make provision for the quorum at meetings of the trust and its committees and sub-committees, it seems to me unlikely that function is also fulfilled by s23(4) of the 1983 Act."
Kris Gledhill and Roger Pezzani (instructed by Messrs INYAMA & Co) for the Appellant
Tom Weisselberg (instructed by Messrs RADCLIFFES LEBRASSEUR) for the Respondents
This was not appealed again, and remains good law.