Hospital Managers' Hearing

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Similarities with Tribunals

Hospital managers are similar to Tribunals and therefore can be useful preparation prior to Tribunals:

  • There are almost invariably three people on the panel.
  • They receive written medical, social circumstances and nursing reports, and oral evidence from the authors.
  • They have a power to discharge patients (s2, s3, CTO).

Differences to Tribunals

However, there are differences:

  • Decisions must be taken by a majority comprising at least three people. In practice, panels almost invariably consist of three members so they must be unanimous (R (Tagoe-Thompson) v Hospital Managers of the Park Royal Centre [2003] EWCA Civ 330M). By contrast, Tribunals can make majority decisions to discharge.
  • There is no panel member with ‘legal’ or ‘medical’ status.
    • Many believe that as a result they are generally less willing to discharge patients.
    • Others see the lay nature as being an advantage over the Tribunal.
  • As there is no medical member, there is no medical examination before the hearing.
  • In practice they have the power to discharge unrestricted patients only (in theory the MoJ could consent to their discharge of restricted hospital order patients).
  • They are organised by the hospital MHA Administration, whereas Tribunals are organised by the Tribunal secretariat in Leicester.
  • Rather than granting delayed discharges they tend to adjourn for a further hearing.
  • There are no eligibility periods: an application can be made at any time. Thus an application can be useful if, say, the patient applied to the Tribunal at the start of a 12-month eligibility period. However, hospitals often have policies to limit the number of hearings, in particular if a tribunal hearing is recent or imminent. In R (Z) v Camden and Islington NHS Foundation Trust [2013] EWCA Civ 1425M the Court of Appeal decided that it was lawful for the hospital not to hold a managers’ hearing because it was reasonable to wait a few days for the (s2) tribunal.
  • The hearings are usually less formal than Tribunal hearings.

Procedure

Under the Code of Practice 2015 (paragraphs 38.12 and 38.13):

Hospital managers:

  • may undertake a review of whether or not a patient should be discharged at any time at their discretion;
  • must undertake a review if the patient’s responsible clinician submits to them a report under section 20 of the Act renewing detention or under section 20A extending the CTO;
  • should consider holding a review when they receive a request from a patient (who may be supported by their independent mental health advocate (IMHA), independent mental capacity advocate (IMCA), attorney or deputy or a carer, and
  • should consider holding a review when the responsible clinician makes a report to them under section 25 barring an order by the nearest relative to discharge a patient.

In the last two cases, when deciding whether to consider the case, managers’ panels are entitled to take into account whether the Tribunal has recently considered the patient’s case or is due to do so in the near future. The decision should be recorded in writing and if the decision is taken not to consider the case the reasons documented.

The managers will refer to the guidance on discharge in chapter 38 of the Code of Practice, so the representative should refer to that rather than the statutory criteria for tribunals. They are worded similarly.

In South Staffordshire and Shropshire Healthcare NHSFT v Hospital Managers of St George’s Hospital [2016] EWHC 1196 (Admin)M, [2016] MHLO 17 the High Court decided that the Trust could judicially review a hospital managers’ hearing decision to discharge a patient, but the claim itself was unsuccessful.

Coronavirus

The following guidance documents relate to hospital managers’ hearings during the coronavirus pandemic:

Further reading

  • Mental Health Act 1983, s23.
  • MHA Code of Practice, chapter 38, in particular in relation to the criteria, discretion and adjournment.

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