Richard Jones, 'Response to MHA Review (2): Managers' hearings' (10/12/18)
Article This article considers the MHA Review's recommendations in relation to hospital managers' hearings.
The Review makes significant recommendations relating to the power of the hospital managers to discharge patients from detention. Bizarrely, these recommendations are contained in a section of its report which has the heading "Hospital Visitors" which indicates that the report was drafted in haste.
The Review recommends that the "power of associate hospital managers to order discharge following a hearing should be removed" on the ground that such a hearing "duplicates the role of the Tribunal and does not represent an effective use of scarce resources". No recommendation is made as to what procedure should replace hospital managers' hearings if a patient makes an application to the managers for discharge. Given that the Review adopted a "rights-based approach" to its deliberations, it is surprising that the right of patients to have their applications for discharge considered at a managers' hearing has been dismissed so easily.
The MHA provides hospital managers with a power to discharge patients and the managers must have a procedure that enables them to discharge this function. In 1996, Stephen Dorrell, the then Secretary of State for Health, attempted to do what the Review is recommending as a response to a decision by hospital managers to discharge a patient who subsequently committed a serious offence. The Secretary of State was advised that such action was not legally possible. It is a pity that the Review did not have access to similar advice because in the absence of hearings conducted by associate hospital managers the only option available to hospitals to consider a patient's request for discharge would be to convene panels comprising the non-executive directors of the NHS trust or the Health Board. This is not a feasible option.
Although it would not be possible for Parliament to enact the Review's proposal to remove the power of associate hospital managers to order the patient's discharge, there is clearly an issue of duplication of effort with the tribunal's power of discharge. This problem, which was highlighted in 1996 by a working group which was established at the request of the Department of Health, could be tackled by robust guidance in the Code of Practice regarding the timing of managers' hearings if the tribunal has recently considered the patient's case or is due to do so in the near future.
The Review than turned its attention to the function of associate hospital managers when considering the renewals of detention. Managers undertake this function by holding hearings. The purpose of a renewal is to give the hospital managers an opportunity to consider whether they should discharge the patient from detention: see s.20(3) of the MHA. The Review states that they "are not convinced" that a review by associate hospital managers is needed. The purported justification for this stance is contained in the following footnote to page 146 its report:
"Because section 20 MHA 1983 already requires that another person (of a different profession to that of the RC) agrees that the criteria for detention are met before the RC can submit the renewal paperwork. This means it cannot be on say-so of one person, which would be inconsistent with our obligations under the ECHR."
It is difficult to identify the relevance of this footnote as it does not address the question of how the hospital managers are to consider exercising their power of discharge in the absence of a hearing.
The review goes on to say that they "understand that in any case many 'hearings' are done on paper without the patient present. We think that the paperwork could be considered, for instance, by a single, suitably trained, manager, or alternatively a clinician not involved in the patient's care". If this statement is meant to imply that either of these individuals could exercise the hospital managers' power of discharge it is incorrect as the managers' power of discharge can only be exercised by a committee comprising a minimum of three members. An "officer" of the hospital cannot be a member of the committee: see s.23(4)(5) of the MHA.
The only alternative to hospital managers' hearings being used to consider renewals is for the MHA to be amended to enable the renewal function to be undertaken by the tribunal. The Review rejected this option (without considering the need for the MHA to be amended) on the ground that it would not "be a proportionate use of the Tribunal's time and would simply move burdens around the system".
Finally, the review states:
"If it is felt that a hearing of some kind is necessary for all renewals, then the government should think about who is best placed to hold it."
The government might find this statement to be less than helpful given that it is not possible to remove the need for hearings in the absence of fundamental changes to the MHA.
The Review's failure to understand the requirements of the MHA regarding the discharge and renewal functions is concerning.