Amending the Mental Health Act: Part 1 – Abolishing Hospital Managers
In the recent Queen’s speech, the government confirmed its intention to amend the Mental Health Act. A White Paper will be published to address the following:
- A greater control for patients over their treatment
- Making sure patients have a greater say in their care
- Greater choice and autonomy including the ability to set out preferences for care and treatment in advance
- Ensuring dignity and respect
- Reforming the process for detention and providing greater support for patients to challenge detention
- Making it easier for individuals with learning disabilities and autism to be discharged from hospital and improve how they are treated in law.
In a series of briefings we look at what amendments might be forthcoming.1
Abolishing Hospital Managers?
One of the topics for reform identified in the Queen’s speech is to reform the detention process and provide greater support for patients to challenge this. Will this include abolition of the power of discharge currently vested in hospital managers?
In October 2017 Theresa May announced a review of the Mental Health Act chaired by Professor Sir Simon Wessely, the Regius Professor of Psychiatry at King’s College London and President of The Royal Society of Medicine. His December 2018 Report included a proposal that hospital managers’ power of discharge should be taken over by the First Tier Tribunal. It is therefore likely that a reform of this aspect of the detention process will form part of the White Paper proposals.
Currently, patients detained under the Mental Health Act may be discharged by the Responsible Clinician, nearest relative or the hospital managers. The hospital managers for these purposes are a specific panel of individuals who are not employees of the detaining authority and thus provide a welcome level of independent and external input and scrutiny into the detention process. Their hearings are relatively informal and governed only by the limited guidance contained in the Code of Practice, and general principles of administrative and natural law. That said, the Act in its current form is almost 40 years old and there have been relatively few court cases arising from the actions of hospital managers – which might suggest the system is working reasonably well.
The replacement provision would likely be to give patients the right to appeal their detention to the First Tier Tribunal rather than the managers.
Whilst the Tribunal will obviously provide a more professional and structured process, if patients appeal all renewed detentions and the issue of all Barring Orders under Section 25 Mental Health Act are all referred to the Tribunal, the work of the Tribunal is likely to increase very significantly. One question is whether the government has the resources to commit to the extra administrative and judicial staff that would be needed. Further, on a merely practical point, can the additional qualified individuals be found to staff this?
Of course, the whole process of detention, appeal, discharge and renewal could be revamped to reduce the incidences of such applications and thus the impact on the Tribunal, but surely this only actually serves to reduce patient rights?
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.