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Mental health law briefing 234 – What happens if hospital managers make a discharge decision in error?

Hospital managers exercise the Power of Discharge under Section 23 Mental Health Act. On occasion this may well be counter to the view of the treating clinicians who may consider the managers erred in coming to that conclusion.

In that situation what can be done?

An immediate question is whether it is possible to re-section the patient immediately. Unless there has been a change of circumstance (such as a deterioration in the patient’s condition) or matters arise that were unknown to the managers, that is not possible.[1]

But if it is felt the managers have erred in their decision, can the hospital authority take action against them? The hospital authority (be it NHS Trust or independent hospital) has delegated the Section 23 decision making power to the hospital managers to act on its behalf. It might be thought that for an NHS Trust to sue its own hospital managers would, in effect, amount to the Trust suing itself.

A recent case has confirmed that the Trust can indeed take action against the managers in such circumstances. The delegation of the Section 23 Power is to a body that Parliament intended to be independent and therefore judicial review proceedings against the managers is permissible.[2]

For further information or guidance, please contact:

Andrew Parsons
Partner and Head of Healthcare – Providers
T. 020 7227 7282

[1] See R (on the application of Von Brandenburg) v East London and City Mental Health NHS Trust [2003] UKHL58
[2] South Staffordshire & Shropshire Healthcare NHS Foundation Trust the St George’s Hospital Managers [2015] EWHC1196 (admin)


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.

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