Associate Hospital Managers’ Discharge Powers Under Section 23: Should the Days of the Hospital Managers’ Hearings Be Numbered?

Abstract

Aims

Under section 23 of the Mental Health Act, the managers of the hospital have the power to order discharge of a patient detained under certain sections. In the past, the need for this power has been questioned, but the debate reared its head following the ‘Modernising the Mental Health Act’ government review in 2018, which initially proposed that the managers’ hearing should be abolished. The aim of this research was to critically analyse the law to determine whether or not managers’ hearings should be removed in legal reform.

Methods

A literature review was performed using the legal databases Lexis Library and Westlaw to identify relevant primary legislation, secondary legislation, case law, articles and other secondary sources. These were critically analysed to discuss the managers’ hearing's strengths, weaknesses and potential proposals for reform.

Results

In favour of retaining the managers’ hearing in its existing format, it provides an independent power of discharge that is accessible, subject to scrutiny and an important safeguard, particularly for those lacking capacity. In favour of abolishing the managers’ hearing, the tribunal system satisfies the Government's requirement under Article 5(4) of the European Convention for Human Rights; the managers’ panel could be viewed as a duplication of effort without legal representation and a necessary medical member, with limited powers in comparison to a tribunal and arguably low discharge rates. Its usual procedure was challenged during the COVID-19 pandemic, and the Convention on the Rights of Persons with Disabilities moves away from the traditional medical model, suggesting reforms to the Act may be needed.

Conclusion

Case law has ruled that the managers’ panel has equivalent standing to the tribunal and criticism has been largely anecdotal. The absence of evidence surrounding the process is a major weakness in this debate with no nationally held records of outcomes. Whilst the duplication of effort and overlap with the tribunals’ powers has been a consistent argument for abolishment, the managers’ hearing stands as a robust and accessible safeguard in providing an opportunity for detention under the Act to be reviewed. Any reform must continue to empower and involve patients, supporting them in exercising their rights. On balance, this review concludes that the days of the managers’ hearing should not be numbered without further research.

This research was completed as a Masters in Mental Health Law (LLM) dissertation through the University of Northumbria.