Who should exercise the Hospital Managers’ Discharge Power under s.23, Mental Health Act 1983?

Webb, Thomas (2024) Who should exercise the Hospital Managers’ Discharge Power under s.23, Mental Health Act 1983? Public Law. ISSN 0033-3565 (In Press)

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Abstract

Section 23, Mental Health Act 1983 (the Act) empowers Hospital Managers to review decisions made by healthcare professionals about whether compulsory mental health care is justified, and to order a person’s discharge where they find it is not. Decisions are made by Hospital Manager Panels (HMPs) in a judicial-type process. Section 23 expressly authorises Hospital Managers to delegate this responsibility, and indeed it is assumed that Hospital Managers pass their HMP function to specially appointed members of the local community; Associate Hospital Managers (AHMs). There is no data about whether, or understanding of the basis upon which, delegation occurs. To address this in relation to NHS providers of mental healthcare, this paper discusses i) data derived from Freedom of Information Act requests to 62 NHS trusts and health boards in England and Wales, and ii) a framework to justify how delegation decisions should be made by Hospital Managers based on expectations arising from governance arrangements, constitutionality, and democratic community legitimacy. This framework is grounded in the expectation that HMPs serve three functions: review mechanism, safeguard for service user rights, and democratic legitimacy-generating process. This framework promotes an approach to HMPs which should be incorporated into any future mental health legislation, following the demise of the Draft Mental Health Bill 2022.