The role of hospital managers under the Mental Health Act 1983

Feature

posted 1 Mar 1999 in Volume 4 Issue 3

The role of hospital managers under the Mental Health Act 1983

The Mental Health Act 1983 ('the Act') places important duties on managers of hospitals where patients are detained. Such responsibilities include ensuring that the grounds for detention are valid, that the admission papers are in order and that detained patients are informed of their rights under the Act.

The Code of Practice to the Mental Health Act 1983 (which has recently been revised - 'the revised Code')1 explains what is meant by 'Hospital Managers':

'The Hospital managers have a central role in operating the provisions of the Act. In England and Wales, in general NHS Hospitals are owned by NHS Trusts. For these hospitals, the Trusts themselves are defined as the "managers" for the purpose of the Act. In the case of a mental nursing home the person or persons in whose name the home is registered are managers for the purposes of the Act.'2

The revised Code also emphasises the importance of Hospital Managers:

"It is the Hospital Managers who have the power to detain patients who have been admitted under the Act. They have the key responsibility for seeing that the requirements of the Act are followed. In particular they must ensure that patients are detained only as the Act allows, that their treatment and care accord fully with its provisions, and that they are fully informed of, and are supported in exercising their statutory rights."3

Ensuring that the grounds for detention are met

The revised Code points out that one of the duties of hospital managers is to ensure that the grounds for admitting a person under the Act are valid and that all the relevant admission documents are in order4.

If errors are found it may be possible to rectify them. The Memorandum to the Act, which describes the main provisions of the Act, explains:

"Section 15 allows an application or medical recommendation which is found to be in any respect incorrect or defective to be amended by the person who signed it, with the consent of the managers of the hospital, within the period of 14 days from the date of the patient's admission. Faults which may be capable of amendment under this section include the leaving blank of any spaces on the form which should have been filled in (other than the signature) or failure to delete one or more alternatives in places where only one can be correct."5

However some errors will be incapable of rectification. For instance, the Act states that where an application is founded on two medical recommendations which do not agree on the category of mental disorder from which the patient suffers, the medical recommendations cannot be amended. The Memorandum to the Act points out that a document will not be valid if it is not signed by a person empowered to do so under the Act6. Thus, an application for admission under section 3 which incorrectly states that the approved social worker had consulted with the patient's nearest relative would render the application invalid7 and a fresh application would need to be made.

Thus the Memorandum to the Act states:

"Admission documents should be carefully scrutinised as soon as the patient has been admitted, or, if he is already in hospital, as soon as the documents are received. The managers of the hospital should nominate an officer to undertake this task."'8

The revised Code states that in addition to an "administrative" scrutiny of the documentation to detect errors on the forms, the Hospital Managers should also arrange for the medical recommendations to be medically scrutinised, to ensure that they show sufficient legal grounds for detention9. The Hospital Managers may delegate the scrutiny and rectification of the admission documents10. Thus the "administrative" scrutiny is usually carried out by the "Mental Health Act Administrator" while one of the consultant psychiatrists will scrutinise the medical recommendations.

Providing information for patients and relatives

Hospital Managers are required under section 132 to "take such steps as are practicable to ensure that the patient understands" information concerning the Act. Such information, which should be given orally and in writing, includes11:

The section under which the patient is detained and the effect of that section

The right to apply to a Mental Health Review Tribunal

The powers of the doctor in charge of the patient ("the responsible medical officer" - 'RMO'), the hospital managers and the nearest relative to discharge the patient

The compulsory treatment provisions under the Act

The role of the Mental Health Act Commission, the right to see the Commission when they visit the hospital and the right to complain to the Commission

Unless the patient objects, this information should also be given to the person who is deemed, under the Act, to be the patient's "nearest relative"12. In addition, the Act states that the nearest relative should, subject to the patient's consent and the nearest relative wishing to receive such information, be given 7 days notice that the patient is to be discharged from hospital13.

The chapter in the revised Code on the provision of information to detained patients remains substantially unchanged. However, one change is that the revised Code adds:

"It would be good practice, if the patient agrees, for the nearest relative to be provided with details of any care the patient will be receiving once discharged from detention in hospital."14

In order for Hospital Managers to meet their statutory duty to provide information, the revised Code states that they should ensure that:

"a. the correct information is given to the patient

b. the information is given in a suitable manner and at a suitable time and in accordance with the requirements of the law;

c. the member of staff who is to give the information has received sufficient training and guidance and is identified in relation to each detained patient

d. a record is kept of the information given, including how, when, where and by whom it was given;

e. a regular check is made that information has been properly given to each detained patient, and understood by him or her."15

Referring patients to Mental Health Review Tribunals

Patients who are detained under the Act are entitled to apply to the Mental Health Review Tribunal, an independent tribunal, which consists of a lawyer, a doctor and a "lay person", for instance a social worker which will consider whether the patient should continue to be detained under the Act16.

However, section 68 of the Act requires Hospital Managers to refer patients to Mental Health Review Tribunals where the patient has not exercised this right. The revised Code explains when this duty arises:

"& Section 68 requires the Hospital Managers to refer a patient's case to the Tribunal:

i. when six months have elapsed since the patient was admitted under the section 3 or transferred from guardianship under section 19 if the patient has not applied for a Tribunal during the first six months (this does not apply to patients admitted under a hospital order or transferred from prison to hospital17); and

ii. at the time when the patient's detention is renewed if he or she has not then had a Tribunal review for three years or more; this applies also to unrestricted patients admitted under a hospital order or prison transfer direction.

The reference should be made within one week of the patient's detention being renewed."18

The Hospital Managers' Power of Discharge

Section 23 of the Act provides that the Hospital Managers may discharge patients from hospital19. One commentator has noted:

"The existence of the power of discharge by the managers has been generally taken to imply the responsibility to consider exercising that continuously available power, a responsibility which arises either on renewal [of the detention], or on formal application by the patient to the managers for discharge. A patient can apply to the managers as often as he or she likes during any period of detention."20

However the revised Code makes significant changes to the operation of Hospital Managers' review function.

Applying to the Hospital Managers under the Revised Code

Whereas the current Code states that the Hospital Managers should undertake a review at the patient's request (unless a review has recently been held in which case consideration should be given as to whether the patient's condition has changed since the last review)21, the revised Code is more restrictive.

Although stating that the Hospital Managers may review a patient's detention at any time at their discretion, the only circumstances in which the revised Code requires a review is where the RMO submits a report seeking the renewal of the patient's detention. The revised Code only asks Hospital Managers to "consider" holding a review where the patient has requested a review or where the RMO makes a report barring the nearest relative from discharging the patient22.

Thus practitioners advising patients who wish the Hospital Managers to review their detention will need to consider when to make such an application and if the Hospital Managers refuse to hold a review, should seek their reasons for this decision.

Exercising the Power to Discharge

Whereas individuals employed by the NHS Trust or mental nursing home can carry out some of the Hospital Managers' duties, such as the scrutiny of the admission documents, the decision to discharge cannot be delegated to employees. However, the Act provides that three or more members of a sub-committee of the Hospital Managers can undertake these duties23.

Given that the NHS Trust will be responsible for the performance of the Hospital Managers duties in considering whether patients should be discharged, the revised Code suggests that NHS Trusts should, if possible, ensure that the panel to set up to review the detention of patients ("the review panel") includes a non-executive member of the Trust Board. For nursing homes, the revised Code states that it is desirable for the review panel to include people who are neither on the staff of the home nor have a financial interest24.

The revised Code also stresses the need to ensure that those appointed to the review panel are properly informed and experienced and receive suitable training25.

The Power to Discharge

Although they may discharge a patient whether or not the RMO agrees, it is rare for the Hospital Managers to do so. A survey carried out in 1995 of seven psychiatry services and three specialist units found that only 5% of patients who requested a review were discharged against medical advice26. Nonetheless, the power of the Hospital Managers to discharge has caused controversy and in September 1996, the then Secretary of State for Health announced that he intended to remove this power as soon as there was sufficient legislative time.

Although no steps to amend the Act by removing the power of Hospital Managers to discharge patients from hospital have as yet been made, the revised Code introduces extensive guidance on the practice and procedures to be adopted by Hospital Managers in exercising this power.

Practice and Procedures for the Hospital Managers' Review

The revised Code points out that legislation does not define either the criteria or the procedure for reviewing a patient's detention but expects that the review panels:

"& must satisfy the fundamental legal requirements of fairness, reasonableness and lawfulness:

a. they must adopt and apply a procedure which is fair and reasonable

b. they must not make irrational decisions, that is decisions which no body of Hospital Managers, properly managing themselves as to the law and on the available information, could have made; and

c. They must not act unlawfully, that is, contrary to the provisions of the Act, any other legislation and any applicable regulations."27

The revised Code suggests that when assessing whether the grounds for admission or continued detention are met:

"& the review panel should consider the following questions in the order stated:

Is the patient suffering from mental disorder?

If so, is the disorder of a nature or degree which makes treatment in a hospital appropriate?

Is detention in hospital still necessary in the interests of the patient's health or safety, or for the protection of other people?

If the panel is satisfied from the evidence presented to them that the answer to any of these questions is "no", the patient should be discharged."28

The revised Code makes a distinction between "contested" reviews, where the patient or nearest relative will be seeking discharge from hospital and "uncontested" renewals where the patient does not object to the renewal of the detention. For "uncontested" renewals the revised Code states that the review panel should meet to consider the papers and interview the patient and the patient's key worker. For, "contested" reviews, the revised Code suggests that the procedure for the review panel should include the following key points:

"The patient should be given a full opportunity, and any necessary help, to explain why he or she wishes to be discharged

The patient should be allowed to be accompanied by a friend or representative of his or her own choosing to help in putting his or her point of view to the panel

The RMO and other professionals should be asked to give their views on:

whether the patient's continued detention is justified; and

the factors on which those views are based

The patient and other parties to the review should, if the patient wishes it, be able to hear each other's statements to the panel and to put questions to each other. However, the patient should always be offered the opportunity of speaking to the panel alone."29

The revised Code stresses the need to obtain detailed information on the patient's treatment and care and details of any future plans, pointing out that the main source of such information will be the Care Programme Approach documentation or care plan30. It is also suggested that written reports be obtained in advance of the review panel hearing in addition to the patients nearest or most concerned relative and any informal carer should be informed of the review, subject to the patient's consent. The revised Code adds:

"Relatives and carers may be invited to put their views to the panel in person. If the patient objects to this a suitable member of the professional care team should be asked to include the relatives' and/or carer's views in his or her report."31

The need for the review panel to consider the arrangements for the patient's after-care is stressed:

"The presence or absence of adequate community care arrangements may be critical in deciding whether continued detention is necessary in the interests of the patient's health or safety or for the protection of others32.

However, the revised Code adds:

If the panel conclude that the patient ought to be discharged but arrangements for after-care need to be made, they may adjourn the panel, for a brief period, to enable a full CPA/care planning meeting to take place33.

The suggestion that Hospital Managers can defer the hearing when they consider that the patient ought to be discharged is worrying. While the revised Code states that the adjournment should be "for a brief period", it is not clear how long the adjournment could last. Potentially this could mean that a patient continues to be detained despite the fact that the criteria for detention no longer apply.

In such circumstances practitioners should question the basis for the continued detention and remind the Hospital Managers of their duty to ensure that patients are only detained in accordance the provisions of the Act.

In order to avoid such situations, practitioners should, wherever possible, ensure that arrangements for the patient's discharge are in place prior to the review panel hearing. The revised Code stresses the need to undertake such steps, stating that following the case of R v Ealing District Health Authority, ex parte Fox34health authorities and local social service authorities must take reasonable steps to identify appropriate after-care facilities for patients before they are discharged from hospital:

"In view of this, some discussion of after-care needs, including social services and other relevant professionals and agencies, should take place before a patient has a Mental Health Review Tribunal or managers" hearing so that suitable after-care arrangements can be implemented in the event of his or her being discharged.35

Camilla Parker. The author is a Solicitor and Freelance Consultant