Hospital managers and panel hearings.

South Staffordshire and Shropshire NHS Foundation Trust issued proceedings seeking judicial review of their own Hospital Managers at one of their sites – St George’s Hospital. The Managers had taken a decision as a panel to discharge a patient from detention, shortly after a Tribunal had confirmed that detention should continue. The Trust lost, with the judge finding that the Panel were entitled to make the decision they had to discharge the patient.

Background facts

The case related to a patient, U, detained in a low secure unit. He had a long history of bipolar disorder with various inpatient admissions, complicated by a personality disorder which had recently been diagnosed, but which the patient had already lived with for over 40 years. There had been a number of alleged incidents of violence when U had been living with his parents in the community, but only one (which had resulted in his most recent admission) following court proceedings could be substantiated.

A Tribunal (held over two separate hearings over two months) determined not to discharge the patient from detention on 10 March 2016 and that consideration of a CTO would be premature. The matter came before the Hospital Managers approximately one month later on 12 April 2016. The Hospital Managers decided to discharge the patient, finding that he could be managed in the community.

The Trust’s ground for judicially reviewing the decision of their own hospital managers were that:

a) the hospital managers failed to treat the earlier Tribunal decision as a relevant consideration and

b) their decision was irrational in light of the evidence available and the reasons given.

The Tribunal had previously concluded that the patient would not remain compliant with medication if discharged and thought that his PD inhibited his ability to engage with the community team/psychological therapy such that there would be a relapse. This then led to concern that he would be aggressive to his parents, being likely to act in a manner dangerous to them.

The evidence given to the Managers on the day indicated that the patient may be better suited to one on one therapy in the community (he found group work difficult); that the patient was aware of the risk of relapse related to non-compliance, and so would take his medication, and his parents (while accepting that U was “boisterous”) were very keen to have him back home living with them.

The Hospital Managers, between them, had 35 years’ experience of sitting on such panels. One of them had considered the Tribunal’s decision, but the other two, while aware of what it was had not read it before the panel hearing. The decision they made was set out on the standard form, provided to them by the Foundation Trust.

Judgment

The key points from the judgment are as follows:

Judicial Review

• The panel is sufficiently separate from and independent of the Trust to enable the Trust to bring a judicial review challenge to its decision.
• While noting that people may not be prepared to take on the responsibility of panel membership (in the event that their decisions are judicially reviewable) there were countervailing public interests such that the Trust ought to be able to bring a judicial review challenge to protect the public in circumstances where a Trust considers that a panel has made an unlawful decision.
• It will require quite exceptional circumstances for a Panel’s decision to be reviewable by the court. Unfortunately, no guidance on what would amount to quite exceptional circumstances was given, but it is clear that an occasion where the treating team simply disagrees with the decision to discharge taken by the panel is not sufficient to amount to those exceptional circumstances.
• Judicial Review is an appropriate remedy in those exceptional circumstances.

Tribunal decisions

• A Tribunal’s decision is not a relevant consideration such that a panel has to take it into account, although a panel may choose to do so.
• The 1983 Act does not specify the criteria to be used by an NHS Foundation Trust or its panel in considering discharge, although the essential criteria are those set out in section 3 of that Act.
• The Parliamentary intention to provide various avenues to patients to regain their liberty means that it is up to these separate decision makers to decide whether or not to take into account a decision of another and, if so, how much weight to give it.
• In this case, the panel was under no obligation whatsoever to engage with the Tribunal’s reasoning.

Reasons

• If the Trust wanted more detailed reasoning they should have made that clear in the design of the form they produced for its panels (the form the managers used did not have much room for recording reasons under each criteria).
• The Panel exhibited both experience and care in considering the case.
• The decision of the panel was clearly open to it on the evidence before it and it had given clear reasons for reaching it. It was patent on the form that the panel considered the risk the patient posed to his parents but balanced that against other factors.
• There is no way that it can be said that the Panel’s decision to discharge was beyond the range of reasonable decisions open to it.

Mr Justice Cranston concluded that this was a paradigm case where a panel had disagreed with the clinical team and discharged a patient where it considered the state’s compulsory power of detention could no longer be justified precisely as Parliament had contemplated could happen.

We acted for the Hospital Managers in this case. If you have any queries relating to this judgment please do not hesitate to contact us.