SR, R (on the application of) v Huntercombe Maidenhead Hospital & Ors

Hospital managers exercising the discharge power under section 23 of the Mental Health Act 1983 have a wide discretion. Overturning a responsible medical officer’s report under section 25 is a strong pointer towards discharge, but it does not create an inflexible rule requiring discharge in every case. Managers must consider whether their residual discretion should nevertheless be exercised to continue detention.

A decision to reject a clinical assessment of dangerousness may be irrational where the evidence overwhelmingly supports it. The court may also consider the absence of adequate after-care arrangements when assessing the safety and legality of proposed discharge. Managers cannot make discharge conditional on an after-care package, but may adjourn briefly to allow proper arrangements to be prepared.

The Official Solicitor, acting as litigation friend for a detained 15-year-old patient, challenged the decision of hospital managers made on 10 August 2005 to discharge her from detention under section 3 of the Mental Health Act 1983. The responsible medical officer had issued a section 25 report stating that, if discharged, the patient would be likely to act dangerously towards herself or others.

The managers concluded that the statutory conditions for detention remained satisfied but rejected the finding of dangerousness and deferred discharge briefly to permit an after-care package to be prepared. The central issues were whether the managers had fettered their discretion, acted irrationally, and lawfully addressed after-care.

1. Challenge allowed. The managers’ decision was unlawful. The court granted a declaration to that effect and ordered a freshly constituted managers’ hearing to reconsider the nearest relative’s application for discharge.
2. Section 23 of the Mental Health Act 1983 gives hospital managers a wide discretion. The fact that managers reject the responsible medical officer’s section 25 report is a strong pointer towards discharge, as explained in R v Riverside Mental Health Trust ex p Huzzey [1998] 43 BLMR 167. It is not, however, an inflexible rule. The managers erred by treating rejection of dangerousness as automatically requiring discharge and failed to consider their residual discretion.
3. The managers’ conclusion that the patient was not likely to act dangerously was irrational. The evidence of recent violence and aggression was strong. The patient’s conduct in hospital, the limited opportunity for violence outside hospital, and the absence of identified after-care arrangements all supported the responsible medical officer’s assessment. No reasonable body of managers could have disagreed with it.
4. The managers did not unlawfully make discharge conditional on an after-care package. They had no power to impose such a condition, and responsibility for arranging after-care lay with the relevant public authorities. Nevertheless, where substantial after-care is required, the better course may be to adjourn for a defined period so that arrangements can be made, consistently with R (H) v The Ashworth Special Hospital Authority [2002] EWCA. Civ 923.
5. The managers’ inadequate reasons were a consequence of the substantive error and irrationality rather than a separate ground. The court made no order for costs, all parties being publicly funded bodies.