South Staffordshire and Shropshire Healthcare NHS Foundation Trust & Anor v The Hospital Managers of St George's Hospital & Anor

A hospital managers’ panel exercising delegated discharge powers under the Mental Health Act 1983 is sufficiently independent of the NHS foundation trust to permit the trust to seek judicial review of its decision. Such challenges will require exceptional circumstances.

A tribunal’s earlier refusal to discharge is not a mandatory relevant consideration for the panel. The panel has a separate statutory power and may decide what weight, if any, to give the tribunal’s decision. A discharge decision is unlawful only if it falls outside the range of reasonable decisions or fails to give legally adequate reasons. Brief reasons on the prescribed form may suffice where the panel has considered the evidence and explained its conclusion.

The claimants sought judicial review of a panel’s decision under section 23 of the Mental Health Act 1983 to discharge AU from detention. The panel had been appointed by the first claimant, an NHS foundation trust, and exercised delegated powers. The second claimant was AU’s former responsible clinician.

One month earlier, the First-tier Tribunal had refused AU’s application for discharge under section 72. The claimants argued that the panel had failed to take the tribunal’s decision and the clinical evidence into account, and that its reasons were irrational. The defendant and interested party challenged the claimants’ capacity, standing and the availability of an alternative remedy.

1. Capacity and standing. The trust had a sufficient interest, and its capacity to sue depended on whether the panel was legally separate from it. Section 23(6) required panel members to be neither executive directors nor employees of the trust. The panel was therefore an independent decision-making entity, sufficiently separate to enable the trust to challenge its decision. The second claimant, who was no longer AU’s responsible clinician, lacked a sufficient interest.
2. Alternative remedy. Re-sectioning AU under section 3 was not a suitable alternative remedy. It could undermine the panel system. The principle in R (Von Brandenburg) v East London and the City Mental Health NHS Trust [2003] UKHL 58, [2004] 2 AC 280 applied by analogy: a subsequent application for detention could not lawfully proceed without materially different information known in good faith to place a significantly different complexion on the case.
3. Relevant considerations. The panel’s statutory power under section 23 was separate from the tribunal’s power under section 72. Neither the Act nor the Code of Practice made a tribunal’s refusal to discharge a mandatory consideration. The panel was entitled to decide whether to take that decision into account and what weight to give it. It was not required to engage with the tribunal’s reasoning.
4. Reasons and rationality. Because the duty to give reasons was common-law, not statutory, later evidence from the panel members was admissible but had to be treated cautiously. It could not be accepted where inconsistent with the contemporaneous reasons. The panel’s standard-form reasons adequately showed that it had considered the risk to AU’s parents and balanced it against the risks of continued detention. Its decision was plainly within the range of reasonable decisions open to it, even though another panel might have reached a different conclusion.
5. The judicial review was dismissed.

Not stated in the judgment.