How can the nearest relative request discharge?

The Court of Appeal yesterday handed down judgment in the case of K v The Hospital Managers of the Kingswood Centre.

The case concerns K, a patient detained under Section 3 of the Mental Health Act 1983, and the service of his mother’s written notice as nearest relative to discharge K from detention under the Act.

Section 23 Mental Health Act discharge — the prescribed methods for service

Section 23 provides that a detained patient’s nearest relative may discharge that patient from detention under the Act by giving not less than 72 hours notice in writing to the hospital managers. Regulations prescribe the form in which notice must be served. There are three prescribed methods for service, namely:

1. Delivery of the Notice at that hospital to an officer of the managers authorised by the managers to receive it; or
2. Sending it by pre-paid post to those managers at the hospital; or
3. Delivering it using an internal mail system operated by the managers upon whom it is to be served, if those managers agree.

The regulations go on to provide that where service is affected by pre-paid post, the notice to discharge is deemed to have been delivered two working days later where sent by first class post, and four working days where the notice was sent by second class post, unless the hospital can show that it was not actually received until later or at all.

The impact of service method on the 72-hour clock in Section 23 of the Mental Health Act

The facts of this case are that K’s mother and nearest relative for the purpose of the Act sought, through her solicitor, to affect service of a Notice of Discharge. On Friday 6 June the mother’s solicitors faxed the notice requesting discharge under cover of a letter marked “private and confidential”, and for the attention of the “Mental Health Act Administrator”. The letter was only sent by fax and was received by the receptionist. As the Mental Health Act Administrator worked part-time Tuesday to Thursday, the letter was placed in the Mental Health Act Administrator’s pigeon-hole for collection when she was next in work, which was Tuesday 10 June.

The Act provides that where a Notice to Discharge is duly served, a 72-hour clock starts running from the point of service. If within this 72 hour period the patient’s responsible clinician issues a barring order on the basis that if discharged the patient would be likely to act in a manner dangerous to himself, the Notice of Discharge shall be of no effect.

The letter and accompanying Notice of Discharge was first seen by the Mental Health Act Administrator upon her return to work on Tuesday 10 June at 9am. The Notice to Discharge was escalated to the patient’s responsible clinician, who issued a barring order on 11 June.

The claimant issued proceedings in the High Court, arguing that the 72-hour clock started to run from the point the letter and Notice of Discharged were received on the hospital fax machine. They, therefore, argued that the 72-hour period expired on Monday 9 June, and that the patient was in effect unlawfully detained thereafter.

The Respondent Mental Health Trust represented by this firm, argued that the Notice became effective at the point it was received by the Mental Health Act Administrator, who was one of a class of people authorised by the hospital to receive and action such notices. The Trust argued that therefore the Barring Order was issued within time and the Notice to Discharge was of no effect.

The balance of power in Section 23 Mental Health Act discharge cases

The matter was heard in the first instance by Mr Justice Burton, who agreed with the Trust that the notice became effective at the point it was actually received by the person authorised to deal with it in accordance with the first of the prescribed regulations. The judge was persuaded by the case of re GK, in which the court found on that occasion that the purpose of the prescriptive regulations was to strike the balance between ensuring that the nearest relative can exercise their power of discharge on the one hand, and on the other, to ensure that the Notice actually came to the attention of the authorised person so that the interests of the patient could ultimately be considered.

The Court of Appeal in giving judgment today has upheld the ruling of Mr Justice Burton and dismissed the claimant’s appeal, confirming that where the notice is not sent by post it becomes effective only at the point it is actually received by the authorised person and the risk of delay in receipt remains with the nearest relative.

Conversely and where the notice is sent by prepaid post, the risk of it not being picked up is transferred to the Hospital Managers.