The Health and Social Care (Community Health and Standards) Act 2003 established the legislative framework for national health service foundation trusts (NHSFTs). In doing so, it amended section 23 of the Mental Health Act 1983 to provide that NHSFTs could delegate their power to discharge patients detained under the 1983 Act to three or more of their non-executive directors. NHS trusts, by contrast, may delegate to three or more people who are not employees of the trust if they are (non-executive) directors (or the chairman) of the trust or members of one of its committees or subcommittees. It is this last group of individuals who are commonly referred to as “associate hospital managers”.
The approach taken in the 2003 Act was the one considered appropriate at the time. However, the Government are now of the view that it would be better if NHSFTs had more flexibility to authorise people other than its non-executive directors to act on their behalf. It will therefore seek to amend the relevant primary legislation as soon as a suitable legislative opportunity arises.
In the interim, the obligation on NHSFTs to exercise their powers of discharge remains. Patients of NHSFT hospitals will therefore continue to be able to request the managers to consider their cases. Detained patients (in all hospitals) also have rights to apply to the mental health review tribunal, which is an independent judicial body with the power to discharge patients from liability to detention.