Hospital Managers have the power to review the legality of orders to maintain patients in compulsory care, and to discharge them from it under, s.23 of the Mental Health Act 1983 (MHA 1983). In this regard, the s.23 process bears some resemblance to the Mental Health Tribunal (MHT). Unlike the MHT, however, almost no statistical evidence, understanding of administrative practices or operations, exists in a centrally collated, publicly available form. There is a simple explanation for this. Unlike the MHT, which is a centrally administered system, the administration and operation of s.23 MHA 1983 is conducted, almost exclusively, at a local level by individual NHS trusts and independent hospitals, with little oversight from national administrative structures or regulators.

This gives rise to two issues. First, it is deeply troubling that we know almost nothing about how the power operates, and thus are very poorly positioned to assess it, or propose reforms. Secondly, there is a serious risk that its localised nature will give rise to a postcode lottery for the protection of liberty and the review of professional decision-making.

To begin to address this profound evidential deficit, and the possibility of a protection and review postcode lottery, Freedom of Information Act 2000 requests were sent to all Trusts in England and Wales which use the s.23 power. In broad terms the requests asked for (i) statistical information about the operation of s.23 (e.g. number of hearings, discharges, types of section); (ii) policies and pro-forma (e.g. differences between decision forms); (iii) equality and diversity, appointment, appraisal, and training information about the Hospital Mangers (e.g. demographic information, rates of remuneration, reappointment policies). The paper reports the initial findings of this study, considers their implications, and discusses next steps in view of the Report of the Independent Review of the Mental Health Act.