Which local authority must provide s117 duty after-care services after someone has been detained and discharged from hospital under the Mental Health Act 1983?

Factual Summary

JG had treatment resistant schizoaffective disorder. JG was ordinarily resident in Worcestershire and was detained under s3 Mental Health Act 1983 (MHA 1983) for the first time. She lacked capacity to decide where to live upon discharge and a decision was made on her behalf to live in the area of Swindon Borough Council (Swindon) where she continued to be provided with after-care services by Worcestershire including accommodation in a care home. She was then detained for a second time under s3 of the MHA 1983 whilst still living in Swindon. She was discharged from hospital.

It was at this point that Worcestershire and Swindon disagreed as to who was required to provide after-care services to JG in circumstances where she resided in Swindon immediately before her 2nd detention.

The Court of Appeal overturned a decision of the High Court, and held that Worcestershire continued to owe the duty, as pursuant to s117 (2) MHA 1983, the duty continues until a decision is taken that the person concerned is no longer in need of after-care services. No such decision was taken and therefore Worcestershire’s duty continued despite JG being ordinarily resident in Swindon at the relevant time.

The Supreme Court had to confront the question of which local authority had the after-care duty following subsequent detentions under relevant provisions of the MHA 1983 as well as the meaning of ‘ordinary residence’ in this context.
 

Legal Framework and Principles

S117 MHA 1983 places a duty on health bodies and local social services authorities to provide aftercare for persons who have left hospital following detention for treatment for mental disorder under the MHA 1983 (as specified under s117(1)). Aftercare services can include the provision of accommodation.

S117(1) provides [emphasis added]:

This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.

S117 (2) provides [emphasis added]:

It shall be the duty of the clinical commissioning group or Local Health Board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the clinical commissioning group or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services.

S117 (3) provides [emphasis added]:

3) In this section 'the clinical commissioning group or Local Health Board' means the clinical commissioning group or Local Health Board, and 'the local social services authority' means the local social services authority —
(a) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident

(b) if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or

(c) in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.

…..

S117(6) provides [emphasis added]:

(6) In this section, 'after-care services', in relation to a person, means services which have both of the following purposes —

(a) meeting a need arising from or related to the person's mental disorder; and

(b) reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).

The Decision of the Supreme Court

It was common ground that the words ‘immediately before being detained’ under s117 (3) refer to the most recent period of detention and that it could not be parliament’s intention that two parallel duties owed by different Local Authorities could exist at the same time.

On this basis, firstly, the court decided that the s117 duty ends when a person is detained in hospital under s3 (or other provision as specified under s117 (1)). Therefore, when JG had been detained for the 2nd time, Worcestershire’s duty automatically ended, and a fresh duty arose on the second discharge.

In summary, the court reasoned that when a person is detained, they no longer ‘cease to be detained’ and therefore s117 (1) does not apply, and also it cannot be said that ‘after-care’ is provided where a person is readmitted to hospital considering the language of s117 (6). It was a matter of statutory interpretation. Practical considerations were not relevant, and the court did not have to determine why one duty should ‘oust’ the other.

Secondly, the court had to determine where JG was ordinarily resident before the second detention to identify which local authority was responsible. Was it Swindon- where JG was physically living- or was it in Worcestershire, given that they were continuing to provide JG with accommodation and after-care services, albeit in Swindon?

The Secretary of State argued that ordinary residence should be determined by reference to the local authority who were performing the s117 duty pursuant to the principle in R (Cornwall County Council) v Secretary of State for Health [2015] UKSC 46, [2016] AC 137. In that case, ordinary residence was defined by reference to fiscal and administrative considerations and therefore lies with the local authority arranging the accommodation regardless of where it is located. This was clear from the statutory regime.

The Court distinguished Cornwall and in so doing, relied, in part, on s39(4) of the Care Act 2014 which determines where a person is ordinarily resident for the purpose of the Care Act 2014 when being provided with s117 accommodation. The area in which a person is ordinarily resident for the purpose of s117 does not always coincide with the area in which they are treated as ordinarily resident for the purpose of the 2014 Act. Because the ordinary residence rules in the Care Act 2014 and s117 are not consistent, s39(4) Care Act 2014 is required to remedy this.

This, the Supreme Court held, demonstrates that ‘ordinary residence’ for the purpose of s117 cannot be defined by reference to the statute. See at 71:

“Unlike those provisions, section 117(3) does not manifest any intention that the term “ordinarily resident” should be given anything other than its usual meaning. Section 117(3) does not state or imply that providing residential accommodation for an individual in the area of another local authority will not, or is not to be taken to, change the individual’s place of ordinary residence.”

 S117 is ‘free-standing’ following the decision in R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] EWCA Civ 77 and the court emphasised the independence of s117 from other care legislation.

Applying this analysis to the facts, the court took into account that at the relevant time, JG lacked capacity to decide where to live so the decision was made on her behalf. The court considered - by reference to the usual common law rules under Ex p Shah [1983] 2 AC 309 - that the decision to live in Swindon was adopted voluntarily and it was for a settled purpose. Therefore, she was ordinarily resident in Swindon.

It follows that it will need to be determined where the individual was ordinarily resident, on the usual meaning of those words, prior to each qualifying detention in order to identify the local authority responsible for providing s117 MHA after-care services.

Practical issues and Implications

The court identified that the real issue is who pays for the after-care. There was no evidence of practical difficulties (for example in liaison and cooperation between different agencies and bodies) if there was an interruption in continuity of care due to another local authority becoming responsible under s117. Therefore, the outcome should not change the practicalities of how the care is provided.

It is worth noting that the draft Mental Health Bill at clause 39 proposes that relevant sections under the Care Act 2014 are to apply when determining ordinary residence under s117 (3) MHA 1983 and this may require a revisitation of the above principles.