Desi McArd writes:
Since I wrote my article on the Court of Appeal decision, the Supreme Court have now had their say on the issue of s.117 Mental Health Act (MHA) and crucially, who pays.
In my previous previous article the Court of Appeal decided it was Worcestershire’s responsibility to provide aftercare as JG was ‘ordinarily resident’ in Worcestershire prior to her second detention in hospital under MHA.
S.117 MHA places a duty on health authorities and social services authorities to provide aftercare services for those who have left hospital following compulsory detention for treatment for mental disorder under the MHA.
The duty is placed on the authorities in whose area the person concerned was ‘ordinarily resident’ immediately before being detained (s.117(3)(a)).
The history of this case:-
March 2014 JG was detained s.3 MHA in Worcester (first detention). Worcestershire County Council were therefore under a duty to provide aftercare services on discharge, as JG was ordinarily resident in Worcester.
JG was then placed in a care home in a different area, namely Swindon, to be hear to family following discharge from s.3 MHA.
June 2015 JG again detained under s.3 MHA in Swindon (second detention).
Worcestershire and Swindon then disputed who was responsible for paying for her s.117 aftercare.
The battle lines were drawn with very significant costs at stake.
When JG was ready for discharge the dispute went to the Secretary of State to resolve. Initially, he decided in favour of Worcestershire, because the s.117 responsibility had shifted to Swindon since JG was ordinarily resident in Swindon immediately before the second detention. This was the test that had applied for some time.
Swindon challenged this interpretation and, on review, the Secretary of State reversed his decision finding that s.117 responsibility remained with Worcestershire because JG’s ordinary residence remained with Worcestershire despite the move to Swindon.
Worcestershire judicially reviewed the decision. High Court determined that the Secretary of State’s guidance was wrong and that Swindon are responsible.
The Court of Appeal disagreed with this and decided that Worcestershire were responsible because of JG’s need for aftercare ceased because she was detained in hospital, So she was therefore ‘no longer in need of such services’.
Worcestershire then lodged an application to appeal to the Supreme Court.
Worcestershire’s primary appeal was that their duty to provide aftercare services ended upon the second discharge i.e. when JG was discharged within Swindon.
Worcestershire’s alternative argument was that their responsibility ceased when JG was admitted on s.3 MHA in Swindon (second detention).
The Secretary State disputed that premise.
Worcestershire hadn’t taken the decision that JG was no longer ‘in need of aftercare services’ therefore the duty continued and as there could only be one duty at any one time, no new duty by any authority could arise.
The Supreme Court published its decision on 10th August 2023. https://www.supremecourt.uk/cases/docs/uksc-2022-0022-judgment.pdf
They concluded that following the second detention, Swindon and not Worcestershire, had a duty to provide aftercare services for JG under s.117 MHA.
The key phrase from the Supreme Court at paragraph 44 states…
‘Worcestershire’s alternative case is that the duty under section 117(2) to provide after-care services for an individual ends if the individual is compulsorily detained in hospital for treatment.
That individual is no longer a person who has ceased to be detained and has left hospital but rather a person who is detained and is in hospital.
The criteria set out in s. 117(1) are therefore not met.
When that period of detention ends and the individual leaves hospital, a new duty under section 117(2) will arise.
On this interpretation, therefore, there is never any possibility of concurrent or competing duties.
So, there is no need to try to explain why one duty should oust or prevail over another’.
The Supreme Court rejected the primary arguments of both parties but accepted the alternative case. By doing so they have sought to quash any ambiguity about responsibility.
Paragraph 49 states..
‘Upon such detention an individual therefore ceases to be a “person to whom this section applies (s.117MHA)”.
A new duty arises upon discharge.
The planning and preparation of community support and care are not classed as aftercare services. People who are detained are not in receipt of aftercare until they are no longer detained under MHA.
The Secretary of State also argued that the words ‘ordinarily resident’ do not bear their usual meaning but are subject to a special rule of law that, if the accommodation in which a person is living is provided by a local authority for the purpose of performing it’s statutory duty under s.117 MHA, then residence in that place should be disregarded in determining where he/she is ‘ordinarily resident’.
The Supreme Court rejected this argument stating that there is nothing in s.117 MHA to suggest that ‘ordinarily resident’ should be given anything other than it’s usual meaning.
‘Ordinary residence’ must be voluntarily adopted with a degree of settled purpose.
A best interests decision about moving to Swindon was made on JG’s behalf and the Supreme Court concluded this amounted to being adopted voluntarily as it was a choice (best interests) made on her behalf due to her incapacity.
Ordinarily resident was therefore then switched to to Swindon immediately prior to the second detention.
Authorities will welcome this judicial clarity as they have been left in limbo whilst these proceedings have been ongoing.
Ironically, after the contentious judicial journey we are now back to the point where we were at the beginning of it.