The duty to provide after-care under section 117 of the Mental Health Act 1983 again

Abstract

In December 2021 the Court of Appeal (Civil Division) published its ruling in Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957, a case about a dispute between two local authorities regarding which of them should bear the duty to provide after-care for a patient (service user) following her discharge from her second detention under section 3 of the Mental Health Act 1983. The primary issue in the case was where she was ordinarily resident at the time of her second detention under s 3 of the Mental Health Act 1983. This paper reviews the case, surveys the evolution of the duty to provide after-care and comments on specific aspects of the Court of Appeal’s decision.

Keywords

After-care mental health s 117 Mental Health Act 1983 ordinary residence s 117(2) Mental Health Act 1983 s 3 Mental Health Act 1983

Introduction

After-care of a mental patient may be said to be the care provided for the patient in the community after discharge from hospital. It is a sine qua non in mental health care in that it helps to reduce recurrence of mental disorder and saves public funds. On 22 December 2021 the Court of Appeal (Civil Division) published its ruling in Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957, where two local authorities disputed their liability to pay for after-care for a patient (service user) following her discharge from her second detention under section 3 of the Mental Health Act 1983 (“MHA 1983”). The primary issue in the case was where she was ordinarily resident at the time of her second detention under s 3 of the MHA 1983. This paper reviews the case, surveys the evolution of the duty to provide after-care and comments on specific aspects of the Court of Appeal’s decision.

Facts

The patient (“JG”), suffering from a schizo-affective disorder, was detained under s 3, MHA 1983 at Newtown Hospital on 20 March 2014 when ordinarily resident in Worcestershire. On 12 July 2014 she was discharged to a care home in Swindon in accordance with s 117, MHA 1983 which was funded by Worcestershire. She was moved to a second home in Swindon on 7 February 2015 which was also funded by Worcestershire. However, she was later admitted to a hospital in Swindon on 27 May 2015 under s 2, MHA 1983, which was converted to s 3, MHA 1983 on 23 June 2015. Worcestershire issued, on 4 August 2015, a notice of termination to the care home in Swindon, where she was staying before her second period of detention. The dispute concerned where JG was ordinarily resident just before her second detention under s 3, MHA 1983 in June 2015, and whether it was Worcestershire or Swindon that should pay for her after-care services when she was eventually discharged on 9 August 2017.

The judge at first instance held that (a) JG was ordinarily resident not in Worcestershire but in Swindon immediately before her second detention under ss 2 and 3, MHA 1983 because “ordinary residence”, if given its ordinary meaning (without being overlaid with notions of “fiscal and administrative convenience” or purposes), as the court did in R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council [2011] PTSR 1623 (“Hertfordshire”), pointed to that; and (b) the duty of Worcestershire to provide after-care for JG ceased by operation of law at the time JG was discharged from her second period of detention. This was because the responsibility for after-care services fell on the area in which JG was ordinarily resident when the decision to detain her was taken (i.e. Swindon).

Swindon appealed to the Court of Appeal on two grounds: (a) that the judge was wrong in concluding that JG was ordinarily resident in Swindon immediately before her second detention and (b) that the judge was wrong in ruling that Worcestershire’s duty to provide after-care ended by operation of law when JG was discharged at the end of her second period of detention.

Court of Appeal

Coulson LJ, in his leading judgment, ruled re ground one that the judge was right to conclude that JG was ordinarily resident in Swindon just before her second detention because of the ordinary meaning of “ordinarily resident”, as applied by the court in Hertfordshire (a case on s 117, MHA 1983 that was binding on the court in this case).

As regards ground two, Coulson LJ first noted that Worcestershire’s notice to the care home to stop supplying her with services was not a valid decision terminating their duty under s 117(2), as the first instance judge had found as a matter of fact. That notice was just a standard-form notice without explanation to the care home to stop providing after-care services for JG whereas s 117(2) clearly provides that the duty to provide after-care subsists until a decision is taken by the relevant medical/social care staff at the responsible authority that they are satisfied that the patient no longer needs after-care services. Therefore, Coulson LJ disagreed with the judge’s finding that the duty ended by operation of law on the discharge of JG when her second period of detention ended. Moreover, throughout the period of JG’s detention there would have been extensive planning by Worcestershire, the responsible authority. Therefore, if Worcestershire’s duty suddenly ended and a new duty was owed by another authority, that would have an adverse effect on continuity of care and be extremely unsatisfactory for JG. Therefore, the second ground of appeal was allowed. According to Coulson LJ, that was, on its own, sufficient to overturn the conclusions of the judge and to find Worcestershire responsible for providing after-care services for JG. The whole appeal was, thus, allowed.

Comment

This case highlights, inter alia, the duty to provide after-care for mentally disordered patients following their discharge from compulsory treatment in hospital. The evolution of after-care and some features of the Court of Appeal’s decision will now be looked at.

1. Evolution of the duty

In the nineteenth century county asylums were built under the County Asylums Act 1808 and the Lunatic Asylums and Pauper Lunatics Act 1845. They later became known as “mental hospitals” under the Mental Treatment Act 1930. Although there were mechanisms for discharging lunatics from asylums, there was no statutory provision for their care after their discharge. The nearest thing to after-care, as we know it today, was the fact that those patients were discharged into the care of their relatives or of some other responsible persons who had to promise to provide proper care for the patient concerned (see, e.g., s 79, Lunacy Act 1890).

However, s 6(3) of the Mental Treatment Act 1930 (under which “lunatics” were called “patients”) made provisions empowering local authorities to provide after-care for mental patients after their discharge from hospital. Then in 1957 the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency (1954–1957) recommended that health authorities should be made responsible for preventive services and all types of community care for patients who had undergone treatment in hospital and were ready to go back to the community. The Mental Health Act 1959 preserved the power of local authorities to provide after-care. Later, s 3 of the National Health Service Act 1977 imposed, on health authorities, general duties in relation to after-care in respect of mental health, etc., in the community.

Today the duty to provide after-care for mental patients upon their discharge from hospital is contained in s 117, MHA 1983.

2. Some aspects of the decision

The case was all about which authority should be responsible for the provision of after-care for a mental patient following their discharge from hospital. According to s 117, MHA 1983, that responsibility falls on the authority in whose area the patient was residing before admission to hospital. But the matter becomes complicated where the patient is discharged into an area different from the location of the hospital and then later gets re-admitted compulsorily into another hospital in a different area.

The first central issue was where JG was ordinarily resident immediately before her second period of detention. The Court of Appeal held that she was ordinarily resident in Swindon (not Worcestershire). The judge at first instance stated that the expression “ordinarily resident” must be given its everyday meaning. According to Coulson LJ ([2021] EWCA Civ 1957, at paras 60–61), if anyone had asked JG or her daughter in 2015 where JG lived, their answer would have been “Swindon” because:

“Swindon was the particular place of residence which had been adopted on behalf of JG, primarily because it was closer to her daughter. It was part of the regular order of her life. Moving to Swindon was expressly for the purpose of placing her in as settled a location as possible.”

The significance of “ordinarily resident” here is that, as already mentioned, the duty to provide after-care falls on the authority in whose area the patient was resident immediately before their detention in hospital for treatment. This will still be the position even if the patient is moved to another area, detained in hospital in that new area and then discharged from the hospital because the duty to provide after-care services is a continuing one.

The second central question was how the duty could be terminated. As pointed out by Coulson LJ, the duty could be terminated in accordance with s 117(2), MHA 1983, which clearly provides that the duty is to continue until such time as a decision is made by “the clinical commissioning group or Local Health Board and the local social services authority [that they are] are satisfied that the person concerned is no longer in need of such services”.

However, can the duty be terminated by operation of law? As already stated, the Court of Appeal held that the judge at first instance was wrong in concluding that the duty ended by operation of law when JG was discharged from her second detention. But a further comment on this seems apposite. To say that the duty can be terminated by operation of law is simply incorrect because s 117(2) is unequivocal and nothing in s 117 suggests the possibility of the duty ending by operation of law. We may contrast this with the right under s 18 of the MHA 1983 to retake patients who abscond from hospital. For example, if a patient, detained under s 3, MHA 1983 (as JG was) for six months initially, absconds from hospital on day one of their admission and stays absent for six months, they can no longer be retaken because their liability to be detained has expired (s 18(4), MHA 1983). That patient, therefore, becomes technically discharged, i.e. discharged by operation of law; the right to retake them has ended by operation of law and, so, they can be written off the hospital’s books. In contrast, the duty in s 117(2), MHA 1983 cannot come to an end by operation of law.

Conclusion

As can be seen so far, Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care shows the importance of mental health after-care (which benefits society as it helps to reduce recurrence of mental disorder) and the meaning of “ordinarily resident”. The significance of “ordinarily resident” here is that responsibility for providing after-care services falls on the local authority in whose area the patient concerned was ordinarily resident immediately before their detention in hospital. The case also makes it clear that the duty to provide after-care under s 117, MHA 1983 can be terminated in accordance with s 117(2), MHA 1983, but not by operation of law.