Professor Richard Jones examines the recent Supreme Court decision on responsibility for section 117 after-care services.
In R. (on the application of Worcestershire C.C.) v Secretary of State for Health and Social Care  UKSC 31, a patient was detained in the area of Local Authority A under section 3 and that authority accepted responsibility for providing her with after-care services under s.117 of the Mental Health Act on her discharge. The patient was then placed by Local Authority A in a residential placement in the area of Local Authority B and the period of detention came to an end.
The patient was subsequently detained under s.3 in the area of Local Authority B. She was eventually discharged from the s.3 and the hospital and she again received services provided under s.117. Local Authority A did not at any point take a decision under subs. (2) that the patient was no longer in need of after-care services. The question before the court was which of Local Authority A or Local Authority B was responsible for providing the patient with s117 services after her discharge from her second period of detention.
The Supreme Court held that Local Authority A’s duty to provide after-care services ended upon the patient’s second detention under a qualifying section. The Court said that this interpretation “is grounded in the language and purpose of section 117” in that:
- (i) upon a person’s second detention, he/she is no longer a person who has “ceased to be detained” (see subs. (1)) but is a person who is detained and is in hospital;
- (ii) it is implicit in the concept of “after-care” that the duty does not apply to people who are currently detained and receiving treatment in hospital; and
- (iii) the purpose of after-care, to reduce the risk of readmission, makes no sense in the context of a person who has already been readmitted to hospital.
Upon the patient’s second discharge a new duty to provide after-care services arose. Which local authority owed that duty depended upon where the patient was “ordinarily resident” immediately before the second detention. The Court held that although the patient lacked the mental capacity to decide where to live, the decision to live in a residential placement in Local Authority B was still made voluntarily as it was the result of a choice made by those with the power to make decisions on her behalf. Further, her residence in the residential placement was also adopted for settled purposes. As the term “ordinarily resident” in this provision should be given its usual meaning, it followed that immediately before the second detention the patient was ordinarily resident in the area of Local Authority B.
Comment on section 117 of the Mental Health Act
It should be noted that there will be cases in which a patient who has been granted short-term leave of absence from hospital under s.17 does not “cease to be detained” and “leave hospital” within the meaning of s.117(1) and is therefore not eligible for aftercare under this section: see R. (on the application of CXF) v Central Bedfordshire Council NHS North Norfolk Clinical Commissioning Group  EWCA Civ2852.