Paying the price of s.117 aftercare
Many local authorities have a duty to provide and fund various 'after-care services' to those who leave hospital after a period of being detained under section 3 of the Mental Health Act 1983 (the Act). The duty arises from section 117 of the Act and attaches to the authority in whose area the particular individual was "ordinarily resident" immediately before being detained.
However, as we see in practice, identifying which local authority bears the responsibility to fund - often very expensive - packages of after-care services can lead to disputes and is of huge significance for the sector, particularly in times of ever-strained budgets. This issue can be made more complex where an individual moves around, is subsequently re-detained under section 3 of the Act, and then becomes entitled to after care services again after discharge.
The Supreme Court has recently looked at this issue in a judgment handed down in the case of R (Worcestershire County Council) v SoS for Health and Social Care  UKSC 31. Charlotte Clayson, a Partner in our Dispute Resolution and Litigation team, looks at what it means for local authorities.
An individual, JG, had originally been ordinarily resident in Worcestershire when she was first detained, under section 3 of the Act, for treatment in hospital in Worcester ('the first detention'). Whilst JG was detained in hospital, discussions were held as to where JG might live once she had been discharged. JG was assessed as lacking capacity to make those decisions, and in consultation with family members, a decision was made that it would be in JG's best interests to move to Swindon to be closer to her daughter. JG was subsequently discharged from hospital and ceased to be detained under section 3 of the Act ('the first discharge').
Worcestershire County Council placed JG in a residential care home in Swindon. As JG had been ordinarily resident in Worcestershire prior to her detention, funding was met by Worcestershire County Council under section 117 of the Act.
However, JG's mental health deteriorated and she was subsequently detained under section 3 of the Act for the second time, this time at a hospital in Swindon ('the second detention'). Notice was served on the placement at the care home in Swindon. Some time later, JG ceased to be detained under section 3 of the Act and was subsequently discharged from hospital ('the second discharge').
A dispute arose as to which authority was liable to fund the necessary after-care services following JG's second discharge. Did liability remain with Worcestershire, who funded the placement in Swindon and had the original section 117 responsibility, or did the liability transfer to Swindon because JG was based there prior to the second detention under section 3 of the Act? The local authorities asked the Secretary of State for Health and Social Care (SoS) to determine the dispute under s.40(1) of the Care Act 2014.
What came next was series of decisions on liability which changed the position at almost every turn, and left local authorities seeking some clarity on the position:
- The SoS originally concluded that JG was ordinarily resident in Swindon prior to the second detention, and so Swindon became liable for after-care under section 117.
- Whilst this reflected the position in the published statutory guidance, upon a formal review of that decision, the SoS reversed the decision and determined that Worcestershire was in fact responsible, and its responsibility could only end when a decision had been made that JG was no longer in need of after care services (section 117(2)).
- Worcestershire brought proceedings against the SoS in the High Court to challenge that decision. The High Court reasoned that JG was ordinarily resident in Swindon immediately before the second detention so that, on the subsequent discharge, the section 117 duty was imposed on Swindon alone at that point.
- This decision, in turn, was challenged in the Court of Appeal, which determined that whilst JG was ordinarily resident in Swindon prior to the second detention, Worcestershire's original section 117 duty was still continuing and would continue until the relevant authorities had concluded otherwise under section 117(2). As no such decision had been taken, and as only one duty could be owed at any one time, Worcestershire's duty continued and no duty could therefore be owed by Swindon.
The case was appealed to the Supreme Court.
How and when can the s.117 duty come to an end?
It was common ground that, following the first discharge, the section 117 duty was owed by Worcestershire because JG had been ordinarily resident in Worcestershire immediately prior to be detained. It is also clear, under section 117(2) that the duty exists 'until such time as' the relevant authorities are 'satisfied that the person concerned is no longer in need of such services'. No such conclusion had been reached by the relevant authorities prior to JG's second detention, so the duty did not end by virtue of section 117(2).
The question for the court was whether that second detention, or discharge from the second detention, would also serve to extinguish the duty? Before the SoS decision in this case, it had been understood that any subsequent detention under section 3 of the Act would extinguish any earlier, pre-existing section 117 duty. However, the ping-pong of decisions since the SoS determination had cast doubt on this and caused considerable uncertainty for local authorities.
The Supreme Court considered the detail of the statutory language and concluded that the duty to provide after-care services must end when an individual is detained in hospital for treatment under section 3. In those circumstances, JG could no longer be a person who has 'ceased to be detained' (as provided by section 117(1)), but a person who has been detained and is in hospital. The Supreme Court considered that it was implicit that the concept of 'after-care' under section 117 could not apply to people who were detained and receiving treatment in hospital, but only to those who had left hospital. Likewise, the whole purpose of after-care was to reduce the risk of re-admission (s.117(6)(b)): risk of readmission cannot be reduced when that person has already been re-admitted.
On that basis, Worcestershire's duty to provide after-care services to JG under section 117 ended upon the second detention under section 3 of the Act. At that point, JG no longer fell within the ambit of section 117 as a person who had 'ceased to be detained'. Upon the second discharge, a new section 117 duty arose, and section 117 liability fell to the authority in whose area JG was ordinarily resident at that time.
Where had JG been ordinarily resident?
Both the High Court and the Court of Appeal had held that JG had been ordinarily resident in Swindon at the time of the second detention because she had been living in a care home in Swindon.
However the SoS sought to challenge this conclusion on the basis that whilst the care home was based in Swindon, it had been funded by Worcestershire under its statutory duty pursuant to section 117. It argued that in those circumstances, the words 'ordinarily resident' would not have their usual meaning. Instead a person would be 'ordinarily resident' in the area of the local authority which is providing the accommodation in discharging its statutory duty under section 117: in this case, Worcestershire.
The Supreme Court rejected this argument. There was nothing in the language of section 117 which suggested that 'ordinarily resident' should be given anything other than its usual meaning, based on the facts of where a person lives. JG was, accordingly, ordinarily resident in Swindon at the time of the second discharge.
On that basis, the Supreme Court unanimously found in favour of Worcestershire: following the second discharge, Swindon, not Worcestershire had a duty to provide s.117 after care services to JG.
What is the practical effect of this judgment?
Local authorities will welcome the much-needed clarity provided by the Worcestershire judgment. After significant period of confusion and uncertainty, the Supreme Court has now confirmed:
- The section 117 duty is extinguished upon any later readmission under section 3 of the Act;
- Once an individual ceases to be detained under section 3 of the Act, a new section 117 duty arises;
- That section 117 duty is owed by the authority in whose area the individual is ordinarily resident; and
- Ordinary residence takes on its usual, factual, meaning based on where that person had been living, regardless of which authority had been funding the after-care services.