Who is responsible for s117 aftercare services under the Mental Health Act 1983?
Determining which local authority is responsible for aftercare services under s117 of the Mental Health Act 1983 is often fraught with arguments regarding ‘ordinary residence’ and the circumstances in which someone is discharged from detention in hospital. Recently, the Supreme Court has given a judgment in R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care  UKSC 31 which provides some welcome clarity.
Background of the case
JG was ordinarily resident in Worcestershire, and was detained under Section 3 of the MHA 1983. JG lacked capacity to decide where to live upon being discharged, and it was considered to be in her best interests to reside in Swindon. Whilst in Swindon, JG continued to be provided with aftercare services by Worcestershire in accordance with Section 117(3) of the MHA 1983 as JG was “ordinarily resident” in Worcestershire before her first detention.
Section 117 (3) provides:
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 —
- if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident
- 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
- 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.
In June 2015, due to deteriorating mental health, JG was detained again under Section 3 for treatment in a hospital in Swindon. When JG was discharged from this second detention, a dispute arose between Worcestershire and Swindon as to which local authority was responsible for providing JG with aftercare services. The dispute was referred to the Secretary of State for Health and Social Care who decided that Worcestershire was responsible as JG was “ordinarily resident” in Worcestershire, pursuant to Section 117(3) MHA 1983, on the basis that Worcestershire had arranged JG’s care in Swindon. The Secretary of State relied on the approach in R (Cornwall CC) v Secretary of State for Health  AC 137. In this case, ordinary residence was defined by reference to fiscal and administrative considerations regardless of physical presence. Worcestershire sought judicial review of this decision.
At first instance, Linden J held that Swindon was responsible as JG was ordinarily resident in Swindon immediately before her second detention. He rejected the Secretary of State’s argument that Cornwall was the correct approach to determine ordinary residence as this case was concerned with different statutes.
The Court of Appeal overturned this decision holding that once a duty under Section 117 had arisen, it only ended when the local authority decided that aftercare services were no longer required. No such decision was taken by Worcestershire, pursuant to Section 117(2) MHA 1983 and, as such, the S117 duty remained with them. Worcestershire appealed to the Supreme Court.
The Supreme Court Judgment
Worcestershire’s main argument was that its duty to provide aftercare services for JG under Section 117 ended upon her second discharge. Its alternative argument was that its duty ended at the start of her second detention. If either argument were correct, it followed that Swindon, and not Worcestershire, had a duty to provide aftercare services for JG after the second discharge, on the basis that, as the courts below held, JG was ordinarily resident in Swindon immediately before her second detention.
The Secretary of State disputed this reasoning and continued to rely on the case of Cornwall and submitted that JG was “ordinarily resident” in Worcestershire. The Supreme Court also noted that “at no time” did Worcestershire relinquish its duty, and make a decision that JG was no longer in need of aftercare services, pursuant to Section 117(2) MHA 1983.
Worcestershire further submitted that its own duty must be taken to have ended when Swindon’s duty arose upon the second discharge.
The Supreme Court held that it could not be Parliament’s intention that two parallel duties owed by different local authorities could exist at the same time. It should not have to be determined which duty should trump the other.
It is important to note Section 117(1) of the MHA 1983, which provides:
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.
As a matter of statutory interpretation, the Supreme Court held that when a person is detained (again) as was the situation in JG’s case, they no longer “cease to be detained” and therefore Section 117 (1) cannot apply, and aftercare cannot be provided. Therefore, when JG had been detained for the second time, Worcestershire’s duty automatically ended, and a fresh duty arose on the second discharge.
The final question for the Supreme Court was where JG was “ordinarily resident” immediately before her second detention. The Court distinguished the Cornwall case which involved the transition from care being provided under the Children Act 1989 to the Care Act 2014. Section 39(1) of the Care Act 2014 provides that an individual living in accommodation provided under the 2014 Act is to be treated “for the purposes of this part as ordinarily resident in the area in which the adult was ordinarily resident immediately before the adult began to live in” that accommodation.
The Supreme Court held, “We do not accept that Section 117(3) of the 1983 Act is functionally equivalent to the deeming or disregarding provisions in the other statutes”, such as the Care Act 2014. The Supreme Court held, “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”.
The Court recognised that JG lacked capacity to decide where to live upon her first discharge and a decision was made in her best interests to live in Swindon. In accordance with the case of Ex p Shah  2 AC 309, it was deemed that the decision to live in Swindon was adopted “voluntarily”, and for “a settled purpose”. The Court held therefore, that JG was ordinarily resident in Swindon immediately before her second detention.
The Supreme Court’s decision does bring welcome clarity regarding responsibility for funding when a patient is re-detained under Section 3 of the MHA 1983, and on the meaning of ordinary residence. However, it is worth noting that clause 39(3) of the draft Mental Health Bill proposes that relevant provisions under the Care Act 2014 are to apply when determining ordinary residence under Section 117 (3) MHA 1983. This could mean revisiting what constitutes ordinary residence under Section 117 in the future.
If you have any questions in relation to s117 aftercare, please do not hesitate to contact one of our Court of Protection Health and Welfare solicitors or get in touch on 020 8492 2290.