No change in the identity of local authority providing s.117 aftercare in cases of repeat detention

Mental health house

The Court of Appeal has ruled in Worcestershire CC v Secretary of State for Health and Social Care on the long running saga as to who is responsible for providing ‘section 117 aftercare services’ where there have been multiple (and successive) periods of detention.

The issue arose where a patient is detained in a hospital in area X, but is discharged to area Y and lives there, and is then re-detained. In these circumstances, which local authority and CCG must fund aftercare services following the second period of detention, pursuant to section 117 of the Mental Health Act 1983 (‘MHA’)? In the present case, the patient was detained in Worcestershire and accommodated in two different care homes in Swindon for aftercare. She was detained again in Swindon and the Court had to decide who paid for her aftercare.

The High Court held that a new duty to provide aftercare was triggered after each period of detention under section 3 of the MHA, as explained in a previous post. Therefore, it was Swindon Borough Council who had the duty to fund aftercare. Subsequently, the Secretary of State ceased making determinations pending this appeal, as explained in this post.

The Court of Appeal has now reversed the High Court decision. It found that, as a matter of interpretation, section 117(2) required an authority to provide aftercare services “until such time as” a decision was taken they were satisfied the person concerned was no longer in need of such services.

The Court considered it would be “unrealistic” to have an automatic change in the responsibility by law rather than following a decision made by those involved in the care. It raised questions over how such a change would be effected, who would communicate it and who was responsible for identifying it.

This also accorded with the practicality of the situation. In the present case, Worcestershire would have been working towards a plan for release, and the Court considered it would be curious if when the patient was released, a new authority took over. This would be unsatisfactory for the service-user.

The Court also considered, albeit obiter, the meaning of “ordinarily resident” in section 117(3) MHA. The Court found that the decision in respect of the Care Act 2014 in the Cornwall case could not be directly imported. It considered that, in the MHA, “ordinarily resident” meant “is resident”.

Leon Glenister is an expert across public law, including health and social care law.

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