Funding Aftercare Treatment for Mental Health Patients

“Who Pays” for s.117 aftercare treatment where a patient is detained under the Mental Health Act 1983 (“the 1983 Act”) on multiple occasions?  Is it the local authority/CCG in the area in which the patient is living before the first period of detention or does a funding responsibility follow the patient, bouncing like around like a ball from one local authority/CCG to another local authority/CCG, depending on where the patient is placed when discharged on the previous discharge?

That issue came before the High Court in Worcestershire CC v Secretary of State for Health and Social Care [2021] EWHC 682 (Admin). The Secretary of State said funding responsibility stays with the first authority permanently – in this case Worcestershire – the Judge said that was wrong and that it followed the patient’s placement out of borough by Worcestershire, in this case to Swindon.

The statute provides that the responsible authority is that where the patient was “ordinarily resident”…immediately before being detained” for the purpose of s.117(3)(a) of the 1983 Act. On that basis, he decided that the patient’s place of ordinary residence changed each time the patient was discharged. He rejected the Secretary of State’s contention that, in light of Cornwall [2016] AC 137, where a person is placed by a local authority pursuant to its statutory duties to provide care, the place of ordinary residence remains with the placing authority.

The Judge also grappled with the question as to when the original duty to provide after-care services under s.117 comes to an end and, in particular, whether it was automatically brought to an end if the person is detained again pursuant to s.3.  He accepted the Secretary of State’s argument that the duty to provide services under s.117 would not terminate automatically when a person is detained for the second time, and that a conscious decision by the responsible authority is needed, addressing its mind to whether the need for the services continues (which it might not, if there is a prospect of the person being released again in the near future). But he held that that duty would terminate automatically when the person is released for the second time, because at that point a new duty would arise (potentially owed by a different authority) which would exclude the earlier duty. On the facts, Worcestershire’s duty therefore continued to subsist throughout the second period of detention but came to an end by operation of law the moment that the patient was discharged.

The case involves a detailed analysis of the statutory scheme, policy statements and the caselaw. It may have three undesirable consequences:

• First, local authorities/CCGs will examine their existing caseloads and identify those multiple detention cases out of area. That will lead to a “merry-go-round” of funding disputes.
• Second, it will impose unexpected additional costs on local authorities/CCGs who happen to have specialist mental health detention facilities in their areas because a second detention will fix them with continuing funding responsibility.
• Third, it may encourage local authorities to move detained mental health patients out of area (to “dump” as defined in London Borough of Greenwich v Secretary of State for Health [2006] EWHC 2576 (Admin)) in order to free the local authority/CCG of funding responsibility after a second detention.

It will be interesting to see if there is an appeal and if so whether the Court of Appeal agrees, bearing in mind the unattractive consequence that responsibility may bounce from authority to authority over a series of short term detentions. However this is the law at the moment. The judgement is likely to be of interest to local authorities and CCGs across the country.

Landmark has considerable expertise in this area.  Tim Buley QC acted for the Secretary of State. David Lock QC acted for Cornwall in the earlier case which went to the Supreme Court.