Out of the grounds: when has a patient ‘left hospital’ for the purposes of the aftercare duty in s117 MHA

R (CXF) v (1) Central Bedfordshire Council (2) North Norfolk Clinical Commissioning Group [2017] EWHC 2311 (Admin)

In its judgment of 15 September 2017, the High Court has confirmed that the s117 Mental Health Act 1983 (“MHA”) duty to provide, or arrange for the provision of, after care services to persons who, after being detained under s3 of the MHA, then “cease to be detained” and “leave hospital” can be triggered where that person is granted leave to be absent from the hospital under s17 MHA but that not every service provided on every occasion when a patient leaves hospital will count as a s117 service.  This (at least in part) confirms the position taken in the Code of Practice to the MHA.

The Claimant was diagnosed with autistic spectrum disorder and other conditions and, on 22 June 2016, detained under s3 of the MHA.  Owing to a shortage of specialist residential places, the Claimant was later transferred to a hospital in Norfolk, some 120 miles away from his family home in Bedfordshire.

The Claimant was regularly visited by his mother for escorted day trips, taken by bus, for activities including visiting shops and walks on the beach, which were accepted to be therapeutically beneficial to the Claimant.  Leave to be absent from the hospital for the escorted trips was granted to the Claimant under s17 of the Act.  Until the Claimant was 18, his mother’s substantial costs of making the journey were met by the Central Bedfordshire Council under s17 of the Children Act 1989, but such funding stopped when the Claimant turned 18.  The refusal by the Defendants to provide further funding led to the claim for judicial review.

The issue for the Court was whether the duty to provide after care services under s117 was triggered when the Claimant was granted leave to be absent from the hospital under s17 MHA for an escorted bus trip, which turned on whether, during such trips, the Claimant satisfied the pre-conditions of s117: (i) that he “ceased to be detained” and (ii) that he had “left hospital”.

The Court concluded, on the facts, that the s.117 duty had not been triggered as the Claimant remained in detention and had not left hospital.  The reasoning of the Court was that:

• It is not correct that the s117 duty is triggered whenever a patient detained under s3 is granted a leave of absence; [36]
• The question is whether, “on the facts of the particular case, the patient has ceased to be detained and has left hospital, satisfying the pre-conditions in s.117(1)”; [36]
• The s117 pre-conditions cannot be equated simply with being authorised to leave the perimeter of the hospital, regardless of the circumstances of the authorisation.  The person may remain detained even if authorised to leave for a short time, particularly if under the continuous supervision of hospital staff when outside the premises [37];
• An important factor is whether the patient has been discharged (including on a trial basis), or remains under the full-time care and custody of the hospital and its staff, but has been permitted to take a short trip outside hospital grounds;
• There is a distinction between the patient having “left hospital”, which s117 requires, and having “left the hospital”.  A person may be temporarily absent from hospital premises without having “left hospital” [40].
• One of the purposes of s117(6) is to reduce the risk of a person’s mental condition deteriorating, and requiring their “admission to a hospital again for treatment of mental disorder”.  It is difficult to see how that purpose can be pursued for a person who has not been discharged from hospital, even on a trial basis.