Mental Health - July 2010

Establishing the responsible commissioner

A service user’s ‘settled presence’ will be a significant factor

A recent decision of Mr Justice Mitting clarifies the position of primary care trusts and local authorities that provide ‘aftercare services’ under section 117 of the Mental Health Act 1983 (R (M) v London Boroughs of Hammersmith & Fulham and Sutton). In particular, it gives additional guidance on establishing the responsible commissioner, who will usually have to fund those services.

The case concerned M, who had been detained under section 3 of the Act.  When he was discharged from hospital and became entitled to aftercare services, it was unclear where he was ‘ordinarily resident’ for the purposes of section 117.  He had been living within the borough of Hammersmith & Fulham, but immediately before his admission to hospital, social care services had placed him in Sutton.  Once there, M had terminated his tenancy, but he had returned to Hammersmith & Fulham for one night, albeit sleeping rough.  He now said he wanted to return there.

Mitting J said ‘ordinarily resident’ connotes a “settled presence in a particular place other than under compulsion”.  The correct approach would be to ask the patient where he is resident rather than where he would like to be resident.  On the facts of this case, M was ordinarily resident in Sutton.

It is rare for a case such as this to reach court, as one would ordinarily expect these issues to be resolved locally.  The case shows that in determining the responsible commissioner, it is important to ensure that all of the facts are established.  It seems that the ‘settled presence’ of the service-user prior to detention will be a more important factor than any wish he or she might express.  But if they can be, it is infinitely preferable for such matters to be resolved without recourse to the court.

Emma Galland, Solicitor
Weightmans LLP