Responsibilities for After-care under s117 Mental Health Act: The Supreme Court’s Judgment

We are often asked to advise local authorities and health bodies, on disputes about where the responsibility for the commissioning and funding of after-care services for mental health patients subject to section 117 Mental Health Act 1983 (MHA) lies.   

Section 117 of the MHA imposes a joint legal duty on the relevant Integrated Care Board (ICB) (in England) or Health Board (in Wales) and local social services authority to provide (or arrange to provide) after-care services for mental health patients who have been detained under section 3 or another qualifying section of the MHA when they cease to be detained and leave hospital.

The definition of after-care services is provided by section 117(6) MHA and are services that meet “a need arising from a person’s mental disorder” and reduce “the risk of deterioration of the person’s mental condition (and accordingly, [reduce] the risk of the person requiring admission to hospital again for treatment for mental disorder”. The question of which local authority is responsible is determined by where the patient was “ordinarily resident … immediately before being detained”.

In the recent case of R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care (Respondent) (supremecourt.uk) [2023] UKSC 31, the Supreme Court was asked to resolve how ordinary residence should be determined when a person, already in receipt of after-care services, moves to a different local authority area and is then detained again under section 3 MHA.

The Facts

The patient (A) was initially detained in hospital in the area of Worcestershire County Council (WCC) where she was ‘ordinarily resident.’ A lacked capacity to decide where to live on discharge and on consultation with A’s family, A was discharged to a care home close to her daughter in Swindon, which was funded by WCC pursuant to its duties under section 117 MHA. A was later detained a second time under section 3 MHA whilst living in the care home, which was in the administrative area of Swindon Borough Council (SBC). WCC issued notice terminating the care home placement, but it was an agreed fact that WCC did not formally cease after-care services to A and nor had there been any reassessment of A’s needs in order to conclude such services were no longer necessary.

A dispute arose between the two local authorities as to where A was ‘ordinarily resident’ immediately before the second detention, and, therefore, which was responsible for the provision of after-care services to A on discharge. It was agreed by the Councils that it must have been Parliament’s intention that only one local authority can be responsible for provision of after-care services.

The Councils referred this dispute to the Secretary of State for Health & Social Care (SSHSC) for determination under section 40(1) of the Care Act 2014. The SSHSC initially held SBC to be responsible. SBC requested a review, which led to the SSHSC changing their position and holding WCC responsible. This went against the SSHSC’s own statutory guidance, having preferred the reasoning of the Supreme Court in R (Cornwall) v SSHC [2015] UKSC 46.

Case Progression

WCC brought Judicial Review proceedings in respect of the SSHSC’s decision. At first instance, the Administrative Court decided SBC was responsible for the provision of after-care as A was ordinarily resident in its area immediately before the second detention. The Court of Appeal overturned the decision of the Administrative Court and WCC was held responsible, on the grounds that although A was indeed now ordinarily resident in Swindon, WCC’s original duty to provide after-care continued. This was on the basis that the requirements set out in s.117(2) to formally end such services had not been taken. WCC then appealed to the Supreme Court.

SBC did not take part in the appeal to either the Court of Appeal or the Supreme Court as the defendant in the action was the SSHSC. The SSHSC opposed the appeal.

The Supreme Court overturned the decision of the Court of Appeal.

In the Supreme Court’s view:

1. Section 117 Duty: a duty under section 117(2) to provide after-care services automatically ceases when the patient is detained again under section 3 MHA (or another provision specified in section 117(1)). Upon discharge from the new detention for treatment, a fresh section 117 duty is placed on the local authority of the area in which the patient was ordinarily resident immediately before the second detention. The Supreme Court also observed that in its opinion an informal admission for treatment or a section 2 detention for assessment would not cause an automatic or permanent end of the right to after-care services from a previous detention.
2. Ordinary Residence: the Supreme Court was not persuaded that it should insert a deeming or disregarding provision into section 117 MHA in relation to how “ordinary residence” is defined. Such provisions do exist in the Care Act 2014 and the Children Act 1989, but in the absence of express provision the words "ordinarily resident" must be given their usual meaning, applying (or adapting, where there is a lack of capacity) the two part Shah test (that the new location of residence has been “adopted voluntarily” and “for settled purposes”).
3. On the facts, Patient A was ordinarily resident in Swindon immediately before the second detention; therefore, Swindon was responsible for her after-care.

Conclusion

Determining section 117 responsibilities remains fact dependent, but the judgment provides clarity and that confirms the section 117 duty ceases when the patient is detained under a relevant provision.