The UK Supreme Court has brought an end to prolonged litigation over which public body is responsible for funding services for a patient under section 117 of the Mental Health Act 1983. In R (on the application of Worcestershire County Council (CC)) v Secretary of State for Health and Social Care [2023] the Supreme Court clarified how to identify the responsible aftercare body and the circumstances under which the aftercare body might change.
Identification of the responsible aftercare bodies is essential for timely discharge and funding of services for a person who has been detained for treatment under the Mental Health Act 1983.
The right to aftercare
Section 117 of the Mental Health Act 1983 gives people who have been detained for treatment under the Act the right to aftercare on discharge from hospital (R v Ealing District Health Authority Ex p Fox [1993]). The following who have been detained under the Mental Health Act 1983 are entitled to aftercare under section 117 even if they do not immediately leave hospital when their detention ends, that is those detained under:
- Section 3, admission for treatment
- Section 37, power of the court to order hospital admission
- Section 45A, power of higher courts to direct hospital admission
- Section 47 or Section 48, removal to hospital of prisoners.
Duty to provide aftercare without charge
In R (on the application of Stennett) v Manchester City Council and others [2002] the judicial committee of the House of Lords held that the provision of aftercare services under the Mental Health Act 1983 section 117, was a free-standing duty that was not linked to health or social services provided under other statutory provisions. Parliament had not intended it to be a gateway to chargeable services under other available legislation. The natural and obvious interpretation of the section was that the duty carried with it a concomitant power to carry out the duty and, as there is no express power to charge, the services must be provided free of charge.
Similarly, if a person is paying for a service prior to detention for treatment under the Mental Health Act 1983, charging for that service will cease if it becomes an aftercare service on that person's discharge. The right to free aftercare services is not considered for the purpose of assessing a person's eligibility for a means-tested benefit. The responsible aftercare bodies can allow aftercare services to be provided through direct payments under the Care Act 2014, the Social Service and Wellbeing (Wales) Act 2014 and the National Health Service Act 2006. Top-up payments can be made if the person expresses a preference for accommodation that costs more than the aftercare bodies are required to pay under their aftercare duty (Mental Health Act 1983 section 117A (2) and para 33.15 of the Mental Health Act 1983 Code of Practice for Wales (Welsh Government, 2016)).
Scope of aftercare services
Section 75 of the Care Act 2014 defines an aftercare service as:
- Services that have both of the following purposes:
- Meeting a need arising from or related to the person's mental disorder
- Reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder) (Mental Health Act 1983 section 117 (6) as amended).
Aftercare services can therefore encompass healthcare, social care and employment services, supported accommodation, and services to meet the patient's wider social, cultural and spiritual needs, if these services meet a need that arises from, or are related to the patient's mental disorder, and help to reduce the risk of deterioration in the patient's mental condition. The aftercare service would not therefore include the provision of a nursing service to meet the physical care of the person. Nevertheless the broad range of aftercare services and their enduring aim of reducing the risk of the person requiring admission to hospital can represent a significant financial burden for the responsible aftercare bodies.
Responsible aftercare bodies
In the case of Worcestershire CC v Secretary of State for Health and Social Care [2023] the UK Supreme Court re-stated that section 117 of the Mental Health Act 1983 places a duty on health bodies and local social services authorities to provide aftercare services to a person who has left hospital following detention for treatment of their mental disorder.
The responsibility is placed on those bodies in whose area the person was ordinarily resident immediately before being detained (Section 117(3)(a) Mental Health Act 1983).
The problem to be considered by the UK Supreme Court in the Worcestershire CC case was that, on being discharged from hospital, the person was placed and received their aftercare services, funded by Worcestershire CC, in the Swindon local authority area. The person was later detained again for treatment under the Mental Health Act 1983. Worcestershire CC argued that it was no longer responsible for providing or funding the person's aftercare services and that Swindon Borough Council (BC) was now the responsible aftercare body because that is were the person was ordinarily resident immediately before detention for treatment under the Mental Health Act 1983.
Swindon BC countered by arguing that Worcestershire CC had agreed it was the responsible aftercare body on the person's first discharge from hospital. It had placed the person in the Swindon area so it could not be said that the person was ordinarily resident there because they had not moved voluntarily to settle in the area. Swindon BC also argued that the duty to provide aftercare continued until such time as the relevant authorities are satisfied that the person is no longer in need of such services. The person would continue to need aftercare when discharged from hospital so Worcestershire CC should remain the responsible aftercare body (Section 117(2) Mental Health Act 1983).
The Supreme Court's decision
The UK Supreme Court in the case of Worcestershire CC v Secretary of State for Health and Social Care [2023] held that the duty on an aftercare body to provide aftercare services automatically ended if that person is again detained for treatment under section 3 of the Mental Health Act 1983. The determination of the responsible aftercare body is then to be made and depends on where the person was ordinarily resident immediately prior to this second detention.
Defining ‘ordinarily resident’
The UK Supreme Court held that the term ‘ordinarily resident’ for this purpose had the same meaning stated in Shah v Barnet LBC [1983] at 343:
- Ordinarily resident refers to a [person]'s abode in a particular place or country which [they] have adopted voluntarily and for settled purposes as part of the regular order of life for the time being, whether of short or of long duration.
It can be seen that being ordinarily resident requires the residence to be voluntarily adopted and it must be for a degree of settled purpose. Involuntary adoption is very narrowly drawn by the courts and limited to situations where a person is forcibly detained. The test in Shah requires further modification where the person lacks capacity to decide where to live so that it is for the individual determining the person's best interests to voluntarily adopt the placement on the incapable person's behalf.
The UK Supreme Court therefore held that the person had voluntarily adopted the placement as a result of a lawful best interest determination and the placement was for settled purposes, so it was considered longer term accommodation. The court also rejected the argument that the provisions of the Care Act 2014 and Social Services and Well Being (Wales) Act 2014 that deem a person resident in one area to be ordinarily resident in a different local authority area does not apply to the Mental Health Act 1983.
Conclusion
In Worcestershire CC v Secretary of State for Health and Social Care [2023] the UK Supreme Court held that Worcestershire CC's duty to provide aftercare to the person automatically ended when the person was again detained for treatment under section 3 of the Mental Health Act 1983. They further held that the person could properly be said to be ordinarily resident in Swindon BC's area immediately prior to that detention and so Swindon BC would be the responsible aftercare body along with the health trust on the person's discharge from hospital. Swindon BC will remain the responsible aftercare body until they decide, along with the health trust, that the person is no longer in need of the services, or the person is again detained for treatment under the Mental Health Act 1983.
The ruling of the UK Supreme Court suggests that the responsible aftercare body would not change if the person was moved to a different local authority area or was admitted for assessment under the Mental Health Act 1983. It is only detention for treatment that automatically ends the duty to provide aftercare under section 117 of the Mental Health Act 1983.
KEY POINTS
- Patients discharged from hospital following a period of detention for treatment have the right to aftercare services under the Mental Health Act 1983
- The bodies responsible for providing and funding aftercare are those in whose care the person was ordinarily resident immediately prior to detention
- The duty to provide and fund aftercare continues until the responsible aftercare bodies decide the person is no longer in need of such services
- The UK Supreme Court now holds that the duty under section 117 automatically ends when the person is again detained for treatment under the 1983 Act
- On the patient's subsequent discharge from hospital the responsible aftercare body will be determined afresh by considering where the person was ordinarily resident immediately prior to their detention for treatment