Courts clarify responsibility of s.117 under MHA

Courts Clarify who is the Responsible Authority for the Purposes of s.117 Aftercare under the Mental Health Act 1983.

On 15 February 2011, the Court of Appeal provided clarity as to who the responsible authorities are for the purpose of s.117 aftercare under the Mental Health Act 1983 (the "Act") in the case of R (on the application of Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM [2011] EWCA Civ 77.

S.117 aftercare services

Under the Act the responsible authorities have a joint duty to provide aftercare services to a patient who was detained under section 3 or section 37 (or is transferred under section 45A, 47 or 48) once they are discharged from hospital. This is a freestanding right to services, and not part of  wider statutory duties.

Who are the responsible authorities?

Section 117 of the Act makes it clear that Parliament intended Primary Care Trusts (or Local Health Boards) to be jointly responsible with Local Social Services Authorities in providing aftercare services. In practice, this function of Primary Care Trusts is often delegated to NHS Trusts and NHS Foundation Trusts.

Which health body and local social service authority is responsible?

Section 117 of the Act states that it is the health body and local social service authority:

• for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.

Unfortunately, this does not provide much clarity as between health bodies and local social service authorities.

R v Mental Health Review Tribunal ex. P. Hall [1999] 3 All ER 132

This case made it clear that the responsible authority is that which is responsible for the area in which the patient was resident prior to being detained, unless it is unable to be established where the patient was resident prior to detention, in which case it is the authority responsible for the area to which the patient is discharged.

However, this case did not address the common scenario for local social services authorities where persons are placed in their area under the National Assistance Act 1948 (the "NAA 1948") by another local social services authority but are deemed to be resident in the area of the placing local social services authority – the so called "deeming provisions."

R (on the application of Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM [2011] EWCA Civ 77

This case has made it clear that the "deeming provisions" are irrelevant for the purposes of identifying the responsible local social services authority for aftercare services under s.117 of the Act. In practice, this means that where a person is placed in Area B by local social services authority A under the NAA 1948 (and therefore deemed resident in Area A), is detained under the Act and discharged to Area C, the local social services authority for Area B is responsible for s.117 aftercare services, notwithstanding the fact that they person was deemed resident in Area A prior to their detention.

In addition, this case has made it clear that where the patient is resident during their detention is irrelevant for the purposes of identifying the responsible authority for s.117 aftercare services.

What does this mean for responsible authorities?

The responsible authority (both health and local social services) is that which is responsible for the area in which the patient was resident prior to detention. In determining where the patient was "resident," residence should be given its ordinary everyday meaning. This means where the patient was living.

Only if it is not possible to determine where the patient was resident prior to detention, does responsibility for aftercare services shift to the authorities responsible for the area to which the patient is discharged.

What should responsible authorities do in practice?

1. It is important that responsible authorities consider the issue of responsibility  as soon as possible after the detention commences so that  the responsible authorities can  undertake the planning elements of s.117 aftercare duties before the patient is discharged from hospital.. Things to consider include:

• Where did the patient live?
• Did they have a tenancy agreement or own a property in the area?
• Where did the patient work?

Issues which may muddy the water are:

• Temporary residency – for example, where a person is in hotel accommodation or a very short term tenancy;
• Where a person maintains two places of residence;
• Where a person is detained in prison or on remand – it is clear that where a person is in prison it does not mean they are resident in that area.

2. Detaining authorities should open up dialogue with potentially responsible authorities at the earliest opportunity in order that any areas of dispute can be remedied prior to the patient being discharged.

3. Only if a patient's residence prior to detention cannot be established, should responsibility fall with the authorities responsible for the area to which the patient is discharged.

S.117 of the Act does not provide for any mechanism of dispute resolution if responsible authorities cannot decide between themselves who has responsibility. This means that if absolute deadlock is reached, the only route open to the responsible authorities is to go to Court for a determination. This is an expensive and time consuming process which should be avoided if at all possible. Authorities may wish to consider agreeing binding dispute resolution processes.

Finally, it is important that prolonged disputes as to responsibility does not delay a patient's discharge from hospital. This could result in a claim from the patient that they are being unlawfully detained and their human rights are being breached.