The Department for Health and Social Care has confirmed that the Supreme Court has granted Worcestershire’s County Council application for leave to appeal the decision of the Court of Appeal handed down on 22 December 2021. At present, a date for the hearing has not been set.
What was the Court of Appeal’s Decision in the Worcestershire Case?
The Court of Appeal’s December 2021 decision in Worcestershire made fundamental changes to how local authorities should determine responsibility for Section 117 aftercare.
Most importantly, the Judgment held that a local authority’s duty to provide section 117 aftercare to a person continues until that local authority takes a decision that there is no longer a need for aftercare services for that person.
This means that, in the absence of such a decision to bring that duty to an end, the duty will continue through subsequent detentions under the Mental Health Act even if a person becomes ordinarily resident in the area of another local authority.
In simple language, the Court of Appeal decision made a local authority’s duty to provide Section 117 aftercare services a lot stickier! According to the Court of Appeal, local authority responsibility for Section 117 responsibility sticks with the originating section 117 local authority and that stickiness will survive an out of area placement, subsequent detentions under the Mental Health Act and any changes in the person’s ordinary residence.
The Supreme Court will be asked to look at this issue again and determine whether the Court of Appeal was correct to have fixed the duty with the originating local authority.
Further information about the Court of Appeal decision can be found here.
Why is it important?
Section 117 aftercare is a joint health and social care duty to provide services to persons who have been detained under certain sections of the M Health Act to support them upon discharge and prevent their mental health from deteriorating again to the point that they need hospital admission.
Local authorities and health bodies need to have clarity on the rules for understanding when they are responsible for a person’s Section 117 aftercare to ensure that patients eligible for aftercare receive appropriate services that are well-planned and immediate.
What is the current position?
Ordinary residence disputes raising similar issues to those in Worcestershire (i.e. where a person in receipt of aftercare services is residing in a different area and detained again under the Mental Health Act) will continue to be stayed until the Supreme Court provides judgment. However, disputes must still be referred to the Secretary of State if the local authorities in dispute cannot resolve the dispute within four months.
If you do find yourself with a dispute raising issues similar to those in Worcestershire, you should seek legal advice on what steps you may need to take to protect any potential claim pending the decision of the Supreme Court.
If you would like to discuss any issues relating to the Worcestershire Appeal or to Section 117 responsibility, please contact Anna Davies or Ruth Atkinson-Wilks.