CoA rules on allocation of responsibility to pay for aftercare following MHA detention

The Court of Appeal has handed down a significant judgement on the allocation of responsibility between social services authorities for meeting the care needs of a patient discharged into the community following a period of detention under the Mental Health Act 1983.

In Hertfordshire County Council, R v JM (Rev 1) [2011] EWCA Civ 77, Hertfordshire CC and the intervening party (JM) asked the Court of Appeal to make a declaration that “is resident” in s. 117(3) of the MHA 1983 had the same (or substantially the same) meaning as “is ordinarily resident” under s. 24 of the National Assistance Act 1948.

This would have meant that a person placed by a local authority under s. 21 of the NAA in the area of another local authority remained ordinarily resident in the area of the placing authority for the purposes of Part 3 of the NAA 1948 and s. 117(3) of the MHA.

Counsel for Hertfordshire and JM both argued that Mitting J’s decision in the High Court – refusing such a declaration – created practical problems. Counsel for JM, Nathalie Lieven QC, identified these as including:

• “responsibility for the social care of a mentally ill person will shift between local authorities, without any planning or any therapeutic purpose, on the day an individual is detained under s.3 MHA; this is precisely the time when consistent, coherent care is most needed to increase the chances of early discharge and to maintain existing community links
• prior to discharge and subsequently, the social care of a mentally ill person will be provided by a new social work team unfamiliar with the individual's history and family background
• aftercare is more likely to be provided out of the ‘home’ borough, and away from the friends, family and support networks that are vital to re-integration and recovery
• there will be a strong financial incentive on local social services authorities to place people such as JM, who are likely at some point to be admitted under the MHA, outside their borough boundaries."

Giving the lead judgement, Lord Justice Carnwath said he had “considerable sympathy” for Hertfordshire’s arguments. “It is not easy to see why Parliament did not simply follow the precedent of the 1948 Act when enacting the duty under section 117,” he added.

“However, the 1948 Act precedent must have been well-known to those involved in drafting the new Bill….We have to proceed on the basis that Parliament deliberately chose a different formula; and that, by implication, it accepted the possibility of responsibility changing over the period of detention, including the potential impact on continuity of patient care.”

The judge said the Court was also bound by the decision in Stennett to accept that section 117 was intended to be a free-standing provision, not dependent on the 1948 Act.

He added that these considerations were sufficient to require the court to reject Hertfordshire’s proposed form of declaration.