R (B) v Camden London Borough Council & Camden & Islington Mental Health and Social Care Trust [2005] EWHC 1366 (Admin)

The Claimant (B) was convicted of inflicting GBH and unlawful wounding.  He was detained under s37 and s41 of the Mental Health Act 1983 (the 1983 Act). B remained in detention until a deferred order was made for his conditional discharge.

B alleged that part of the delay in implementing his discharge was due to a breach of statutory duty by the Defendants, Camden London Borough Council and Camden & Islington Mental Health and Social Care Trust (Camden) who were the authorities jointly responsible for B’s after-care under s117 of the Act.

B also sought damages for breaches of his human rights under Articles 5 and 8 of the European Convention on Human Rights (ECHR).

B’s RMO agreed that he could be conditionally discharged providing:

(1) he was “tested” in the community by the use of overnight leave
(2) a suitable RMO and CPN were identified.
(3) he was subjected to random drug testing and that this continued
(4) he complied with his antipsychotic medication.

Various recommendations were made in respect of the most appropriate type of hostel and the conditions and resources that would be necessary to meet B’s needs. (Due to B’s index offence he could not be discharged by the Tribunal back to Camden.)  An order was made for B’s conditional discharge, to be deferred until the MHRT was satisfied that the necessary conditions had been met.

A suitable hostel, which was out of the area, was identified by Camden CMHT.  It had recently de-registered from being a care home and Camden was uncertain if it could legally or financially fund such a placement under s117.

It was agreed by Camden that the hostel could meet B’s needs and was his first choice in relation to a community placement.  The hostel agreed to provide a place for B.   Camden also agreed that specific time-scales should operate to ensure that B was not kept waiting unnecessarily and to adhere to timescales imposed by the MHRT.  B sought clarification from Camden in relation to funding but was told that the hostel had not yet been agreed as the appropriate after-care service for B by the legal department.  B sought interim injunctive relief “requiring” Camden to approve interim funding for the placement, a mandatory order that it fund the placement, breach of its statutory duty under s117 and damages under Articles 5 and 8 of ECHR.

Support at the premises identified was shortly to become funded in part through the Supporting People (SP) scheme but Camden was told that B could not access this funding because he was to be placed, by Camden, from out of the area. (it would presumably not have been a problem had he been granted a tenancy by the landlord, as opposed to being placed by Camden). The identified hostel had de-registered as a provider of care, and was no longer a service provided by social services.  It had become a housing service funded by Enfield SP Service.  There was concern from Camden as to whether a social services department could purchase care from an unregistered provider.  (no objection could have been made, of course, unless assistance with bodily functions was something that this man was going to need – see s121 Care Standards Act for the special definition of registrable care). However this difficulty was overcome once the hostel had received recognition by Enfield as a SP provider placement.    But there were no protocols in place between Camden and Enfield to facilitate such an out of borough SP placement.  It was suggested that B register with the housing authority covering the accommodation in order to access Enfield’s SP funding.  However, Camden later clarified that B was entitled to funding by them and his entire placement costs, including the support, would be funded based on its s117 duty. By this time the hostel had been registered as a SP provider.  At the next hearing of the MHRT an order was made that Camden fund the placement on the proviso it was satisfied that it was suitable and it was willing to contract on Camden’s standard terms and it would use its best endeavours to resolve maters before the next Tribunal hearing.

Funding was finalised together with a care plan and the MHRT agreed to conditionally discharge B to his placement.  An application for permission for judicial review was denied because the funding had been agreed and the claim was unsustainable.  B appealed but was refused on the basis that he had by then been conditionally discharged and a complaint should be made to the appropriate ombudsman rather than applying for judicial review, relying on  Anufrijeva v Southwark LBC [2003].  B appealed to the Court of Appeal and permission to appeal was granted on the basis that Anufrijeva might not prevent the claim about illegality. The case was remitted to the High Court.

S.117
The High Court examined Camden’s duties under s117 of the Act and considered whether the duty arose before discharge and if so, when, exactly.  B argued that a provisional decision to conditionally discharge a patient meant that he had ceased to be detained and triggered Camden’s s.117 duty.  This section only confers obligations on aftercare authorities when patients cease to be detained and leave hospital.  Yet a deferred discharge was never likely to be converted into an actual discharge unless the after care authority make the necessary arrangements.  When they were duly notified that a deferred conditional discharge had been directed, (the notification to the local authority being the responsibility of the hospital or the claimant’s solicitor), a local authority had a duty to ensure that there was an up-to-date s.47 1990 Act community care assessment in place. In B’s case this duty was fulfilled within a reasonable time since Camden had begun their assessment before the decision to defer the conditional discharge was made.   Camden had taken steps to identify a suitable placement for B and carry out a community care assessment.  It was not therefore in breach of its duties under s117 or s47.  The court also found that practicality required that from notification onwards, the s117 authorities were under a duty to plan to make the necessary arrangements in order for a deferred discharge to be able to be implemented.

Delay

Because resources are relevant to the means chosen by the authority to meet a person’s s117 needs, the court felt that it was acceptable for Camden to explore funding issues before making a care planning decision, in order to take cost-effectiveness into account and balance the claimant’s rights against the other demands upon its budget and the possibilities of other agencies meeting the needs.  It did not find that any delay on their part in this case, delayed B’s discharge from detention.

Damages

The true remedy against a s117 body was judicial review, not damages.  Even if Camden had been in breach of its s117 duties or s47, and the breach had prolonged B’s detention under the Act, Camden would not have been liable to damages under sections 6 and 8 HRA 1998 – it would not have been detaining the individual.  Article 5 and 8 ECHR were not engaged in relation to B’s detention.  There was no evidence that B suffered any significant distress as a result of the alleged prolongation of his detention and even if both Articles had been engaged the damages awarded would have been extremely modest.

Claim dismissed.

Comment

This case comes even closer to suggesting that the duty to provide aftercare is a duty merely to use one’s best endeavours. But when s117 is abolished, and s47 of the 1990 Act, and the ordinary care planning statutory functions are the only sources of vires for aftercare packages, the case law in that domain says that a duty to meet assessed eligible need is an individually enforceable duty. That would seem to be a worrying implication of abolition, for local authorities and PCTs, but good for mental health clients.

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