This case involved a dispute between two local authorities over who had responsibility under section 117 of the Mental Health Act 1983 (‘the Act’) for the aftercare of a person (‘SQ’). SQ had lived in Wiltshire until 1995, and was almost continuously in contact with local authority psychiatric services from the age of 18.
In December 1995, SQ was made the subject of a hospital order under section 37 of the Act, with restrictions by an order of the Crown Court under section 41 of the Act. He was detained under that order for more than 13 years until 2003 in Hampshire, and thereafter in Cambridgeshire. Later, a Mental Health Review Tribunal ordered that he was to be conditionally discharged subject to conditions which included residence in a 24 hour staffed hostel approved by the Responsible Medical Officer (‘the RMO’) and the Social Supervisor, but further directed that his discharge was to be deferred until the Tribunal was satisfied that the necessary arrangements had been made to meet those conditions (November 2006). By a further decision, the same Tribunal later reached the same decision of a deferred conditional discharge (July 2008).
Six months later, the First Tier Tribunal directed a conditional discharge and noted that they were now satisfied that appropriate accommodation had been secured and that a consultant psychiatrist in the community and a social supervisor had been appointed. One of the conditions of this discharge was that SQ was ‘to reside at Winnett Cottage, Stevenage, [Hertfordshire,] or such other 24 hour staffed hostel as [may be] approved by the RMO and Social Supervisor’.
In March 2009, SQ was conditionally discharged from hospital to a placement at Winnett Cottage, and lived there for a further six months. He was later recalled under section 42(3) of the Act by the Secretary of State and once again detained in a hospital, this time in Hertfordshire.
In February 2014, he was again conditionally discharged from hospital to Winnett Cottage. Before this, there had been correspondence between Wiltshire and Hertfordshire on the subject of which authority would owe him the duty to provide after-care services under section 117. In January 2012, Hertfordshire rejected Wiltshire’s contention that Hertfordshire was the responsible authority.
Wiltshire issued a claim in the Administrative Court for judicial review of the decision contained in that letter, however Judge Seys Llewellyn refused permission. Wiltshire renewed the application at an oral hearing before Judge Denyer QC, who also refused permission.Wiltshire then applied to this Court for permission to appeal. This was granted in December 2013 by Arden J.
On behalf of Wiltshire, Mr Harrop-Griffiths submitted that two issues arose on this application:
1. whether the recall to hospital in 2011 resulted in SQ being owed a fresh duty under section 117 on leaving hospital in 2014; and
2. (if so,) whether SQ was for the purposes of section 117 of the Act ‘resident’ in Hertfordshire’s area at the date of the recall in 2011.
The judge held that there was no dispute that, when SQ was conditionally discharged from hospital for the first time in March 2009, he was ‘resident’ in Wiltshire for section 117 purposes. The Court drew upon the decision in Hall, and its approval by this Court in R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council . In the latter case, Carnwath LJ found that the period of actual detention under the 1983 Act was to be disregarded when deciding where a patient was resident, and pointed to an interpretation of ‘residence’ that excluded the period of compulsory detention under the section. Carnwath LJ held that section 117(3) implied that the area of residence was distinct from the place of detention, given that ‘The hospital in which he [was] detained’ was referred to separately in the same provision for the purpose of defining the ‘fallback position’, but not as relevant to the primary criteria. As there was no suggestion that the hospital of detention was to be responsible for his aftercare, there was no reason for its area to define responsibility.
Mr Harrop-Griffiths however submitted that following SQ’s recall in 2011 and discharge for the second time in 2014, the position had changed. Nonetheless the Court held that the principal difficulty with that argument was that it became impossible to define at what moment and for what reason SQ ceased to be ‘resident’ in Wiltshire’s area for the purposes of section 117. Mr Harrop-Griffiths submitted that the change must have been made within a few days of his arrival at Winnett Cottage. But the Court held that Wiltshire did not suddenly cease to be the local services authority in whose area SQ was ‘resident’ for section 117 purposes because on discharge he was sent to an address in Hertfordshire.
Further, the Court rejected the attempt by Mr Harrop-Griffiths to draw a distinction between the first period of detention and the second. This was because SQ’s liability to be detained, or to be recalled to detention following a conditional discharge, still derived from the original order made by the Crown Court in 1995, and therefore the chain of causation had never been broken.
Whilst Wiltshire submitted that policy should make the most recent developments relevant rather than what happened 20 years ago, the Court held that if that argument was correct, it would have applied on SQ’s first conditional discharge in 2009. The Court rejected Wiltshire’s argument because, in accordance with Hall and R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council , the period of detention between 1995 and 2009 was to be excluded.
Wiltshire also submitted that on discharge in 2009 and 2014, SQ did not want to return to Wiltshire’s area where he had not lived since 1995, and chose to stay in or close to the area of Kneesworth House in Cambridgeshire where he had been living since 2003. They also stated that his residence at Winnett Cottage was voluntary, compared with the compulsory detention in a hospital or prison. However, the Court held that whilst SQ considered Hertfordshire to be his home and had no wish to return to Wiltshire, it did not make his residence at Winnett Cottage voluntary for the purposes of the 1983 Act. Rather, SQ was required to live there as it was a condition of his discharge imposed by the Tribunal.
For these reasons, the Court concluded that where a person was made subject to a hospital order with restrictions, then conditionally discharged, then recalled to hospital, and then conditionally discharged for a second time, for the purposes of section 117(3) of the Act he was still to be treated as ‘resident in the area’ of the same local authority as that in which he lived before the original hospital order was made. It was therefore unnecessary to consider whether a fresh duty or a continuing duty to provide after-care services arose on SQ’s second discharge because on the facts of this case it was Wiltshire’s duty either way. The Court dismissed this application for judicial review.