R. (on the application of Worcestershire CC) v Secretary of State for Health and Social Care
Summary
JG was originally from Worcestershire and was detained under s.3 of the Mental Health Act 1983 with treatment resistant schizoaffective disorder. She was discharged and placed in residential care in Swindon, closer to her daughter. At that point, there was no dispute that Worcestershire was responsible for her MHA s.117 after-care services as she had been ordinarily resident there immediately before being first detained.
Almost a year later, she was re-detained under MHA s.2 and then s.3. Around two months into this hospital confinement, Worcestershire issued notice to terminate the residential care placement. Around three months later she became a voluntary patient for another 15 months before finally being discharged from hospital. The issue was whether Worcestershire or Swindon was subsequently responsible for her after-care.
At first instance, Linden J held it was Swindon because that was where she had become ordinarily residing immediately before being re-detained. But the Court of Appeal overturned that decision, holding that Worcestershire remained responsible. The main reason was because the after-care duty continues "until such time as the clinical commissioning group or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services". No such decision had been made. In particular, the termination notice did not reflect such a decision. Moreover, the duty did not automatically end by operation of law when JG was re-detained. Such an approach would run counter to the continuity of care. As Coulson LJ observed:
- There are other practical difficulties with the judge's solution. Indeed, the whole notion of an automatic change in the identity of the authority with the duty to provide after-care services, triggered by law rather than by a decision made by those actually involved in the care of the service user, seems to me to be unrealistic. It would be woefully uncertain. How would that change come about? How would it be effected? How would it be communicated? Who is responsible for identifying that it had happened? There were no answers to these questions.
- In addition, from a purely common sense perspective, the judge's conclusion seems to me to be a most unsatisfactory outcome. Someone like JG is particularly vulnerable. When/if she is detained, everyone must be trying to work to a plan which sees her release from detention as soon as possible. All through the period of her detention, there would be extensive planning by the responsible authority which, on the judge's findings in this case, was Worcestershire. It would be curious to find that, at the very moment those plans come to fruition, and JG is released, Worcestershire suddenly became irrelevant, and a new duty was owed by a new local authority. That would not make for continuity of care, and would be very unsatisfactory for the service user. Unless I was compelled to conclude that was the effect of s.117, I would be very reluctant to reach a decision on that basis.
- For the reasons that I have given, I do not need to reach such a decision. S.117 is clear. The duty subsists until it comes to an end by the communication of a decision by Worcestershire pursuant to s.117(2). There has been no such decision. The duty therefore continued throughout both the second period of detention and beyond."
Comment
This is a significant decision which impacts upon local authority funding arrangements for after-care services. The first instance decision reflected the conventional legal view (and the Secretary of State's guidance) that, where a person receiving after-care services became ordinarily resident in another local authority area, it was that local authority that would take over s.117 responsibility if the person was re-detained under MHA s.3. Such an approach ensured that those responsible for meeting a person's after-care needs remained local to where they were residing immediately before their hospital admission.
The Court of Appeal's decision changes that approach. It means that the first local authority will continue to remain responsible unless and until a joint decision is made by that local authority and the responsible CCG/LHB that the person is no longer in need of any after-care services. Although re-detention does not automatically terminate the s.117 duty, it seems clear from the judgment that, had a joint decision been taken that JG was no longer in need once she had been re-detention under MHA s.3, the outcome would have been different. As a result, the focus is now likely to move to the circumstances in which after-care bodies can lawfully decide that a person no longer has after-care needs when they are now receiving inpatient hospital care.
There are likely to be a significant number of after-care funding arrangements which will be affected by this judgment. The Swindons of this after-care world that had been paying for s.117 will now want to seek recoupment from the Worcestershires. With a six-year limitation for the recovery of such sums (s.69 of the Care Act 2014), many civil debt claims are no doubt being prepared by eager local authority lawyers. However, permission is being sought to appeal the decision to the Supreme Court. In the meantime, the Secretary of State has confirmed that after-care disputes will continued to be stayed until we have the final word.
Where is the CCG dispute, you might wonder? Well, by virtue of s.14Z7 of the NHS Act 2006, NHS England has set out rules on payment responsibility which are binding on CCGs. As detailed in section 18 of the 2020 Who Pays? Guidance, such rules very much mirror the Court of Appeal's approach, namely that the "originating CCG" that was first responsible for s.117 retains responsibility until such time as the person is discharged from s.117 after-care. This is the case regardless of where they are treated or placed, and regardless of where they live or which GP practice they are registered with. Further guidance and helpful scenarios are provided therein for those wishing to find out more. In the meanwhile, the cardinal principle is that patients must not be disadvantaged by funding disputes.
