In the scenario where a person presents as a ‘revolving door’ sort of a case (this is the jargon for someone who goes in and out of mental hospital and has spells in the community until he or she deteriorates again, usually through failure to take the medicine prescribed by the professional staff in the NHS), it is unfortunately the case that the law as to the transfer of s117 Mental Health Act aftercare responsibilities between one authority and another, if the person chooses to move their place of residence in the meantime, is just not clear. This is because of what was said in the judgments in a case called >Torfaen CBC ex p Russell Hall.
Also there is no procedure provided in the statute or in guidance, for sorting a dispute between two authorities, or one between a user and one or other of the authorities in line for responsibility, short of asking for a declaration in legal proceedings, or waiting for there to be a challengeable refusal by one or other authorities to pay or make arrangements which can then be judicially reviewed.
Looking at the problem from the point in time of the admission to hospital which was latest in the client’s personal history, one can say with some confidence that if one can tell where the client was ‘ordinarily resident’ prior to that admission, then in line with the approach taken by the court in the >Torfaen case, that is the authority with responsibility. The judges held that the responsible authority is the one where the client was ordinarily resident prior to his or her admission under compulsory section.
Most people admitted under s3 will still have capacity to choose where to live, whilst in the community, and will only be under compulsion as to their place of residence, before or after discharge, if they were under s25A MHA supervised discharge or bail conditions or conditions from a Mental Health Review Tribunal. If since his or her last discharge, a service user has made arrangements to live in either rented or owned accommodation in a particular place, then that person will have made themselves ordinarily resident in the area of that local and health authority. The authority which was responsible will no longer be providing the aftercare because there will be a relationship of landlord and tenant between the landowner and the client, not a s117 MHA relationship. The client may still need other aftercare services, such as homecare, day care or social work advice and support, but if the move out to privately owned or rented accommodation is intended to be permanent, then we think that the first authority ceases to be responsible for ongoing aftercare services.
If one looks at the question of liability for s117 aftercare, from the other end of the chronology of events, when the client was first admitted under s3 and became entitled to aftercare, the analysis would be the same. If someone was admitted to hospital when they had been living in x area, then it is x area which owes the first aftercare duty. In law it makes no difference to that aftercare liability that those concerned think it best for the individual that he or she be provided with care in a residential setting in z area, because the detail of what is appropriate, suitable, and where, is a matter for the s117 professional aftercare team. The client’s accepting that professional advice, and moving to that z area, does not, of itself, we think, transfer responsibility to the z authority immediately, for if it did, the original authority would only have a liability to arrange, and not make any ongoing payments for aftercare, once any client had moved into the setting chosen as part of the plan – and that would be inconsistent with the Torfaen case.
What triggers the transfer, in our view, is that the client may not stay put, and will only rarely be obliged to stay put, as part of the conditions for discharge. Thus the client may move of his/her own volition later, to arrangements made privately by the client or their family. Alternatively, his/her conduct may become sufficiently bad to lead to the client’s eviction from the contracted setting in which the s117 authority first placed the client.
In the latter situation, the x authority would have to re-assess the client, and come to a conclusion about what should be offered instead. If it has to be residential care, then in most cases, (other than where a well-off client or family chooses to make private arrangements in order to maximise choice and convenience) the authority will simply re-contract – the aftercare for the mental health problem is still needed, and that is what obliges the authority to go on providing it (see s117(2) for the trigger to the lawful ending of aftercare services).
In contrast, if at that point the client chooses to go and stay with friends, relatives, or in rented or owned council or other accommodation, we think that this step on the part of the client amounts in law to the client’s having decided to provide him or herself with parts of the care package which the client would have otherwise needed. If s/he chooses to go back to x area at that point, and lives there under private arrangements, we think that the x area remains responsible for the rest of the necessary package of services by way of aftercare, because they are still needed. However, if the client makes a capacitated choice to carry on living in z area, we think that this has the effect of changing his/her place of ordinary residence, as of the moment when s/he makes his or her own arrangements.
We conclude as set out above, because the Torfaen case is clear (whether it is rightly or wrongly decided, is another matter!) that an authority which acquires liability for someone’s aftercare on the basis that the person was ordinarily resident in that authority at the time of their admission, does not necessarily remain responsible forever. The judgment envisages a point in time when responsibility is transferred, in legal terms, and to our thinking this suggests that the judges were thinking of the time when either :
a) someone under residence conditions as part of the discharge by the MHRT, ceases to be under those conditions and makes up their own mind where to live, or
b) someone not subject to conditions changed their mind as to where they want to live (or refuse to accept the first liable authority’s original or later offers of contracted aftercare arrangements) and voluntarily moves, under his or her own steam (not under a contract to which the previous authority and a new provider are party), from the place first proposed as suitable.
When a client chooses to move into owned or rented accommodation in another area distinct from the one which acquired the aftercare liability, in our view the previous LA needs to call a meeting with the HA and make a cessation decision, not on the basis that the services are no longer needed, but because the first area is no longer the responsible authority. If there is no such meeting it makes it easier for the second authority into which the client has voluntarily moved, to argue that ongoing aftercare services are still the responsibility of the first authority because it has not taken formal steps to withdraw from responsibility.
Specifically Related question:
>Why do legal commentators suggest that s117 aftercare packages should be jointly funded by health and social services authorities, regardless of the precise content of the particular package?