The case law suggests that local authority and health authority where the client was ordinarily resident prior to admission are the relevant authorities fixed with the s117 after care duty; unless the condition of discharge requires residence in another area, when that other area will be fixed with the s117 duty. See >Mental Health Review Tribunal and others ex p Hall.
No clarification has been provided in the cases or the guidance as to the position where the person had neither a place of ordinary residence prior to the section being imposed, nor any particular destination positively imposed by an MHRT by way of discharge conditions…
We think that an approach simply locating liability by reference to wherever the person was actually living, when they were detained, would have better suited the statutory purpose of clarity, and catered for the fact that a certain percentage of people who are detained, lack mental capacity and thus lack the capacity to be able voluntarily to choose a place of ordinary residence. Since the situation requires clarity, the easiest approach to adopt is that it is the authority wherever the person actually lived, and that this authority remains liable for so long as person chooses to accept any residential arrangements made by the authority pursuant to its aftercare duty.
For the client who changes his or her mind and makes his/her own arrangements or voluntarily leaves a residential placement, it would surely be most sensible if that was regarded as terminating that authority’s connection with the client? We must emphasise that this point has not been considered in litigation and we are merely hypothesising as to what the outcome might be if it were to be raised.