A lack of staff and hospital beds, at a time of “overwhelming demand”, is leading to “harmful” gaps in mental healthcare, the Care Quality Commission (CQC) has said.

As a result, people were being discharged prematurely, often without adequate community support, leading to cycles of readmission to hospital, with increasing use of inappropriate out-of-area placements.

The warnings came in the regulator’s annual report on its monitoring of the Mental Health Act 1983, which covered 2023-24.

This was based on conversations with 4,634 patients and 1,435 carers from 823 monitoring visits to mental health services, interviews with other people with lived experience of detention and analyses of national data on mental health.

Spike in demand for care

Demand for mental healthcare has grown significantly in recent years, said the CQC, which reported that:

• There had been a 43% rise in the number of people in contact with secondary mental health services in the five years to March 2024, according to NHS England’s mental health services data set (MHSDS).
• There was an 18% increase in the number of adults with a serious mental illness who accessed community mental health services between March 2023 and March 2024 (source: MHSDS).
• The number of very urgent adult referrals to crisis teams more than doubled in 2023-24.

The latter figure suggested that people were becoming more unwell while waiting for help than was previously the case.

People ‘more unwell on admission than in the past’

This was reflected in services reporting that people admitted to hospital under the MHA now were more unwell than in the past, which the CQC said could increase recovery time and made it more difficult to admit new patients.

However, inpatient services lacked sufficient beds, which meant that occupancy levels in mental health wards continued to be much higher than the 85% maximum recommended by the Royal College of Psychiatrists. Since the start of 2023-24, the occupancy rate has ranged from 89.6%-90.6%, according to the college.

The pressure on beds meant people were placed on wards that were not suitable for them. For example, the CQC observed that people with dementia or cognitive impairments had been placed on wards for those with functional mental health conditions, meaning they were not cared for in dementia-friendly environments.

In another case, seclusion rooms – which are designed to segregate patients from others in times of crisis – were being used as bedrooms due to bed shortages, meaning people were being cared for in overly restrictive settings.

Rising numbers of out-of-area placements

The situation was also leading to people being placed in hospitals far from home, with official figures showing there were 5,500 new inappropriate out-of-area placements in 2023-24, up 25% on the previous year, the CQC said.

The regulator cited a report last year from the Health Services Safety Investigations Body (HSSIB), which found that people were being harmed by OAPs, due to the increased anxiety of not knowing new staff and being separated from support networks.

The CQC said it saw “multiple examples” of people being placed out of area, without clinical benefit, because of a lack of local beds.

‘Pressure to discharge least unwell patients’

The pressures on wards meant managers felt they had to discharge the “least unwell” patients, with carers also telling the CQC that loved-ones had left hospital too soon.

The regulator found examples of good practice in the provision of post-discharge support, however, this was affected by the pressures on community services, which increased the risks of readmission.

Though the MHA code of practice states that aftercare, provided under section 117 of the act, should encompass health, social care, employment support and supported accommodation, as required, the CQC said its provision was “often far less holistic” than this.

Lack of staffing

Service pressures were exacerbated by a lack of staffing, despite a 35% rise in the number of full-time equivalent mental health workers in the NHS from 2019-24.

Issues included wards not having a permanent responsible clinician, multiple wards not having occupational therapists available and others not having physiotherapists.

Staff shortages led to activities, such as group excursions, day trips and access to gyms, being delayed or cancelled, and patients being prevented from taking authorised leave, potentially delaying recovering and leading to distress.

The situation was leading services to use agency or bank staff, resulting in a lack of continuity of care for patients and, sometimes, poor interactions between staff and patients.

Also, shortages and a high turnover of care co-ordinators in the community led to challenges with the discharge process.

In addition, the CQC found that gaps in staff knowledge were affecting the quality of care for autistic people and those with a learning disability, with some staff having not completed mandatory learning disability and autism training.

People’s rights not explained to them

Other issues cited by the regulator included cases of people not understanding their rights under the MHA. This included:

• patients not being informed of their rights at admission or significant delays them being informed after admission;
• staff not providing updates to patients on their legal rights when the section of the act under which they were detained changed;
• patients not being referred to an independent mental health advocate (IMHA) when they did not understand their rights;
• legal rights information not given in a person’s preferred language.

‘Legislation alone won’t fix issues’

The report comes with the government legislating to reform the MHA in order to reduce the use of detention, improve patients’ rights over their care and prevent autistic people and those with learning disabilities from being detained without a co-occurring mental health condition.

While acknowledging the aims of the Mental Health Bill, the CQC said the sector’s problems could not be fixed by legislation alone, in the absence of additional resource.

“It is essential that the government addresses these significant gaps now to protect people for the future,” said the regulator’s interim director of mental health, Jenny Wilkes. “With the right funding, a sustainable and well-trained workforce and enough beds to meet demand, we can break this damaging cycle.”

‘The very opposite of dignified, humane care’

In response to the report, the chief executive of the charity Mind, Sarah Hughes, echoed the CQC’s calls for greater investment in community care, the workforce and mental health facilities.

“Fundamental problems with the very basics of safe care, like adequate staffing levels, bed capacity and run-down hospitals, are severely impacting people’s ability to properly recover,” she added.

“Being sent hundreds of miles away from your family and loved ones, and not even being able to contact them due to facility issues, would be difficult enough at the best of times, let alone when you’re experiencing a mental health crisis. Isolating people in this way, and holding them in crumbling, outdated facilities, is the very opposite of dignified, humane care.”

By Tim Spencer-Lane

On 6 November 2024, the Mental Health Bill was introduced in Parliament. The bill contains measures to amend the Mental Health Act 1983 (MHA) in order to strengthen the voice of the patient and ensure that that detention is only used when, and for as long as, necessary.

The bill is largely the same as the draft Mental Health Bill published by the previous government, itself largely based on the recommendations of the Independent Review of the Mental Health Act in 2018.

However, the bill also takes forward a number of recommendations from the 2023 report of a joint committee of both Houses of Parliament that scrutinised the draft bill.

The key changes since the draft bill include the following:

• The removal of “how soon” harm may occur from the detention criteria.
• The removal of the requirement for the approved mental health professional (AMHP) to see the nominated person – the role that will replace the nearest relative – in person.
• A new duty on NHS commissioners to make arrangements to inform people about advance choice documents and provide appropriate help to create one.
• Including the wording of the principles identified by the independent review within the MHA’s requirements for a code of practice.
• A new duty on the patient’s responsible clinician to consult with a professional involved in the patient’s treatment when taking the decision to discharge.

What happens next?

The bill will be debated and must be approved by both Houses of Parliament. It will no doubt be amended during its passage through Parliament. Once approved, it will be sent for Royal Assent and will then become an act (law).

It will not come into force immediately. It is estimated that full implementation may take 10 years, largely due to the lead-in time required to train additional clinical and judicial staff.

The following is a general summary of the key provisions of the Mental Health Bill.

Amending the detention criteria

The bill amends the criteria for detention under part 2 of the MHA and for renewals. The aims are to provide greater clarity as to the level of risk that a person must present in order to be detained and to reduce the use of the MHA for people with a learning disability and autistic people.

Firstly, section 2 (admission for assessment) is amended to insert the following new tests for detention:

• That serious harm may be caused to the health or the safety of the patient or another person, unless the patient is detained; and
• It is necessary, given the nature, degree and likelihood of the harm, for the patient to be detained.

Secondly, the section 3 (admission for treatment) detention criteria are amended to insert the following new tests:

• That serious harm may be caused to the health or the safety of the patient or another person, unless the patient receives medical treatment;
• It is necessary, given the nature, degree and likelihood of the harm, for the patient to receive medical treatment;
• That medical treatment cannot be provided unless the patient is detained under the MHA; and
• Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect of alleviating or preventing the worsening of the disorder or one or more of its symptoms or manifestation).

Third, it will no longer be possible to detain a person with a learning disability or an autistic person under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment.

This exclusion does not apply to part 3 patients (those in the criminal justice system).

From nearest relative to nominated person

The bill replaces the nearest relative with a new statutory role, the nominated person (NP).

The NP can be selected by the patient at any time when they have capacity or competence to do so. The nomination must be witnessed by a health or care professional, who must confirm a number of matters, including that there is no reason to think that the patient lacks the relevant capacity or competence or that undue influence has been used.

The NP continues to represent the patient even if that patient subsequently becomes unwell and no longer has the relevant capacity or competence. If the patient lacks capacity or competence to nominate, and has not made a nomination, an AMHP may appoint an NP for the patient.

The NP has the same rights and powers as nearest relatives have now. In addition, the NP would have new rights to be consulted about statutory care and treatment plans (see below) and transfers between hospitals and to object to the use of a community treatment order (CTO).

Currently, when a nearest relative exercises their powers inappropriately or unreasonably, the only means of overruling them is to remove or displace them from their role.

The bill changes this to enable the NP to be temporarily overruled when they exercise certain powers (such as the right to object to a section 3 admission). This is intended to ensure that where appropriate, the NP can continue to have a role in the patient’s care and treatment.

The county court retains the power to terminate the appointment of an NP, either permanently or for a specified time.

Compulsory medical treatment safeguards

The bill makes several reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients.

It introduces a new ‘clinical checklist’, which applies to clinicians making treatment decisions. There is a duty on the treating clinician to consider certain matters and take a number of steps when deciding whether to administer medical treatment to a patient.

These include considering the patient’s wishes and feelings, assisting patients to participate in treatment decisions and consulting those close to the patient. This is intended to enhance the role of the patient in decision making under the MHA.

New safeguards are introduced for patients refusing medication, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee of lasting power of attorney, deputy or the Court of Protection.

In these circumstances, the treatment cannot be given unless there is a “compelling reason” to give the treatment and a second opinion approved doctor (SOAD) has provided certification. A compelling reason means that no other forms of treatment are available or that alternatives are available, but the patient has not consented or they would conflict with an advance decision or a decision by a donee, deputy or the Court of Protection.

Where the patient is consenting to the medication, or lacks capacity or competence (and there is no conflict with any advance decision or decision by a donee, deputy or the Court of Protection), the bill provides that the treatment cannot continue beyond two months, unless an approved clinician or SOAD has certified certain matters. This is a reduction of the current three-month time-period.

The bill also gives additional safeguards to patients who have refused urgent electro-convulsive therapy, either with capacity or competence at the time, in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee, deputy or the Court of Protection. In order to give such treatment, a SOAD must first issue a certificate within a time period prescribed in regulations.

Also, the bill prohibits compulsory treatment on an urgent basis of those with the relevant capacity or competence, in order to alleviate serious suffering, as is currently permitted under section 62. It only permits treatment in the face of a capacitous refusal based on a SOAD certificate and “compelling reasons”.

Community treatment orders (CTOs)

The bill revises the criteria for the use of CTOs in line with changes to the detention criteria. CTOs can only be used if there is a risk of “serious harm” to the health and safety of the patient or others, and consideration has been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. In addition, there must be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.

The CTO must also be agreed in writing by the community clinician. The mental health tribunal is also given the power to recommend that the responsible clinician reconsiders whether a particular CTO condition is necessary.

Learning disability and autism

Under the bill, people with a learning disability and autistic people will not be able to be detained for treatment under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. Also, they will not be able to be made subject to a CTO solely on the basis of their learning disability or autism.

The bill also places care (education) and treatment reviews (C(E)TRs) on a statutory footing. C(E)TRs are designed to ensure that people with a learning disability and autistic people are only admitted to hospital when necessary and for the minimum possible time.

The NHS commissioning body must ensure that C(E)TRs are held when a patient with a learning disability or an autistic patient is detained under the MHA. Certain bodies are required to have regard to the recommendations made by the C(E)TR.

There is a duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties. The aim is to help ensure that adequate community services are available for people with a learning disability and autistic people, so as to avoid unnecessary hospital admissions.

Statutory care and treatment plans

The bill introduces statutory care and treatment plans for detained patients and those subject to community treatment orders and guardianship, excluding those subject to short-term detention powers.

Responsible clinicians are placed under a duty to prepare and regularly review the plan, and regulations will be used to set out the contents of the plan.

Independent mental health advocates (IMHAs)

IMHAs are specially trained advocates who represent and support patients detained under the MHA. The bill extends the right to an IMHA to informal patients.

It also introduces an “opt-out” system, whereby hospital managers and others are required to notify advocacy services about qualifying patients and those services must then arrange for patients to be interviewed to find out if they want an IMHA. The aim is to increase the uptake of IMHAs.

These changes apply in England only.

Detention periods and their renewal

The bill shortens the period that a patient may be kept in detention for treatment. The initial detention period is reduced from six months to three months. This can be renewed for a further three months (reduced from six months) and then for a further six months (reduced from one year).

These changes mean the patient’s initial detention will expire sooner and if the detention is to continue, it must be reviewed and renewed more frequently.

Mental health tribunals

The bill provides that patients have greater access to the tribunal. Specifically:

• section 2 patients can apply to the tribunal within 21 days of detention (rather than 14 days currently);
• section 3 patients can apply within three months (rather than six months currently); and
• automatic referrals to the tribunal take place – in cases where the patient has not exercised their right to apply – three months from the date on which the patient was first detained and then every 12 months.

Discharge process

The bill provides that before a patient is discharged from detention, the responsible clinician must consult someone professionally concerned with the patient’s treatment.

This is intended to ensure that patients are not discharged inappropriately where they may be a risk to themselves or others. There are similar safeguards in respect of the decision to discharge guardianship.

Principles

The bill amends section 118 of the MHA, with the effect of imposing statutory requirements in relation to the content of the code of practice to include the wording of the principles formulated by the Independent Review of the MHA.

Those principles are: choice and autonomy, least restriction, therapeutic benefit and the person as an individual. This will apply to the codes of practice for both England and Wales.

Section 117 aftercare

The bill changes the ordinary residence rules that identify which local authority must provide or arrange section 117 aftercare services to an eligible person, by applying new ‘deeming provisions’.

In broad terms, these mean that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.

So, for example, where a person living in local authority A is placed into a care home in the area of local authority B, local authority A will remain responsible for providing or arranging their aftercare.

The mental health tribunal is also given the power to recommend to the NHS bodies and local authority to provide aftercare services for a patient. The tribunal can reconvene to reconsider a case if any such recommendation is not complied with.

Advance choice documents

The bill places duties on health bodies to make information available about, and help people to create, advance choice documents.

These are written records of a person’s wishes, feelings and decisions about their care and treatment that are made when the person has the relevant capacity or competence.

Clinicians must have regard to these documents (but not necessarily follow them) when providing medical treatment under the MHA.

Places of safety

The bill removes police cells from the definition of “places of safety” for the purposes of sections 135 and 136. This change is in response to evidence that police cells are not suitable environments for people with severe mental health needs awaiting assessment and treatment.

The bill also ends the use of prison as a place of safety for people in contact with the criminal justice system.

Patients in the criminal justice system

The bill aims to speed up the transfer of prisoners with a mental disorder to hospitals by introducing a statutory time limit. The relevant health and justice agencies are required to seek to ensure that a transfer takes place within 28 days.

The bill creates a power that allows the mental health tribunal or the secretary of state for justice to place conditions that amount to a deprivation of liberty on a patient as part of a conditional discharge.

This will apply in a small number of high-risk cases where the patient is no longer benefiting from hospital detention, but the conditions are necessary to protect the public from serious harm.

This is a response to the Supreme Court decision in MM v Secretary of State for Justice [2018] UKSC 60, which held that a patient with the relevant capacity cannot be discharged in this manner under the existing provisions of the MHA.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform. 

By Tim Spencer-Lane

Determining the ordinary residence of a service user is sometimes a highly contested matter. This is mainly because ordinary residence will normally determine which local authority is responsible for arranging and funding a person’s care plan.

Under section 117 of the Mental Health Act 1983 (MHA) there is the added ingredient that the person cannot be charged for services and therefore the costs for the relevant local authority are often higher.

This guide provides a brief overview of how to establish the ordinary residence of those entitled to “aftercare” services under section 117.

It takes into account the decision of the Supreme Court in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31.

What does section 117 say?

Section 117 of the MHA is a duty to provide aftercare services to people who have been detained under sections 3, 37, 45A, 47 or 48 of the MHA and who then cease to be detained and leave hospital.

The duty is placed on health authorities and local social services authorities in whose area the person concerned was “ordinarily resident” immediately before being detained (section 117(3)).

Section 117(4) provides that disputes between local social services authorities in England about a person’s ordinary residence under section 117 may be referred to and determined by the secretary of state for health and social care.

A local social services authority can also request a review of a determination by the secretary of state.

How to determine ordinary residence

There is no statutory definition of ordinary residence. Its meaning and the principles for determining where a person is ordinarily resident have been developed through case law.

The leading authority is R v Barnet LBC ex p Shah [1983] 2 AC 309, where Lord Scarman said: “…‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration”.

This is known as the ‘Shah test’. Chapter 19 of the care and support statutory guidance, under the Care Act 2014, explains how this test should be applied.

In most cases, working out a person’s ordinary residence will be straightforward.

However, difficulties arise, for example, when applying the Shah test to determine the ordinary residence of a person who lacks capacity to decide for themselves where to live.

According to the care and support statutory guidance, local authorities should adopt the Shah approach, but place no regard to the fact that the adult, by reason of their lack of capacity, cannot be expected to be living there voluntarily.

This involves considering all the facts, such as the place of the person’s physical presence, their purpose for living there, the person’s connection with the area, their duration of residence there and the person’s views, wishes and feelings (insofar as these are ascertainable and relevant) to establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration (paragraph 19.32).

When is responsibility for section 117 fixed?

As described above, under section 117, ordinary residence is determined by where the person was living “immediately before” they were detained under the MHA. So, to provide a straightforward example:

• If the person was ordinarily resident in local authority A before being detained under section 3 of the MHA, and
• on discharge moves to local authority B,
• then local authority A will remain responsible for the person’s section 117 aftercare.

In effect, local authority A would continue to be responsible for section 117 services even though the person is now living in a different area.

Indeed, local authority A would continue to be responsible for section 117 services even if the person subsequently moved again to a third local authority area.

But what happens if the person is subsequently re-detained for treatment under the MHA?

What happens if the person is detained again?

The Supreme Court, in Worcestershire, confirmed that, in such cases, the section 117 ends when the person is re-detained. When they are discharged, responsibility for the new section 117 duty will lie with the authority in whose area the person was ordinary resident immediately before their most recent detention. So, for example:

• If the person was living in local authority A before being detained under section 3 of the MHA, and
• on discharge moves to local authority B but is subsequently detained again under section 3 of the MHA,
• then local authority B will become responsible for the person’s aftercare.

Therefore, local authority B becomes responsible because at the point in time when the service user was detained on the second occasion they were ordinarily resident in local authority B’s area (even though local authority A had been responsible for their aftercare services).

This interpretation is also confirmed by the care and support statutory guidance for the Care Act (see below).

Do deeming rules apply to section 117?

The so-called ‘deeming rules’ apply for the purposes of the Children Act 1989, the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014.

In very simple terms, they provide that where a person is placed by a local authority into the area of another local authority (for example, in a care home), the person is ‘deemed’ to be ordinarily resident in the placing authority.

• So, if the person living in local authority A was placed into a care home within the area of local authority B,
• then local authority A will remain responsible for the person’s care services.

However, the Supreme Court decision in Worcestershire confirmed that section 117 does not contain any deeming rules.

This interpretation is confirmed by the care and support statutory guidance (see below).

The Care Act statutory guidance

The relevant parts of the care and support statutory guidance on section 117 aftercare are repeated below.

“Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care. Under section 117 of the MHA, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care.

“However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.” (paragraph 19.64)

“There are several provisions in the Care Act (section 39(1)-(3) and (5)-(7) and paragraph 2 of Schedule 1) which deem a person to be ordinarily resident in a particular local authority’s area in specified circumstances for the purposes of Part 1 of the Act. These deeming provisions do not apply to section 117 of the 1983 Act, nor have they been incorporated into section 117 of the 1983 Act.” (paragraph 19.67)

When does section 117 end?

The section 117 duty lasts until the health authority and local social services authority are satisfied that the person is no longer in need of such services (section 117(2)).

The MHA code of practice (paragraphs 33.20 to 22.24) sets out that aftercare services should not be withdrawn solely on the grounds that, for example, the patient has been discharged from the care of specialist mental health services or returned to hospital informally or under section 2.

It also states that “fully involving the patient and (if indicated) their carer and/or advocate in the decision-making process will play an important part in the successful ending of aftercare”.

In addition, the Supreme Court decision in Worcestershire confirmed that section 117 automatically ceases if the person concerned is re-detained for treatment for mental disorder under section 3 (or one of the other specified provisions).

The judgment also says that the section 117 duty will end, for example, if the person concerned “were to die or was deported or imprisoned”.

It is not explained why this is considered to be the case, particularly in respect of prisoners who have not yet been made subject to sections 45A, 47 or 48 of the MHA. But the judgment clearly says that such a person ceases to be someone to whom section 117 applies*.

*This section of the guide has been updated.

By Tim Spencer-Lane

The Supreme Court has handed down its long-awaited judgment in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31.

The issue in this case was which of two local authorities was responsible for providing and paying for “aftercare services” under section 117 of the Mental Health Act 1983 (“MHA”) for a particular individual.

What does section 117 say?

Section 117 places a duty on health authorities and local social services authorities to provide aftercare services for people who have left hospital following compulsory detention for treatment for mental disorder under the MHA (for example, under section 3).

The duty is placed on the authorities in whose area the person concerned was ordinarily resident “immediately before” being detained. The complication in this case – which is common in practice – was that following their first detention, the person was placed in another local authority area and eventually detained for a second time.

Why did the dispute arise?

It had been widely understood that the correct approach in such cases, was to determine the person’s ordinary residence by reference to where they were living immediately before their last detention.

This interpretation is supported by the care and support statutory guidance under the Care Act 2014, issued by the Department of Health and Social Care (DHSC). This sets out that when a person in receipt of section 117 services is moved to new area and detained again under section 3, the new social services authority will become responsible for their aftercare (paragraph 19.64).

However, the DHSC changed its mind and challenged its own guidance. In 2020, it published five decisions which adopted a radically different approach to determining ordinary residence for the purposes of section 117 (one of which was the Worcestershire case).

These determinations stated that the correct approach in such cases was to determine the person’s ordinary residence by reference to where they were living immediately before their first detention.

In addition, the determinations set out that so called “deeming rules”  – which mean that if a person is placed by a council into another local authority’s area, the first authority retains responsibility for their care – should be read into section 117.

The facts of the Worcestershire case

This case involved a woman (“JG”) who had treatment-resistant schizoaffective disorder. She lived in a property in Worcestershire County Council’s area and was detained under section 3 of the MHA.

It was not in dispute that, at that point, JG was ordinarily resident in Worcestershire and therefore it had responsibility for her section 117 aftercare.

She was assessed as lacking capacity to decide where to live. Following consultation with her daughter and others involved in JG’s care, a decision was made that it would be in JG’s best interests for her to reside in a care home close to where her daughter lived, in Swindon Borough Council’s area. This was arranged and funded by Worcestershire.

A year later, JG was detained again under the MHA (initially under section 2, and then under section 3). A dispute arose between Worcestershire and Swindon as to where JG was ordinarily resident immediately before her second detention. The dispute was referred to the secretary of state for health and social care.

Originally, the secretary of state determined that JG was ordinarily resident in Swindon at the time of her second detention and, therefore, it was responsible for her section 117 aftercare. However, this decision was reversed on review. The secretary of state determined that JG had been ordinarily resident in Worcestershire immediately prior to the first detention and this responsibility did not end when she was detained a second time.

Worcestershire successfully challenged this determination in the High Court. The judge ([2021] EWHC 682 (Admin)) found that, following the second discharge, JG had been ordinarily resident in Swindon. However, this decision was overturned by the Court of Appeal ([2021] EWCA Civ 1957). That decision was appealed to the Supreme Court.

The Supreme Court decision

Lord Hamblen and Lord Leggatt gave the judgment (with which all the other members of the court agreed).

When does the section 117 duty cease?

It was not in dispute that, following the first discharge, the duty to provide aftercare services for JG was owed by Worcestershire and that Worcestershire did not at any point take a decision that JG was no longer in need of such services.

But importantly, it was also accepted that Parliament cannot have contemplated that “two parallel duties, owed by two different local authorities, to provide aftercare services for the same individual should exist at the same time”. This would be a recipe for disputes between authorities and risk “logistical chaos”.

Lord Hamblen and Lord Leggatt held that the best explanation of why concurrent duties do not arise was provided by reference to section 117(1). This sets out that the section 117 duty is triggered when a person ceases to be detained and leaves hospital.

Lord Hamblen and Lord Leggatt reasoned that if a person has been re-detained in hospital for treatment, the criteria in section 117(1) are no longer met (ie that individual is no longer a person who has ceased to be detained and has left hospital). Thus, upon such detention an individual ceases to be a “person to whom [section 117] applies”.

The judges argued that this interpretation was grounded in the language and purpose of section 117, especially the very concept of “aftercare”. Section 117 defines the purpose of “aftercare services” as being, “reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder)”.

That purpose was only capable of being fulfilled if the person concerned was not currently detained in a hospital for treatment for mental disorder.

It was therefore concluded that the duty to provide aftercare services automatically ceases if and when the person concerned is detained for treatment under the MHA. In this case, therefore, Worcestershire’s duty to provide aftercare services for JG ended upon her second detention. When she was discharged, a new duty to provide aftercare services arose.

Which local authority owed that duty is determined by section 117(3) and depends on where JG was ordinarily resident immediately before the second detention.

Ordinary residence

The secretary of state argued that deeming rules should be read into section 117, based on the Supreme Court decision in R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46.

This held that, when a young person turns 18 and transitions from children’s legislation to adult social care legislation, their ordinary residence will remain with the local authority in whose area they were ordinarily resident immediately before turning 18. This was largely to avoid the “undesirable” and “adverse consequences” of having a hiatus between the relevant legislation.

However, the secretary of state’s argument was rejected by Lord Hamblen and Lord Leggatt. This was because the MHA does not contain deeming rules.. It was also clear that, during the passage of the Care Act 2014, which amended section 117 by adding reference to “ordinary residence”, Parliament had deliberately chosen not to apply deeming rules to section 117.

It was, therefore, concluded that the words “is ordinarily resident” must be given their usual meaning, so that JG was ordinarily resident in Swindon immediately before her second detention. Thus, following the second discharge, Swindon, and not Worcestershire, had the duty to provide aftercare services.

What does the judgment mean for local authorities?

The effect of this judgment is that the law on section 117 and ordinary residence (as set out in the care and support statutory guidance) has not changed.

Ordinary residence should be determined by reference to where the person was living immediately before their last detention. It has also been confirmed that section 117 does not contain deeming rules and ordinary residence should be given its natural meaning.

The DHSC had published a ‘guidance note’ setting out that, pending the outcome of the legal proceedings, it would stay the determination of new ordinary residence disputes which concern section 117 and raise issues similar to those in the Worcestershire case.

These ordinary residence disputes will now need to be determined by the secretary of state in the light of the Supreme Court judgment.

What issues might arise in the future?

It is interesting that Lord Hamblen and Lord Leggatt appear to have argued that any best interests decision to place a person in an area means that the person has voluntarily adopted that residence and is hence ordinarily resident there (paragraph 58 of the judgment).

This is at odds with the care and support statutory guidance, which essentially sets out that a fact-based approach should be adopted to ordinary residence in such cases (see, for example, paragraph 19.32 of the guidance).

Whist the comments of Lord Hamblen and Lord Leggatt appear to have been obiter, which means they do not set a legal precedent,  they could lead to confusion on the ground and generate future legal challenges.

Finally, it should be noted that the government has published a draft bill to amend the MHA, which includes provisions that would insert the deeming rules from the Children Act 1989 and Care Act 2014 into section 117 (clause 39).

Therefore, if the bill is passed, the Supreme Court’s decision may be reversed in the future.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental health and mental capacity, and is legal editor of Community Care Inform.

The Supreme Court will hear a case to determine responsibility for funding mental health aftercare for certain out-of-area placements.

It has granted Worcestershire council the right to appeal a Court of Appeal judgment that ruled against the authority and in favour of the government, in a case concerning ordinary residence in relation to section 117 of the Mental Health Act 1983.

The case centres on the lawfulness of a 2020 Department of Health and Social Care (DHSC) policy under which responsibility for aftercare for people detained multiple times under the Mental Health Act remains with the council where the person lived immediately before their first detention.

The DHSC had determined Worcestershire to be responsible for the aftercare of a woman, JG, it had placed in a care home in Swindon, after she was then subsequently detained in hospital from there, and discharged again for aftercare.

Worcestershire successfully overturned this at the High Court last year, in a judgment which found Swindon to be responsible for JG’s care and rejected all three bases of the DHSC’s policy:

1. That the Care Act’s deeming rules – under which a person’s ordinary residence remains with an authority that places them out of area – applied to section 117 cases, and so responsibility for JG remained with Worcestershire. The High Court ruled that this was not applicable to the Mental Health Act, in which there are no deeming rules.
2. That the reference in section 117(3) to responsibility for a person’s aftercare lying with the area where they were ordinarily resident “immediately before being detained” related to the time prior to the first of multiple detentions. The High Court found that it referred to the area where the person was ordinarily resident before the particular detention in question – Swindon in JG’s case.
3. That responsibility for aftercare did not end when a person was detained again but, as per section 117(2), when the relevant council and NHS commissioning body decided that the person no longer needed it. The High Court rejected this for similar reasons to point 2: that, under section 117(3), responsibility lay with the council and CCG where the person was ordinarily resident immediately before the detention in question.

Court of Appeal’s partial backing for government

The Court of Appeal overturned the lower court’s decision that Swindon was responsible for her aftercare, on the third ground. Giving the lead judgment, Lord Justice Coulson said that section 117(2) “could not be clearer” in saying that a council and NHS body’s section 117 duty continued “until such time” as they were satisfied that the person no longer needed aftercare.

The second ground was not raised in the appeal. However, on the first ground, the Court of Appeal rejected the DHSC’s approach, citing the binding precedent of the 2011 Hertfordshire case, which found that the deeming rules did not apply in section 117 cases.

Since Worcestershire challenged its policy in 2020, the DHSC has deferred making determinations on disputes between councils in relation to section 117 that are similar to JG’s case. After Worcestershire was granted to leave to appeal this week, it confirmed it would continue to do so until the Supreme Court handed down its judgement.

Regardless of the outcome, the DHSC intends to legislate to put its policy into law through its reform of the Mental Health Act 1983, with provisions to apply the Care Act and Social Services and Well-being (Wales) Act 2004’s deeming rules to section 117 cases having been inserted into the current draft Mental Health Bill.

A date has not been set for the hearing.