The revolving door of multiple detentions and aftercare services: Which local authority pays for aftercare after repeated detentions?

This case was about the duty imposed on both local authorities and CCGs under section 117 of the Mental Health Act 1983 ("MHA") to provide after care services to a patient who had been detained under s3 MHA on two occasions in quick succession.

In March 2021, the High Court ruled that in cases involving multiple hospital detentions under s3 MHA, the duty to provide aftercare services falls on the local authority/CCG where the patient lived immediately before the most recent period of detention, not a local authority or CCG who funded an earlier period of s117 aftercare. As to where the person lived, the statutory term “ordinary residence” was held to have a different meaning here than under social care legislation and the Cornwall case.

The Court ruled that a new duty to provide aftercare under s.117 MHA is automatically triggered by the end of each period of detention under s.3 of the 1983 Act and that the local authority/CCG having this duty is identified by where the patient was living before that period of detention.  It is irrelevant where the patient was living prior to an earlier period of s3 MHA detention.

Thus, where a patient has been detained in hospital in area X is then discharged to area Y and lives there, and is then re-detained, the local authority and the CCG in the area Y must fund aftercare services for the patient. This is notwithstanding that the local authority or CCG in area X may still be providing services.

In Worcestershire, the patient was detained in Worcestershire and accommodated in two different care homes in Swindon for aftercare. She was detained again in Swindon and the Court had to decide who paid for her aftercare. The Court decided that as the patient was ordinarily resident in Swindon immediately before the most recent detention (in Swindon), Swindon Borough Council had the duty to fund aftercare.

However, the Secretary of State has appealed against this decision and has suspended decision making on similar cases until final determination. The local authorities and clinical commissioning groups should apply the Care and Support Statutory Guidance as that still represents the law. Any dispute as to the provision of aftercare should be referred to the Secretary of State; however, such disputes should not result in a gap to provision of services.

Leon Glenister is an expert across public law, including health and social care law.

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