Part VIII contents
114, 114ZA, 114A, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125
I, II, III, IV, 4A, V, VI, VIII, IX, X, Schedules
This section is affected by clause 37 of the Health and Social Care Bill 2010-12. For Mind's proposed amendment and briefing materials (which was agreed by the government) see Mind (Charity).
To be amended by s75 Care Act 2014 (not yet in force at time of writing).
Change made by Mental Health Act 2007
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- DM v Doncaster MBC  EWHC 3652 (Admin) — DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 National Assistance Act 1948 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the MCA 2005 did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 HRA 1998 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of Article 14 read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under s117 MHA and the State would in any event have offered sufficient justification for the result); (6) ..→
- LGO decision: Bath and North East Somerset Council 06/B/16774 (12/12/07) — Duties under s117.
- R (B) v Camden London Borough Council  EWHC 1366 (Admin) — (1) Claimant unsuccessfully sought damages for breach of statutory duty under s117 causing delay after deferred conditional discharge. (2) A person who 'may be in need of such services' under s47 NHSCCA 1990 is a person 'who may be in need at the time, or who may be about to be in need': (a) this includes the situation after a deferred conditional discharge decision; (b) obiter, the judge inclined to the view that it also includes a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing.
- R (BA) v LB Hillingdon  EWHC 3050 (Admin),  MHLO 148 — "This is a claim for interim relief brought on behalf of BA by his litigation friend, the official solicitor, against the London Borough of Hillingdon and Hillingdon National Health Service Primary Care Trust. The relief sought is first, an order that the claimant be provided with community care services under section 117 of the Mental Health Act 1983 against both defendants and/or section 21 of the National Assistance Act 1948 against the first defendant, and secondly an order that the defendants jointly carry out assessments of his need of community care services under section 47 of the National Health Service and Community Care Act 1990." [Summary required.]
- R (IH) v SSHD  EWHC Admin 1037 — Section 73 is compatible with Article 5 ECHR: deferred conditional discharge is a provisional decision; the Tribunal can monitor progress, and reconsider and amend the decision if appropriate.
- R (Mwanza) v LB of Greenwich  EWHC 1462 (Admin) — The claimant was an illegal overstayer who tried to use a s3 admission eight years earlier to obtain free accommodation. (1) An after-care service under s117 must be a service that is necessary to meet a need arising from a person's mental disorder. It does not cover any and all services simply because those services do or may prevent deterioration of relapse of a mental condition. Employment and ordinary accommodation are common needs which do not arise from mental disorder, although mental disorder may give rise to a need for assistance in finding them. However, as a matter of law, ordinary accommodation could fall within s117, although it is difficult readily to envisage any practical examples. (2) On the facts, there could be no duty under s117 to provide what was sought. (3) In any event, eight years earlier a lawful decision had been made to discharge the s117 responsibilities of the local authority and the Trust, so no s117 duty arose. (4) Furthermore, it would be ..→
- R (Stennett) v Manchester City Council (2002) UKHL 34 — S117 is not a gateway section; it contains no charging provision; therefore, no charge should be made for after-care under that section, including for caring residential accommodation.
- R (Sunderland City Council) v South Tyneside Council  EWCA Civ 1232,  MHLO 117 — The chronology in this s117 responsibility dispute was as follows: (a) SF lived at a college hall of residence in Sunderland, (b) she had voluntary admissions to various hospitals, (c) she was voluntarily admitted to a South Tyneside hospital, (d) the college terminated her placement and her licence to remain at the hall of residence, (e) she was detained under s2 then s3 at the South Tyneside hospital. (1) It was common ground that (a) the relevant s117 authority is the relevant LSSA for the area in which a patient is resident when he is detained (Hall), (b) during a period of detention the patient is not 'resident' for s117 purposes in the place of detention (JM); and (c) SF remained resident in Sunderland during the hospital admissions, at least until the Sunderland placement was terminated: therefore the question was where she was resident after that. (2) The High Court judge had decided she remained resident in Sunderland: (a) the South Tyneside placement was 'not ..→
- R (Worcestershire CC) v Essex CC  EWHC 3557 (Admin),  MHLO 104 — In this case Essex argued that VC lacked capacity to have consented to her place of residence, and therefore had not been resident in Essex for the purposes of s117. The result would be either that VC had no place of residence, or remained resident at the last place she lived in before she lost capacity to decide for herself. They were unsuccessful. Extract from judgment: "I do not however read these passages as deciding that a person cannot acquire residence in a place unless he does so voluntarily. Still less do they decide that residence may only be acquired as a result of a decision made by a person with capacity, or lawfully on his behalf by someone else. ... The context and purpose of s117 point in my judgment to an interpretation that is as straightforward as possible, the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention. There may be reasons to conclude that he has not lost an ..→
- Richards v Worcestershire County Council  EWHC 1954 (Ch),  MHLO 43 — "The present proceedings were issued on 6 March 2015. They seek to recover sums totalling £644,645.87, which, it is said, were spent by Mr Richards' deputy on his behalf on providing him with care. The claim is based on section 117 of the 1983 Act. It is Mr Richards' case that section 117 applied when he was released from hospital in 2004 and that, accordingly, the defendants had a duty to provide him with after-care services. He contends that that duty extended to the provision of the various services which have thus far been paid for privately. ... There are essentially two issues to consider: (i) Is it in principle possible for Mr Richards to bring a restitutionary claim? (ii) If so, can the present claim be pursued otherwise than by way of judicial review?"
- Tinsley v Manchester City Council  EWHC 2855 (Admin),  MHLO 44 — "Thus there is a fundamental issue between the parties which they require the court to resolve, which is whether or not it is lawful for the defendant to refuse to provide after-care services to the claimant under s117 on the basis that he has no need of such provision because he is able to fund it himself from his personal injury damages. The claimant's position is that this is unlawful, and represents a thinly disguised attempt to charge through the back door in this particular category of cases when the House of Lords has confirmed in Stennett that it is impermissible to do so in any circumstances. The defendant's position is that to allow the claimant's deputy to claim the provision of after-care services on his behalf under s.117 would offend against the principle against double recovery which has been established in the decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA  EWCA Civ 71,  1 WLR 923 and ..→
[The chapter/paragraph numbers here refer to the 2008 versions of the Code of Practice and Reference Guide.]
117.—(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of [a hospital direction made under section 45A above or] a transfer direction made under section 47 or 48 above, and then cease to be detained and [(whether or not immediately after so ceasing)] leave hospital.
(2) It shall be the duty of the [clinical commissioning group or] [[...]] [Local Health Board] and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies 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[; but they shall not be so satisfied in the case of a [community patient while he remains such a patient.]]
(2B) Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.]
[(2C) References in this Act to after-care services provided for a patient under this section include references to services provided for the patient—
- (a) in respect of which direct payments are made under regulations under section 57 of the Health and Social Care Act 2001 or section 12A(4) of the National Health Service Act 2006, and
- (b) which would be provided under this section apart from the regulations.]
[(2D) Subsection (2), in its application to the clinical commissioning group, has effect as if for “to provide” there were substituted “to arrange for the provision of”.
(2E) The Secretary of State may by regulations provide that the duty imposed on the clinical commissioning group by subsection (2) is, in the circumstances or to the extent prescribed by the regulations, to be imposed instead on another clinical commissioning group or the National Health Service Commissioning Board.
(2F) Where regulations under subsection (2E) provide that the duty imposed by subsection (2) is to be imposed on the National Health Service Commissioning Board, subsection (2D) has effect as if the reference to the clinical commissioning group were a reference to the National Health Service Commissioning Board.
(2G) Section 272(7) and (8) of the National Health Service Act 2006 applies to the power to make regulations under subsection (2E) as it applies to a power to make regulations under that Act.]
(3) In this [section "the [clinical commissioning group or] [[...]] [Local Health Board]" means the [clinical commissioning group or] [[...]] [Local Health Board], and "the local social services authority" means the local social services authority, for the area] in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.
- ↑ Crime (Sentences) Act 1997
- ↑ 2.0 2.1 2.2 Mental Health (Patients in the Community) Act 1995
- ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 Health and Social Care Act 2012 s40(2), (4); in force 1/2/13 ‘only insofar as it relates to the provision of after-care services for the purposes of the health service in England on or after 1/4/13’ (Health and Social Care Act 2012 (Commencement No.3, Transitional, Savings and Transitory Provisions and Amendment) Order 2012/2657); in force 1/4/13 otherwise (subject to savings and transitional provisions in Health and Social Care Act 2012 (Commencement No.4, Transitional, Savings and Transitory Provisions) Order 2013/160
- ↑ 4.0 4.1 4.2 4.3 NHS Reform and Health Care Professions Act 2002
- ↑ 5.0 5.1 5.2 5.3 References to Health Authorities Order 2007
- ↑ 6.0 6.1 Mental Health Act 2007 s32 & sch 3, s55 & sch 11; Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 wef 3/11/08
- ↑ Health Act 2009 sch 1 para 3; Health Act 2009 (Commencement No. 1) Order 2010 (19/1/10)
- ↑ Health and Social Care Act 2012 s40; in force 27/3/12 ‘so far as is necessary for enabling the exercise … of any power to make an order or regulations or to give directions’ (Health and Social Care Act 2012 s306); in force 1/2/13 ‘only insofar as it relates to the provision of after-care services for the purposes of the health service in England on or after 1/4/13’ (Health and Social Care Act 2012 (Commencement No.3, Transitional, Savings and Transitory Provisions and Amendment) Order 2012/2657); in force 1/4/13 otherwise (subject to savings and transitional provisions in Health and Social Care Act 2012 (Commencement No.4, Transitional, Savings and Transitory Provisions) Order 2013/160
- ↑ Health Authorities Act 1995