R (Wiltshire Council) v Hertfordshire CC  EWCA Civ 712,  MHLO 103
The patient had been placed under a hospital order when he was resident in Wiltshire. He was conditionally discharged with a condition to reside in Hertfordshire. He had no wish to return to Wiltshire, but the Court of Appeal decided that the residence condition meant his place of residence was not voluntary, and decided that he was still 'resident' in Wiltshire for s117 purposes.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
LOCAL GOVERNMENT — Community care services — Discharged patient — Patient subject to hospital order with restrictions — Patient discharged but recalled then discharged again — Whether patient resident in area of same local authority as when original hospital order made — Mental Health Act 1983, s 117(3)
Regina (Wiltshire Council) v Hertfordshire County Council
B;  WLR (D) 229
CA: Moses, Kitchin LJJ, Bean J: 22 May 2014
Where a person had been made subject to a hospital order with restrictions, then conditionally discharged, then recalled to hospital, and then conditionally discharged for a second time, for the purposes of section 117(3) of the Mental Health Act 1983 he was still to be treated as “resident in the area” of the same local authority as that in which he lived before the original hospital order was made.
The Court of Appeal so held dismissing the appeal of the claimant, Wiltshire Council, from an order of Judge Denyer QC of 11 September 2013 by which he refused the claimant permission for judicial review of a decision of the defendant, Hertfordshire County Council, which had rejected the claimant’s contention that, for the purposes of section 117(3) of the Mental Health Act 1983, the defendant was the responsible authority in respect of the provision of after-care services to a person (“SQ”) who had been conditionally discharged from hospital.
SQ had lived in Wiltshire until 1995 where he had been almost continuously in contact with the local authority psychiatric services since adulthood. In 1995 in the Crown Court at Swindon he was made subject to a hospital order under section 37 of the Mental Health Act 1983. He was detained under that order for more than 13 years, until 2003 in Hampshire and thereafter in Cambridgeshire. In 2006 it was ordered that he should be conditionally discharged but with his discharge to be deferred until arrangements had been made to meet certain conditions. Appropriate accommodation was secured and SQ was conditionally discharged to a placement in Hertfordshire where he remained until 2011 when he was recalled and detained in a Hertfordshire hospital. In 2014 he was again conditionally discharged from hospital to the same accommodation in Hertfordshire. Prior to discharge, there had been correspondence between Wiltshire and Hertfordshire authorities as to which one owed SQ the duty to provide after-care services pursuant to section 117 of the 1983 Act. The defendant rejected the claimant’s contention that the defendant was the responsible authority.
BEAN J said that the critical provision was section 117(3) of the 1983 Act and in particular the question of where, for the purposes of that subsection, SQ was now “resident”. When SQ was discharged in 2009 he was resident in Wiltshire for section 117 purposes: see R v Mental Health Review Tribunal, Ex p Hall  1 WLR 1323Not on Bailii! and R (Hertfordshire County Council) v Hammersmith and Fulham London Borough Council  PTSR 1623. SQ’s liability to be detained or to be recalled to detention following a discharge still derived from the original order made by the Crown Court: the chain of causation had never been broken. While SQ considered Hertfordshire to be his home and had no wish to return to Wiltshire, that did not make his residence in Hertfordshire voluntary for the purposes of the 1983 Act; he had to live there because it was a condition of his discharge. It was unnecessary to consider whether a fresh duty to provide after-care services arose on SQ’s second discharge in 2014 as whether such duty was a fresh or continuing one, on the facts of the case it was the claimant’s duty.
KITCHIN and MOSES LJJ agreed.
Appearances: Hilton Harrop-Griffiths (instructed by Solicitor, Wiltshire Council) for the claimant; Rhodri Williams QC and Nazeer Chowdhury (instructed by Legal and Member Services, Hertfordshire County Council) for the defendant.
Reported by: Nicola Berridge, Solicitor.
© 2013. The Incorporated Council of Law Reporting for England and Wales.