After-care under the Mental Health Act 1983
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After-care under the Mental Health Act 1983. The Act. The Mental Health Act 1983 provides for the admission, detention and treatment of those who are suffering from a “mental disorder”.

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After-care under the Mental Health Act 1983

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After care under the mental health act 1983

After-care under the Mental Health Act 1983

The act

The Act

  • The Mental Health Act 1983 provides for the admission, detention and treatment of those who are suffering from a “mental disorder”.

  • By Section 1 of the Act “mental disorder” is defined as being “any disorder of or disability of the mind”.

The act continued

The Act continued

  • Part II of the MHA83 provides for admission for assessment and for treatment.

  • By s3 MHA83 a patient may be detained, providing that he suffers from a mental disorder of such a degree that it is appropriate for him to receive treatment in hospital, and it is necessary for the health and safety of the patient, or of others, for him to receive the treatment.

To whom does s117 apply

To whom does s117 apply?

  • To those detained under s3

  • Those admitted to a hospital in pursuance of a hospital order made under section 37

  • or transferred to a hospital in pursuance of [ a hospital direction made under section 45A or section 47or 48…and then cease to be detained and [(whether or not immediately after so ceasing)] leave hospital.

To whom does s117 apply1

To whom does s117 apply?

A community patient is not a person in respect of whom the authority can be satisfied that no services are required(an amendment to s117(2) MHA83by the Mental Health Act 2007).

Community patient is a person given the meaning in s17A MHA1983 and by s17A MHA 1983 that includes a person subject to a community treatment order, see s145MHA83

The nature of the duty

The nature of the duty

  • By s117(2) it is of the duty of the PCT and social services to provide in co-operation with voluntary organisations after care services for any person to whom this section applies until such time as the relevant authorities are satisfied that he is no longer in need of such services.

The nature of the duty continued

The nature of the duty continued

It is a matter of discretion for the LA whether a person is in need of after-care services, but, in the event that the authority is satisfied that there is such a need then the duty to provide such services is absolute.

Duration of the duty

Duration of the duty

  • This is a continuing duty R v Ealing District Health Authority ex parte Fox [1993] 3 All ER 170

  • It is a continuing duty in respect of a patient who may be discharged although only triggered on the release of that patient

  • It does not cease until both the relevant PCT and the relevant local authority conclude that the services are no longer required.

Which is the relevant la

Which is the relevant LA?

  • By s117(3) the relevant social services authority is the local social services authority for the area in which the person concerned is resident or to which he is sent on discharge from the hospital in which he was detained.

  • The duty does not transfer save by agreement

No charge for after care services

No charge for after care services

  • Authorities are not entitled to charge for after care services An attempt to argue that this statutory provision triggered other obligations (for which charges could be made) failed in R v Manchester City Council, ex parte Stennett; R v Redcar and Cleveland Borough Council, & Oths [2002] UKHL 34; [2002] 2 A.C. 1127;[2002] 4 ALL ER 124

  • This is a policy decision aimed at an exceptionally vulnerable class of people per Buxton LJ in the CA with whom Lord Steyn agreed

Definition of after care services

Definition of “after care services”

Clunis v Camden and Islington Health Authority [1998] 3 All ER 180 at 191, [1998] Q.B. 978 at 992 per Beldam L.J (approved by the HL at Paragraph 9 in Stennett ):

“After-care services are not defined in the Act of 1983. They would normally include social work, support in helping the ex-patient with problems of employment, accommodation, or family relationships, the provision of domiciliary services and the use of a day centre and residential facilities.”

Definition continued

Definition continued

  • In Stennettit was agreed that caring residential services were eligible.

  • Residential care was perceived as an alternative to hospital with ensuring that the former patient complied with obligations to take medication

  • It was not freely chosen and so charging for such care would be regarded as surprising

Non residential accommodation

Non-residential accommodation

R (on the application of Michael Mwanza) v (1) Greenwich LBC (2) Bromley LBC [2010] EWHC1462(Admin) Hickinbottom J:

  • Rejected the proposition that normal accommodation could never be provided under s117

  • But held that the nature of the free provision wa such that Parliament did not require provision of accommodation of former s3 patients if that was the only need

  • Rejected the proposition that all services must be provided to prevent a deterioration

  • Considered the question of what services to provide was one for the LA which had a wide discretion

Potential claims

Potential claims

  • A public law right so by JR

  • Must act promptly & in any event within 3 months

  • Query what about an incapacitated individual? No express extension under Part 54

  • What about issue raised as a defence to a claim for damages?

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