The recent case of R v London Borough of Hammersmith and Fulham has sought to tackle the issue of who should be responsible for the care needs of a patient who has been discharged into the community following a period of compulsory detention in hospital for mental health treatment. The case arose following a disagreement between two local authorities, and highlighted two seemingly inconsistent statutory provisions concerning this area (section 21 National Assistance Act 1948 (NAA) and section 117 Mental Health Act 1983 (MHA). Upon first reading of these provisions, they seem to suggest two different approaches to determining who should pay for a patient’s care in the circumstances outlined above.

Under the NAA, when an individual is placed into accommodation outside a local authority’s area, they retain ordinary residence in the area of the placing local authority, and therefore that placing authority is still required to provide their section 21 care. However, if that person is subsequently detained under the MHA (compulsorily under section 3) the responsibility for providing their section 117 aftercare on discharge moves to the local authority in the area in which they were resident (not ordinarily resident) at the point they were detained.

It was held that this question should be determined in accordance with the MHA, rather than the NAA. This means that, under the MHA, when the patient is discharged from the mental care home, the responsibility for their aftercare will pass to the authority where they were resident before being detained, even if they are ordinarily resident elsewhere.

This could mean that one local authority is responsible for the provision of their section 117 aftercare but they are ordinarily resident in the area of a different local authority.

It was recognised in the case that this could be a difficult ruling, and there were several suggestions that Parliament ought to deal with the uncertainty created by this conflict of statutory provisions. The Law Commission has held a consultation and released a White Paper attempting to deal with this “confusing patchwork of conflicting statutes enacted over a period of 60 years”, so there is scope for some future developments in this area, but the current position is as set out in this case.