[2012] EWCA Civ 1232

Mental Health Act 1983 - Interface with MCA

Summary

Although this concerns the free after-care provisions of s.117 of the Mental Health Act 1983, it provides an opportunity to mention the ordinary residence provisions surrounding the identity of the relevant supervisory body for DOLS.

The main issue for the Court of Appeal was whether patient SF was "resident" in a Sunderland hall of residence or a South Tyneside hospital for the purposes of determining which authority was responsible for paying for her after-care services. The parties agreed that SF was resident in Sunderland at the time when she was informally admitted to the South Tyneside hospital on 7 October 2009 having attempted suicide. She suffered from atypical Asperger’s and a borderline personality disorder and consented to the admission, "but it is likely that if she had not given her consent, compulsory powers would have been used" (para 6). However, just over two weeks into her two-month informal hospital stay, her licence to live in the Sunderland hall of residence was terminated, along with her college placement. After absconding from the hospital on 9 December 2009, she was detained for assessment and then for treatment under the Mental Health Act.

At first instance, Langstaff J had applied the test for ordinary residence in R (Shah) v Barnet LBC [1983] 2 AC 309 (adopting a place voluntarily and for settled purposes as part of the regular order of one’s life for the time being), and noted that the informal admission was not a voluntary surrender: it was closely analogous to a compulsory admission, with the powers to detain in the background. Moreover it was not for a settled purpose; nor was it part of the regular order of her life. Accordingly SF remained resident in Sunderland.

Allowing the appeal, the Court of Appeal held that Shah was not a helpful guide and Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57 was to be preferred. Although the period of hospital detention must be disregarded, regard could be had to the preceding two-month informal stay. The question "is not only that of physical presence" and "it may be relevant to consider why the person is where he or she is, and to what extent his or her presence there is voluntary" (para 31). Crucially, once the Sunderland hall of residence had ceased to be available to her, there was no place where SF could be said to be "resident" other than the hospital. It followed that South Tyneside was responsible for her after-care.

Comment

It is important to emphasise that where someone "resides" for MHA 1983 s.117 purposes involves a different test to deciding where they "ordinarily reside" for the purposes of the National Assistance Act 1948. Section 117 is freestanding and contains none of the deeming provisions referred to in the 1948 Act. When identifying which supervisory body is responsible for dealing with a DOLS application, the Mental Capacity Act 2005 relies upon the "ordinarily resident" approach of the 1948 Act, and not the "resident" approach of the 1983 Act. Thus, the fact that a person can be said to "reside" in hospital for s.117 purposes, between losing their community placement and being detained under the MHA, may not impact greatly in non-MHA situations.

No mention is made in the judgment of SF’s capacity to consent to the informal admission and the deprivation of liberty safeguards were not used. However, let us imagine an incapacitated person is ordinarily resident in area A where they are accommodated by local authority A under Part 3 of the National Assistance Act 1948. If they are placed in a care home in local authority B, s.24(5) of the 1948 Act deems that person to still be "ordinarily resident" in area A. Thus, local authority A remains the supervisory body for any DOLS application.

If the person is admitted to hospital in area B under a DOLS authorisation, s.24(6) of the 1948 Act similarly deems them to be "ordinarily resident" in area A and so the Primary Care Trust in area A will be the supervisory body. If, however, they were detained in that hospital under MHA s.3, PCT B and local authority B will be responsible for their s.117 after-care because area B is where they were "resident" prior to the detention. That was the position prior to this decision and does not appear to be altered by it.

What remains to be seen is the extent to which the Shah test will continue to be used when determining ordinary residence for the purposes of the 1948 Act (and therefore DOLS). Indeed, clause 32 of the draft Care and Support Bill retains the term "ordinarily resident" so the issue seems set to continue.