R CXF (acting by his mother and litigation friend) v (1) Central Bedfordshire Council

JurisdictionEngland & Wales
JudgeBean LJ,Haddon-Cave LJ,Lord Justice Leggatt
Judgment Date20 December 2018
Neutral Citation[2018] EWCA Civ 2852
CourtCourt of Appeal (Civil Division)
Docket NumberC1/2017/3082,Case No: C1/2017/3082
Date20 December 2018
Between:
The Queen on the application of CXF (acting by his mother and litigation friend)
Appellant/Claimant
and
(1) Central Bedfordshire Council
(2) NHS North Norfolk Clinical Commissioning Group
Respondents/Defendants

[2018] EWCA Civ 2852

Before:

Lord Justice Bean

Lord Justice Leggatt

and

Lord Justice Haddon-Cave

Case No: C1/2017/3082

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

Ms Dinah Rose QC (sitting as a Deputy High Court Judge)

[2017] EWHC 2311 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Ian Wise QC and Shu Shin Luh (instructed by Campbell-Taylor Solicitors) for the Appellant

Mike O'Brien QC and Varsha Jagadesham (instructed by LGSS Law) for the First Respondent

Eleanor Grey QC and Peter Mant (instructed by Capsticks Solicitors LLP) for the Second Respondent

Amanda Weston QC and Michael Henson-Webb made written submissions on behalf of MIND as Intervenor

Hearing date: 5 December 2018

Approved Judgment

Lord Justice Leggatt
1

This appeal raises a question of interpretation of section 117 of the Mental Health Act 1983 (the “Act”), which imposes a duty to provide “after-care” services to persons who are detained under the Act and then “cease to be detained and … leave hospital”. The question is whether this duty applies to a person granted leave of absence from hospital under section 17 of the Act to go on a day trip in the custody of hospital staff.

The statutory framework

2

I will identify the provisions of the Act directly relevant for present purposes before summarising the facts.

3

Section 117 is headed “after-care” and makes provision for “after-care services”. By section 117(2), it is the duty of the clinical commissioning group and “local social services authority” to provide, or arrange for the provision of, after-care services for any person to whom section 117 applies until such time as they are satisfied that the person concerned is no longer in need of such services. For this purpose, the relevant clinical commissioning group and local social services authority are specified by section 117(3) as those:

“(a) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;

…; or

(c) in any other case 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.”

4

“After-care services” are defined in section 117(6) as services which have both of the following purposes:

“(a) meeting a need arising from or related to the person's mental disorder; and

(b) reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).”

5

By section 117(1):

“This section applies to persons who are detained under section 3 above … and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.”

It is the meaning of the final words of this provision which is at the centre of this dispute.

6

It is not disputed that the claimant in this case falls within the opening words of section 117(1), as he is a person who is detained under section 3 of the Act. Section 3 provides that a patient may be admitted to a hospital and detained there for treatment in pursuance of an application made in accordance with that section.

7

Under section 6 of the Act, a duly completed application for the admission of a patient to a hospital for treatment under section 3 is sufficient authority to convey the patient to the hospital and, where the patient is in the hospital, “for the managers to detain the patient in the hospital in accordance with the provisions of this Act”: see section 6(2).

8

Section 17 of the Act is concerned with leave of absence from hospital. Pursuant to section 17(1):

“The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons.”

By section 17(2), such leave of absence may be granted to a patient “either indefinitely or on specified occasions or for any specified period.” Section 17(3) gives the responsible clinician power to direct that the patient remain in custody during his absence and provides that:

“where leave of absence is so granted, the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital …”

Section 17(4) confers a power to revoke the leave of absence and recall the patient to the hospital where it appears to the responsible clinician that it is necessary so to do in the interests of the patient's health or safety or for the protection of other persons.

The facts

9

The claimant (who is also the appellant) was born on 10 August 1998 and was therefore 18 years old when he commenced this claim in November 2016. He has been diagnosed with autistic spectrum disorder, severe to profound learning disabilities, speech and language impairment and attention deficit hyperactivity disorder. Since 22 June 2016, the claimant has been detained as a patient for the purposes of treatment under section 3 of the Act. Because of his complex needs and challenging behaviour, there are a limited number of specialist residential placements at which suitable treatment is available. This has resulted in his being detained since 4 July 2016 at Cawston Park Hospital in Norfolk, which is a long way (120 miles) from his family home in Bedfordshire.

10

Since August 2016, the claimant has been granted daily leave of absence from the hospital under section 17 of the Act by the clinician responsible for his care to go on bus trips. These bus trips have taken place up to three times a day. It is a condition of his leave of absence on these trips that the claimant is escorted on each occasion by two members of hospital staff. The purposes of the leave of absence are stated on the forms granting it to be leisure, treatment, and relaxation.

11

Once a week, the claimant's mother makes the long journey from her home in Bedfordshire to visit him, and back, travelling by car. During her visits, she accompanies her son on his bus trips and helps him to engage in a variety of activities including shopping, walks on the beach and visits to a local aviation museum and a local dinosaur park. Although there is some dispute as to the importance of his mother's presence on the trips, it is not disputed that the bus trips, the associated activities and the claimant's face-to-face contact with his mother are all therapeutically beneficial to him.

12

As found by the judge, the cost of the weekly visits made by the claimant's mother is, for her, substantial and causes her real financial hardship. Until the claimant's 18 th birthday, the expenses were reimbursed by the first respondent under section 17 of the Children Act 1989 as part of the assistance provided to the claimant as a child “in need”. This funding ceased, however, when the claimant turned 18 and, since then, his mother has had to bear the costs of visiting him herself from her own social security benefits.

The proceedings

13

In these proceedings the claimant seeks judicial review of the refusal of each of the defendants (and respondents to this appeal) to fund his mother's travel costs under section 117 of the Act. The first respondent is the local authority for the area in Bedfordshire where the claimant's family home is situated and where he was ordinarily resident before he was detained under section 3 of the Act. The second respondent is the clinical commissioning group for the area of Norfolk in which the hospital is located. Neither respondent is funding the cost of the care and treatment which the claimant is receiving at Cawston Park Hospital. That is being funded by the NHS Bedfordshire Clinical Commissioning Group, which is the clinical commissioning group for the area in which his family home is situated. The NHS Bedfordshire Clinical Commissioning Group was originally a party to these proceedings but the claim against it was subsequently discontinued.

14

The respondents both deny that section 117 of the Act is applicable in this case. In addition, the second respondent contends that, if there is a duty under section 117 to provide after-care services to the claimant, the duty falls on the NHS Bedfordshire Clinical Commissioning Group jointly with the first respondent, and not on the second respondent.

The issues

15

The first issue raised by the claim, and the main issue raised on this appeal, is whether, when he goes on an escorted day trip for which he is granted leave of absence under section 17, the claimant is a person to whom section 117 of the Act applies. This depends on whether, when he goes on such trips, the claimant “ceases to be detained and … leaves hospital” within the meaning of section 117(1).

16

If that issue is decided in the claimant's favour, further issues arise as to: (1) whether the after-care services which there is a duty to provide under section 117 may in principle require the provision of funding to cover the transport costs incurred by the claimant's mother; (2) if so, whether there is a duty to provide such funding on the facts of this case; and (3) if so, whether the duty falls on the first and second respondents jointly or (as the second respondent argues) on the first respondent jointly with the NHS Bedfordshire Clinical Commissioning Group.

The decision of the High Court

17

In her judgment given on 15 September 2017, Ms Dinah Rose QC, sitting as a Deputy High Court Judge,...

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8 cases
  • Worcestershire County Council v Secretary of State for Health and Social Care
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 22 March 2021
    ...Code of Practice for the purposes of construing section 117 is impermissible: see R(CXF) v Central Bedfordshire Council & another [2019] 1 WLR 1862 CA 144 Mr Parkhill argues that the central point of section 117(1) is that it identifies a class of individuals, namely those who have been de......
  • R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care
    • United Kingdom
    • Supreme Court
    • 10 August 2023
    ...were). As one of us (Leggatt LJ) put it in giving the lead judgment of the Court of Appeal in R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852, [2019] 1 WLR 1862, para 38: “The clear purpose of section 117 is to arrange for the provision of services to a person who has been, bu......
  • Devon Partnership NHS Trust v Secretary of State for Health and Social Care
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 22 January 2021
    ...assistance in understanding how it is envisaged a requirement may be fulfilled in practice: R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852, [23]–[24] (Leggatt LJ). The Secretary of State's submissions 32 For the Secretary of State, Mr Cornwell submitted that the phrases “perso......
  • SAM Gisagara v The Upper Tribunal (Administrative Appeals Chamber)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 16 February 2021
    ...maintains his application for permission. The crux of his argument is that the Claimant was on s.17 leave. He relies on R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 (a case concerning after-care services pursuant to s.117) for the proposition that it will be a question of fa......
  • Request a trial to view additional results

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