R Sunderland City Council v South Tyneside Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Langstaff |
| Judgment Date | 15 July 2011 |
| Neutral Citation | [2011] EWHC 2355 (Admin) |
| Date | 15 July 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/359/2011 |
[2011] EWHC 2355 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Mr Justice Langstaff
Case No: CO/359/2011
Mr Harrop-Griffiths (instructed by Sunderland City Council) appeared on behalf of the Claimant.
Mr Mitford (instructed by South Tyneside Council) appeared on behalf of the Defendant.
The issue at the heart of this application for judicial review is whether either, and if so which, of two local authorities have the duty under section 117 of the Mental Health Act 1983 of providing after-care services upon the eventual release of a young woman now 23, known as SF, from compulsory detention for treatment under that Act. The application is in form a challenge by Sunderland to the position statement of the South Tyneside Council of 18 November 2010, which suggests that the answer to the question I have posed should be given as Sunderland. The relevant responsibilities of councils under the section has, according to the researches of counsel, directly been considered in only three cases: R v Ealing District Health Authorityex parte Fox [1993] 1 WLR 373, a decision of Otton J as he was ("Fox"); R v Mental Health Review Tribunalex parte Hall [1999] 3 All ER 132, a decision of Scott Baker J as he was ("Hall"); and R (M) v London Borough of Hammersmith & Fulham and R (Hertfordshire County Council) v London Borough of Hammersmith & Fulham [2010] EWHC 562 (Admin), a decision of Mitting J ("M"), which on appeal became R (Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM (Interested Party) [2011] EWCA Civ 77 ("JM"). I should mention that the section was commented on in R v Manchester City Councilex parte Stennett [2002] AC 1127. That decision has nothing directly to offer save that it is authority for the proposition that section 117 is a freestanding provision and is not to be construed in the context of and so as to align with provisions under the National Assistance Act of 1948.
None of those authorities has considered a factual situation such as arises for consideration here.
The Facts
SF suffers from atypical Asperger's and a borderline personality disorder. She had been detained for treatment under section 3 of the Mental Health Act in 2007, and later discharged. Leeds City Council took responsibility for her after-care under the provisions of section 117. Leeds City Council is an Interested Party to these proceedings, as is SF. Neither has made any representations to the court; neither has been represented. In September 2009 SF moved to a college in Sunderland called ESPA, that is, Education and Services for People with Autism. This was a residential placement; she lived in Westfield Hall, a hall of residence. She was there for some three weeks. The parties agree that she was a resident there; they disagree as to her residence thereafter.
On 3 October 2009 SF attempted suicide. She was taken to Sunderland Royal Hospital, then to the Queen Elizabeth Hospital in Gateshead, and then in a matter of two or three days, the detail of which is not material, she was admitted to Rose Lodge, which is a purpose-built hospital in the South Tyneside area. The information I have in respect of Rose Lodge comes from the evidence of Colin William Ashworth in his statement of 18 March. He describes it as a newly opened, purpose-built hospital providing short-term treatment for patients with a learning disability. She absconded from Rose Lodge in early December 2009. She had not been under any formal compulsion to remain at Rose Lodge, though it is argued by Mr Mitford that compulsion was never far from the horizon. In consequence of her absconding and subsequent return at the end of a weekend to Rose Lodge, she was detained under compulsion at that hospital under section 2 of the 1983 Act; that is, for assessment. Thereafter, from 24 December 2009 she was detained for treatment under section 3 of that Act. On 2 June 2011, she moved from Rose Lodge to Linden House in Yorkshire, still detained under section 3.
When first admitted to Rose Lodge, she was admitted informally. The Code of Practice promulgated by the Department of Health in 2008 at paragraph 4.9 provides that:
"…informal admission is usually appropriate when a patient who has the capacity to do so consents to admission."
It mentions at paragraph 4.12:
"The threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment…"
It is suggested to me by Mr Mitford on behalf of South Tyneside that the admission, informal as it was, was in accordance with guidance which sought to avoid compulsion where consent could be secured.
In a report to the First Tier Tribunal, subsequently compiled and containing a date of 21 December 2009 written by Michelle Smith, it is noted at paragraph 10 that SF began the hospital episode as an informal patient following a suicide attempt. It records that she went into hospital in October 2009 for an assessment, and had remained to date. The author appears to have either concluded or assumed that the hospital episode, as she termed it, was one and the same episode, even though it began informally and ended under detention at the time of her report.
In the first statement of Mr Ashworth, he noted that the nursing records indicated, as he summarised it, that following her admission, by which he meant her admission on 7 October, SF was unhappy about being at Rose Lodge, and wanted to leave. He drew attention to five particular incidents which he thought conveyed that message. In a note dated Saturday, 3 October 2009, but plainly written on the following morning, to which Mr Harrop-Griffiths in the course of his impressive submissions referred me, the following is said about the circumstances of the admission at the outset:
"[SF] was asked if she would stay in hospital, she agreed to this, Julie did say, there was every possibility she would have been sectioned if she had not volunteered to stay in hospital."
The thrust of this might suggest that that information was conveyed either expressly or by clear implication to SF, but it is to some extent ambiguous. Against those matters of fact, which are identified from the documents and statements, I conclude that her admission to Rose Lodge was not compulsory, but it was closely analogous to a compulsory admission. There were powers to detain by compulsion in the background, which it is reasonable to assume that SF, the staff of the lodge and those concerned with her, and South Tyneside Council, were well aware of.
After her admission on this basis to Rose Lodge, she plainly no longer slept the night in her hall of residence at Westfield. On 23 October 2009 ESPA wrote a letter in which it indicated to the funding party:
"[SF] is clearly not able to benefit from or participate in the programme on offer at ESPA College and therefore we have no alternative at present but to terminate her placement.
We have agreed to be involved still with [SF] and a representative is attending CPA meetings with a view to contributing to plans for her transition."
The parties agree that she was legally capable of giving consent, and of having and expressing lucid views.
Finally in respect of the facts, I observe that in the report which Michelle Smith prepared, she mentioned, and Mr Harrop-Griffiths relies upon, that:
"She remains in hospital because she does not have anywhere else to go."
That is, however, written at a time when SF was in compulsory detention, and therefore it does not seem to me appropriate to give it significant weight.
The Law
Section 117 of the Mental Health Act 1983 is headed "After-care". So far as material to this application, it provides as follows:
"(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of …
(2) It shall be the duty of the [Primary Care Trust or] [Local Health Board] and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the [Primary Care Trust or] [Local Health Board] and the local social services authority are satisfied that the person concerned is no longer in need of such services …
(3) In this [section […] 'the local social services authority' means the local social services authority, 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."
The question in this appeal concerns the interpretation and application to the facts of subsection (3). The effect of Fox as summarised in Hall was that Otton J decided that a district health authority was under a mandatory duty under section 117 to provide after-care services for any person to whom the section applied, and was therefore under a duty to make practical arrangements for after-care prior to a patient's discharge from hospital, where such arrangements were required by a mental health review tribunal in order to enable a patient to be conditionally discharged from the hospital; see page 141 of the report of Hall. At pages 142 to 143, Scott Baker J noted that the view of Otton J was that if effective after-care services are to be provided, it is necessary for them to be planned and arranged before the patient leaves hospital....
To continue reading
Request your trial
-
R Sunderland City Council v South Tyneside Council Sf and Another
...OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT MR JUSTICE LANGSTAFF [2011] EWHC 2355 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Lloyd Lord Justice Richards and Lord Justice Elias Case No: C1/2011/254......
-
R (on the application of Cornwall Council) v Secretary of State for Health (Wiltshire Council and Others, interested parties)
...an underlying attachment. 72 Mr Lock also relied on R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 and R (Sunderland CC) v South Tyneside C [2012] EWCA Civ 1232, two cases about the meaning of the term "resident" in section 117 of the Mental Health Act 1983. The Hertfo......
-
R (Sunderland City Council) v South Tyneside Council
...her residence in Sunderland when she became an informal patient in the South Tyneside hospital and became resident there. The judge ([2011] MHLR 374) ruled that the question involved weighing various relevant factors to assess where a person had chosen to live for settled purposes; that SF'......
-
Table of Cases
...v Huntercombe Maidenhead Hospital [2005] 1 MHLR 379 182 R (on the application of Sunderland City Council) v South Tyneside Council [2011] EWHC 2355 (Admin) 191, 192 R (on the application of T) v Home Secretary [2003] 1 MHLR 239 122 R (on the application of TF) v SSJ [2008] 1 MHLR 370 120 R ......
-
After-care under Section 117 of the Mental Health Act 1983
...Borough of Hammersmith and Fulham [2011] EWCA Civ 77 and R (on the application of Sunderland City Council) v South Tyneside Council [2011] EWHC 2355 (Admin). Questions will undoubtedly still arise, however, as to the meaning of the term ‘is resident’. To what extent, for example, is someone......