Richards (by his Deputy and Litigation Friend Minihane) v Worcestershire County Council and another

JurisdictionEngland & Wales
JudgeMr Justice Newey
Judgment Date28 July 2016
Neutral Citation[2016] EWHC 1954 (Ch)
Docket NumberCase No: B30BS221,B30BS221
CourtChancery Division
Date28 July 2016

[2016] EWHC 1954 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre

2 Redcliff Street, Bristol BS1 6GR

Before:

Mr Justice Newey

Case No: B30BS221

Between:
Kenneth John Richards (By his Deputy and Litigation Friend Anne Minihane)
Claimant
and
(1) Worcestershire County Council
(2) South Worcestershire Clinical Commissioning Group
Defendants

Ms Katie Scott (instructed by Quality Solicitors Burroughs Day) for the Claimant

Mr Lee Parkhill (instructed by Worcestershire County Council Legal Services) for the Defendants

Hearing dates: 7 March and 10 June 2016

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Newey
1

I have before me an application by the defendants, Worcestershire County Council and South Worcestershire Clinical Commissioning Group, for these proceedings to be struck out.

Facts and issues

2

The claimant, Mr John Richards, sustained head injuries in a traffic accident in 1984. He was subsequently diagnosed as suffering from frontal lobe damage and bipolar affective disorder. By 2004, he had been detained in hospital on a number of occasions under the Mental Health Act 1983 ("the 1983 Act"). He was last detained between August and October of 2004. He was initially admitted under section 2 of the 1983 Act, but was detained under section 3 from 8 September.

3

While Mr Richards was in hospital, Dr Richard Crellin, a consultant psychiatrist and Mr Richards' responsible medical officer (within the meaning of section 34 of the 1983 Act), completed a supervision application under section 25A of the 1983 Act in respect of him. Section 25A has since been repealed, but at the time it allowed for an application (termed a "supervision application") to be made for a patient "to be supervised after he leaves hospital … with a view to securing that he receives the after-care services provided for him under section 117 below". Under section 25B(9), such an application was to be accompanied by, among other things, "details of the after-care services to be provided for the patient under section 117 below" and "details of any requirements to be imposed under section 25D below". Section 25D empowered the "responsible after-care bodies" to impose certain requirements "for the purpose of securing that the patient receives the after-care services provided for him under section 117 below". It can be seen from section 25D(3) that the requirements that could be imposed related to residence, attendance for medical treatment, occupation, education or training and access to the patient.

4

Section 117 of the 1983 Act, to which there was reference in section 25A, applies to, among others, persons who leave hospital after having been detained there under section 3. By virtue of subsection (2), the relevant NHS commissioning groups (or, previously, primary care trusts) and local social services authorities have a duty to provide such persons with "after-care services". At the relevant times, this expression was not defined in the legislation, but in R (Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin), [2011] PTSR 965 Hickinbottom J quoted this passage from a commentary on the 1983 Act (Jones, Mental Health Manual, 12th ed.):

"It is suggested that an after-care service is a service which is (1) provided in order to meet an assessed need that arises from a person's mental disorder; and (2) aimed at reducing that person's chance of being re-admitted to hospital for treatment for that disorder."

5

The supervision application completed in respect of Mr Richards explained that Dr Crellin was of the opinion that after-care under supervision was necessary for Mr Richards. A pre-printed sentence in the form stated that "details of the after-care services to be provided for this patient" were attached, but no such attachment has come to light. The form then continued:

"I consider that the patient should be subject to the following requirements:-

(1) To attend outpatient clinic at Studdert Kennedy [House] to see consultant or SHO [i.e. senior house officer] at least 3 monthly

(2) To attend Studdert Kennedy for assessment by consultant /staff grade or SHO if requested by any member of his care team

(3) To allow access to his CPN [i.e. community psychiatric nurse] or social worker, on request, with reasonable notification.

(4) To co-operate with his case managers care plan, as negotiated with him on discharge (eg 'buddies' etc)

(5) To attend Studdert Kennedy House daily if requested by community supervisor for a limited period (max 2 weeks)".

6

On 11 October 2004, Dr Crellin confirmed to Mr Richards in a letter that he was to be transferred onto a "Supervised Discharge Order". He listed items corresponding to those set out in the previous paragraph as "a critical part of [Mr Richards'] treatment plan". The fourth point was expressed as:

"To co-operate with your case managers plan (Rebecca Strange) as negotiated with you at the time of discharge from Section 3. This care plan will be agreed for you in writing at the time of discharge"."

7

Mrs Anne Minihane, who has been Mr Richards' property and affairs deputy (for the purposes of the Mental Capacity Act 2005) since 2012, has stated that she interprets the documentation from September and October of 2004 as "showing that the section 117 after-care plan, which the supervision application is in place to ensure [Mr Richards] receives, includes the care plan to be agreed for [him] with his care manager".

8

Mr Richards was discharged from hospital on 21 October 2004 on the basis that he would be subject to after-care under supervision. The bodies responsible for Mr Richards' after-care under section 117 of the 1983 Act were identified as Worcestershire County Council ("the Council") and Worcestershire Mental Partnership NHS Trust. The "care plan" that will presumably have been agreed between Mr Richards and his case manager has not come to light.

9

In the following years, Dr Crellin periodically confirmed that Mr Richards needed to continue to be subject to after-care under supervision.

10

Between November 2004 and April 2006, Mr Richards lived at the Community of St Antony and St Elias in Devon. He then moved into a home of his own, but with the benefit of full-time carers.

11

In September 2006, Dr Crellin wrote:

"The Supervised Discharge Order requires [Mr Richards] to attend Studdert Kennedy at least 3 monthly; to attend at our request in case we have any concerns about him; it requires him to give access to members of the mental health team or myself with appropriate notice; it requires him to cooperate with his care plan as devised by his case manager, Rebecca Strange.

Unfortunately, it cannot require him to take medication as prescribed. In the past [Mr Richards'] mental state has had to deteriorate for quite some time before people have been willing to detain him for compulsory treatment. This has sometimes had fairly significant negative impacts on his finances and his relationships. The Supervised Discharge Order is a very definite statement that this man can be at significant risk of exploitation and self-neglect, as well as potentially dangerous to others when well."

Mrs Minihane has said that her interpretation of this letter and the supervision application is that Mr Richards' "section 117 after-care plan includes the care plan devised by his care manager and the purpose of the supervision application is to ensure that he receives those services".

12

In 2009, Dr Crellin noted that Mr Richards had a "very comprehensive package of care, which is provided privately through the insurance settlement that was obtained following his accident".

13

Also in 2009, Dr John Vaughan, another consultant psychiatrist, succeeded Dr Crellin as Mr Richards' responsible medical officer.

14

By late 2012, steps were being taken to re-assess Mr Richards' needs with a view to setting up a new care plan that would be "carried out under section 117 Aftercare". In the event, the defendants implemented such a plan under section 117 of the 1983 Act from 7 June 2013.

15

The issue of funding Mr Richards' care was raised with the Council as long ago as 2006. In a letter to the Council of 22 June 2006, Mrs Christine Bunting, who then acted as Mr Richards' Court of Protection receiver and later became his property and affairs deputy, said:

"It would appear that Mr Richards is entitled to funding for the aftercare services he has received and which he is currently receiving."

In a further letter of 31 August 2006, Mrs Bunting sought "confirmation that the trust accept responsibility for the cost of Mr Richards' aftercare provision". On 16 May 2007, Mrs Bunting said in a letter to the Council that it "would appear that there is responsibility to fund aftercare services with effect from 29 th May 1999 when the first admission under Section 2 [of the 1983 Act] was converted to a Section 3". On 23 May 2007, however, the Council wrote that it was reiterating "its request for disclosure [of information] in advance of any acceptance of liability". Almost two years later, the Council said in a letter that it would be able to address the matters that had been raised when it had been provided with all of the information that it required.

16

The present proceedings were issued on 6 March 2015. They seek to recover sums totalling £644,645.87, which, it is said, were spent by Mr Richards' deputy on his behalf on providing him with care.

17

The claim is based on section 117 of the 1983 Act. It is Mr Richards' case that section 117 applied when he was released from hospital in 2004 and that, accordingly, the defendants had a duty to provide him with after-care services. He contends that...

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