Thanks I have noticed that other decisions by the LGSCO including 23 005 368 - Local Government and Social Care Ombudsman also directly link the reason for detention with eligibility for S117 in their findings and/or decision making, they have also gone off on a tangent about capacity. I’m very concerned about this obviously a lot of people use/rely on these published decisions when trying to fight for their own rights, the mis-information and willingness of the Ombudsman to argue the Council’s/ICB’s points within the framework they have set, without question is a huge problem even in cases were the final result/outcome may still be correct. I am curious of others thoughts on this.
See the findings of the case point 39)
This means the person needs enhanced specialised accommodation to meet needs arising from or related to their mental disorder. The need must be as a direct result of the reason the patient was detained.
Also see -
The Council and the ICB said they believe Miss D does not lack capacity to make decisions about her accommodation and care and support arrangements. They referred to a visit completed on 4 March 2023 and the view from the officer that Miss D did not lack capacity. However, a copy of the assessment completed on the same date (and previous assessments) states, “[Miss D] has been assessed as lacking capacity in relation to being accommodated at [her current home]”. This creates confusion and the Council and the ICB should have formally assessed Miss D’s capacity to make this specific decision. I have not seen evidence to show they did this and this is fault. As a result, I cannot say, on balance, whether Miss D has the capacity to make an informed decision to stay at the property.
The evidence suggests it is more likely than not Miss D did not have a choice about her placement in 2010. A DoLS was in place and care records state she lacked capacity to make the decision about her placement. Therefore, it is likely, on balance, Miss D was placed (from 2010) in the accommodation on an involuntary basis because of her original condition.
This case does deal with an extended period of time, starting before the Care Act until years after it, but even so it seems they are adding additional tests for their decision/reasoning after that period, or at least it is extremely unclear if that is not what they intended.
The part about lacking capacity is something else pulled out of thin air by the judge in Afework – requiring that “[t]he ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition”. In the Hansard debate you posted above it was noted that, in relation to s117, Mwanza was a non-binding permission decision. The same applies to Afework, I think.
Yes, that case was also before the care act and also the inclusion of S117A of the MHA, I think the fact they specifically allow S117 patients to have a choice, express a preference in terms of their accommodation to a certain extent is obviously inconsistent with the idea that care should be required to be ‘involuntary’ or the individual should lack capacity to make decisions about their own care. Care Act 2014Mental Health Act 1983 Also as you say the addition of the extra test in Afework doesn’t seem to be based on anything as far as I can tell, certainly not in the way the law was written. Problem is people/councils are still using/quoting it, over a decade later. I am trying to find as much as I can on this, in order to leave as little wriggle room as possible. If I could find something that directly addresses the ‘requirement’ for care to be ‘involuntary’ to be funded under S117, and/or the need for the individual to lack capacity/be unable to consent to care for S117 funding that would be ideal, but so far no luck.
The problem is that Mr Justice Mostyn, the judge in Afework, stated the ‘involuntary’ etc conditions ‘as a matter of law’, but without any reference or citation, so it’s very hard to know what he based them on. There is a little support in W v Doncaster MBC but, not expressed as definitively as Mostyn does. Consequently we have a judicial pronouncement which cannot easily be dismissed as obiter but which does not give the reasoning or the means to challenge it.
It’s clear to me that the amendments to s.117 brought in by the Care Act supplanted the requirement for aftercare to be based solely on the ‘original’ mental health condition. To that extent I am sure that LGSCO, who persists in trotting this out, is open to challenge. The ‘involuntary’ bit, which I am equally sure is wrong and does not arise from the section itself, is much harder to get rid of. An appeal to the CA would probably do it, but I doubt that anyone has the energy or resources to bring one. Pity!
Thanks for your reply. What are your thoughts on the addition of S117A that gives those who have S117 rights the right to choose their accommodation to a certain extent and the fact that this seems to contradict any assertion that the accommodation needs to be given on an ‘involuntary’ basis? Also it seems notable that this ‘involuntary’ requirement doesn’t seem to have been applied to any other type of aftercare such as therapy or medication etc.. I don’t think anyone would try and make a case that if a patient agreed/or was able to agree to that kind of treatment they as a result shouldn’t be funded under S117.