Conditional discharge recall and s117 responsibility

[fsswdoc (James)]

Hi all,

Been reading a few posts about the impact of the Supreme Court ruling on Section 3 and CTO (interestingly this is still a topic of debate amongst if recall leads to redetermination of OR in 117).

[Some text moved to new topic: Imprisonment and s117 after Worcestershire decision.]

Another aspect is the impact of 37/41. My understanding is that 37 is the detention order and 41 is conditions. So if someone is conditionally discharged they are only subject to section 41. If they were recalled by the MOJ they would end up on a 37. Would this mean OR is reconsidered?

No one seems to have a definitive answer so any help appreciated.

[Richard_Rook]

re the second part of the question, the s37 hospital order in fact remains in force during conditional discharge, so recall doesn’t somehow trigger a new s37. See s42(2) & (4) MHA, which (in a slightly elliptical way) make clear that it is only absolute discharge that ends the s37.

As such, no reason why recall should require reassessment of ordinary residence for s117 purposes. (Any more that recall from a CTO should - for the same reason, ie the s3 remains in (suspended) force during the CTO - see s17D. Or, indeed, recall from s17 leave of absence.)

[Jonathan]

The first question is whether the original aftercare duty ends when the conditionally discharged patient is recalled. If it does end then a second question is how to assess ordinary residence at the point of recall.

In relation to the first question, I think that the original duty does end on recall, for similar reasons as I gave in relation to CTO revocation in the CTO & s117 responsibility topic. Essentially, this is because the patient is “no longer a person who has ceased to be detained and has left hospital but rather a person who is detained and is in hospital” (Worcestershire, para 44).

In relation to the second question, the Court of Appeal in R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712 decided that the patient was “still to be treated as ‘resident in the area’ of the same local authority as that in which he lived before the original hospital order was made”. But the Supreme Court in Worcestershire took a much harder line on what counts as non-voluntary when considering ordinary residence, and I think would probably have come to the opposite conclusion in a typical conditional discharge case.

[Richard_Rook]

Apologies, Jonathan, I hadn’t read the previous thread on CTOs and s117.

But having read it, I still think it would be unwise for authorities to move away from the previous understanding (based on the Wiltshire case you cite) that it is the place of ordinary residence before the initial detention which continues to determine s117 responsibility even after recall from conditional discharge, revocation of CTO etc.

That’s because there is nothing in the Supreme Court judgment that expressly overruled the decision in the earlier case. Nor anything that does so by necessary implication.

The fact recall/revocation means the s117 duty no longer applies, doesn’t
necessarily mean that it creates a new s117 duty come the next discharge from hospital. It is at least equally arguable that the s117 duty - or, rather, potential duty - created by the original S3, s37 etc continues, to be reactivated as or when necessary. This very point was left open by the Court of Appeal in the Wiltshire case (para 19) and not addressed by the Supreme Court in this case (as it didn’t arise on the facts)

And in any case, talk about “continuing” and “new” duties may be a red herring.

As Simon Foster pointed out, the real question is what “immediately before being detained” means in s117(3).

Clearly it means being detained in hospital pursuant to an application or order under a relevant section.

But where there hasn’t been an intervening new application/order (as there was in the Worcestershire case) does it mean the last such episode of detention pursuant to that application/order or just the initial detention ?

Both must be possible readings.

Inasmuch as it is ever possible to wedge the square peg of the drafting of s117 into the round hole of the rest of the Act, the latter strikes me as more consistent with the grain of the Act as a whole.

There isn’t really a concept of a “new” s3 on revocation of a CTO, or a “new” s37 on recall from conditional discharge - apart, as you say, from some resetting of renewal times and Tribunal rights in the case of CTOs. To the contrary, the Act makes clear that the underlying section has never gone away.

I find reading s117(3) as referring to each new episode of detention is particularly awkward in relation to s17 leave of absence. It is uncontroversial that the s117 duty can be triggered when people go on s17 leave and so, by the Supreme Court’s logic, it must cease to apply if they are recalled. But there is nothing anywhere else in the Act which hints at a de facto “new” detention arising on recall from leave.

But more importantly, the Supreme Court simply didn’t address this question and cannot be said to have answered it by anything it said on the question it did address. So pragmatically wouldn’t it be best to stick with the settled law (however shaky it’s foundation) ?

(Incidentally, another reason for sticking with the old understanding is that it avoids having to wrestle with the issue of the effect of recall, as opposed to revocation, of a CTO on s117.)

[Jonathan]

I’ll read your reply in detail before digging any deeper, so might change my mind yet, but here are a couple of comments in the meantime.

@Richard_Rook

That’s because there is nothing in the Supreme Court judgment that expressly overruled the decision in the earlier case. Nor anything that does so by necessary implication.

You’re right that it wasn’t mentioned, but what about this?

57. We think it clear in principle and from the examples given by Lord Scarman that the circumstances in which a person will not be regarded as ordinarily resident in a place because the person’s presence there is involuntary are narrow and are limited to situations where the person is forcibly detained. Along with kidnapping and imprisonment, compulsory detention under the 1983 Act would fall into this category. …

The typical conditional discharge with a residence condition wouldn’t count as being “forcibly detained”.

@Richard_Rook

The fact recall/revocation means the s117 duty no longer applies, doesn’t
necessarily mean that it creates a new s117 duty come the next discharge from hospital.

I think it does. I think the point of the Supreme Court decision, in relation to s3 etc, is that when you “cease to be detained” and “leave hospital” a new duty starts, and that duty ends when you are again detained in hospital, ad infinitum.

[Richard_Rook]

Yes, I take your second point. I’m wrong. They did decide that each discharge from a relevant section triggers a new s117 duty. I got lost in the idea of there also being some kind of underlying “potential” duty.

But what they didn’t decide (because it wasn’t relevant on the facts) was how that impacts on the application of the “immediately before being detained” test in 117(3) where the underlying authority for detention hasn’t been superseded by a new one. I still can’t see anything which determines that, because it wasn’t an issue. On the facts of the case there could be no doubt about what “being detained” meant. But in a recall case, there is room for doubt because it could plausibly refer to the last compulsory return to hospital pursuant to the relevant power, or to the original admission under that power. None of which was discussed, let alone decided. So Wiltshire appears to remain the nearest thing to authority on that.

On the first (voluntariness) point, I agree they might well have come to a different conclusion in the Wiltshire case on where the patient was ordinarily resident at the point of recall. But that would still leave open the prior question of whether it’s the point of recall that matters.

As I understood it, Wiltshire has been treated as authority that it is the point of original detention that matters in all conditional discharge cases (rather than just where there has been a condition of residence imposed in the interim). Perhaps it shouldn’t have been, because arguably it didn’t decide the point of principle at all, despite the way the conclusion was expressed in para 19.

But if it did decide the point of principle, then nothing in Worcestershire contradicts it. And if it didn’t then there’s no authority on the point at all. Pragmatically, I wonder if either is a good reason to change current practice.

[Jonathan]

@Richard_Rook

But what they didn’t decide (because it wasn’t relevant on the facts) was how that impacts on the application of the “immediately before being detained” test in 117(3) where the underlying authority for detention hasn’t been superseded by a new one.

You’re right that they didn’t consider conditional discharge (or CTO). But I don’t think in those cases that it’s clear (or, alternatively, relevant) that “the underlying authority for detention hasn’t been superseded by a new one”.

@Richard_Rook

On the facts of the case there could be no doubt about what “being detained” meant. But in a recall case, there is room for doubt because it could plausibly refer to the last compulsory return to hospital pursuant to the relevant power, or to the original admission under that power.

When you’re conditionally discharged from hospital you cease to be detained and leave hospital (so a s117 duty begins). When you’re recalled the s117 duty ends because you’re detained in hospital again (so that s117 duty ends). That’s essentially what the Supreme Court based their decision on. I am sure that it must be this new detention in hospital – i.e. the detention that ended the earlier s117 duty – that is being considered in the phrase “immediately before being detained” in s117(3).

@Richard_Rook

But if it did decide the point of principle, then nothing in Worcestershire contradicts it.

If you’d asked me 10 years ago, I’d have said that there is a new s117 duty but responsibility doesn’t shift because the patient wasn’t living anywhere sufficiently voluntarily. I think the second part of that is what the Court of Appeal said in Wiltshire. I think what the Supreme Court said on voluntariness does contradict that position, but maybe our answer is that what they said wasn’t really part of why they decided the case, so can be ignored and the earlier Court of Appeal decision followed. It seems like ages since I read either case so maybe that’s not correct!

[Richard_Rook]

On reflection, Jonathan, I think you must be right that the way the Court worded its judgment means that every episode of detention now triggers a new s3 duty even if the underlying detention authority remains the same. It makes no sense from a policy point of view, but s117 was ever thus. (Also means, I think, that the rules for which NHS pays - as set out in “Who Pays ?” - are once again out of alignment with the rules for LAs.)