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.)