Homelessness and S117 - can OR change during a s2 admission before a s3 for the purpose of s117

Law and practice Mental Health Act
1

Dear Colleagues,

I understand ‘qualifying detention’ to be sections that give rise to s117 aftercare, however for the purpose of applying the Worcestershire judgement when working out aftercare, does the ‘immediately before detention’ refer to quite literally the qualifying detention or if someone was placed on a s2 before, for example, a s3, would it be where they were living before the initial s2 admission?

I ask this mainly in the context of someone with no fixed abode who has been moving between various localities or someone who has lost their placement whilst on a s2 admission.

many thanks

2

Hi there, my interpretation is that it is about the application of the Shah Case ‘test’ to determine the actual location of their community arrangements before going to hospital and their subsequent detention on a qualifying section.

3

As confirmed in Shah (and reiterated in Worcestershire at paras 56–57), periods of compulsory detention cannot create ordinary residence, since residence must be “voluntarily adopted”. For the purposes of s.117(3), the relevant local authority is therefore the one where the patient was ordinarily resident immediately before the most recent unbroken period of detention, which begins with the initial s.2 admission.

On the scenarios you raise:

  • No fixed abode: In such cases, s.117(3)(c) applies. That said, because ordinary residence can be established even over a very short period if it is for “settled purposes”, true NFA situations are rarer than they first appear.

  • Placement lost during s.2: If the person was ordinarily resident somewhere immediately prior to admission, that authority remains responsible under s.117(3)(a), notwithstanding any loss of accommodation during the detention.

If you’re able to set out more specifics, that might help clarify which provision is engaged in your example.

4

Hi there, In the case of R v Worcestershire County Council v Essex County Council [2014] which held that ‘immediately before being detained’ in s.117(3) includes detention under s.2 which precedes and leads to a subsequent detention under section 3. It was commented at paragraph 14 of the judgment that: “The detention referred to is detention under the MhA, that being the trigger for the aftercare obligation. It is required to be ignored since otherwise the place of detention would almost always fix the place of residence, yet the section refers to the place of residence as a matter separate from the place of detention. This reasoning in my view extends to a period of detention for assessment under s.2 MHA which precedes and leads to a subsequent detention under s.3 MHA. Although s.117 refers to persons “who are detained under s.3 above” and then released, if there has been an immediately preceding detention under s.2 for assessment that is part of the process of initiating the detention under s.3, and if the intention of the Parliament was to exclude the place of detention under s.3 it would make no sense to include the place (likely to be the same) of prior detention for assessment’. Therefore, one could consider where the person was resident before their s.2.

5

It is helpful to consider the case in respect of the relevant period, which is the period of detention, being continuous, within which the qualifying order was made.

A patient’s relevant period may have begun long before the qualifying order is made, with a simple arrest, s.136 detention, s.2 or other form of detention, but as long as that period of detention is continuous, the material time for purposes of establishing residence is when the relevant period began.

If there had been an earlier break in the period of detention, for example, a period of voluntary admission, as is sometimes the case in long treatment stays, then the relevant period starts when a detention is re-imposed, almost invariably a qualifying one; and on those occasions, it will be necessary to consider their residence at that time, and not when they first came into hospital.

It is on those occasions that patients in my experience most commonly lose their original addresses, for all sorts of reasons, and risk becoming resident at the material time in the hospital where they were voluntarily admitted immediately prior to the new order being imposed, as per the judgement in Sunderland.

Patients who were genuinely of no fixed abode at the material time are the responsibility of the area where they are sent on discharge (s.117.3.c).

If nobody will accept the discharge at that point, then the local authority where the patient actually is, so usually for the area of the hospital itself, may have to accept practical responsibility under Reg. 2(3)b of the Care and Support (Disputes Between Local Authorities) Regulations 2014.

None of this is perfectly described in statute, it has to be said, even though s.117(3)a speaks of immediately before being detained, and not of immediately before being detained under a qualifying section. Worcestershire I do not think has tidied this up, continuing to speak of detention under the qualifying section (para.44 & 53) and not about when the period of detention within which the qualifying order was made began.