But I have a few questions regarding 117 in relation to 37, 47 and 48.
The ruling mentions eligibility ends on imprisonment. This was not something people considered the case before this and leads to a very confusing situation when considering prison transfer sections. Would the person lose 117 on return to prison from hospital?
I think what they said about prison and ordinary residence makes sense – if you’re imprisoned somewhere there’s no real element of voluntariness.
But I can’t get my head round what they said about prison and the aftercare duty. It seems to have been based on an aside from a barrister in the case (see para 49). I can see why they decided that being re-detained in hospital under s3 etc brings a patient outside the s117 definition of “any person to whom this section applies”, but I don’t see why being detained in prison would end the aftercare duty. After all, section 45A, 47 and 48 are specifically mentioned in s117(1), and it makes sense to think that the aftercare duty begins when the patient ceases to be detained and leaves hospital, whether the patient goes to prison or the community. And what about an ex s3 patient who is imprisoned for a while? – I can’t see how any proper reading of s117 would mean that the aftercare duty is extinguished by the imprisonment.
I agree, Jonathan. I suspect the barrister (and therefore by accident the court) had his head back in the old days when the NHS (and I assume social services) simply didn’t provide services inside prisons.