Does anyone have any particular experience with Responsible Local Authorities ending 117 entitlements for a patient who’s qualifying section was s.37/41 and is later recalled to hospital. The RLA now holding that aftercare period has ended and a new detention period has begun which means that the responsibility is now transferred to a new area. Some LAs are holding the opposite, i.e that the qualifying detention has never ended? I don’t think there is case law yet, but please direct me if you are aware? Anything similar in CTO recalls?
I think our tentative solution was that the relevant question is whether the patient has ceased to be detained and has left hospital (the wording in s117 relied on in the Worcestershire judgment) and that this is the case for CTO and conditional discharge.
There’s Court of Appeal authority (which was never addressed in Worcestershire) that a period of conditional discharge specifying residence is not “voluntary” therefore cannot satisfy the R(Shah) test for Ordinary Residence. If that’s still true (I’m not convinced it would hold up today), then the responsible LA would remain the one they were living in directly before they were made subject to the S.37/41.
I see both sides - I think practitioners just need to be on the ball to ensure that all these disputes are referred under the dispute resolution regulations within 4 months.
Regarding a CTO recall, our legal department advised that this would not change S117 responsibility, can’t recall the relevant section(s) of the reference guide to the mental health act.
Slightly different but, when I sought legal advice on someone under a S37 guardianship who was placed in another LA area being detained on a S3, the advice was that the S37 meant the placement wasn’t voluntary and so the S117 responsibility remained with our LA.