Court of Appeal case provides further clarity on the Mental Health Act 1983 and the interplay between s.117 after care and s.17 leave of absence.

On 20 December 2018, the Court of Appeal handed down judgment in CXF (acting by his mother and litigation friend) v. Central Bedfordshire Council and NHS North Norfolk Clinical Commissioning Group.

Background

The applicant, CXF, was an adult male with an autistic spectrum disorder and severe learning difficulties, detained under s.3 Mental Health Act 1983 (“MHA”) at a secure hospital in Norfolk, some 120 miles from his family home.

CXF was granted regular leave of absence under s.17 MHA for purposes of escorted day trips into the community. Such leave was only ever day leave and CXF was at all times escorted by hospital staff. Once a week, CXF would also be accompanied by his mother, who would travel the not insignificant journey from the family home, by car, to visit her son.

The appeal was concerned with a decision by the respondents not to fund the cost of CXF’s mother’s travel as an aftercare service pursuant to s.117 MHA. The applicant submitted that whilst on leave, CXF was a person eligible for aftercare services pursuant to s.117(1) MHA, that the services provided to him whilst on leave constituted aftercare services as defined at s.117(6) MHA, and that CXF’s mother’s travel costs should be reimbursed pursuant to s.117 as a result.

Section 117 MHA

Section 117(1) states that a person becomes eligible for s.117 aftercare when, having been detained under relevant provisions of the MHA, they subsequently cease to be so detained and leave hospital.

Aftercare services for purposes of s.117 (“s.117 aftercare”) are defined at s.117(6) MHA as services which both:

• meet a need arising from or related to a person’s mental disorder; and
• reduce the risk of a deterioration of the person’s mental condition and so also reduce the risk of the person requiring admission to a hospital again for treatment for mental disorder.

The judgment

The appeal was dismissed by the Court.

In her considered judgment, LJ Leggatt applied established principles of statutory interpretation and concluded there was not “any need nor any scope” for CXF to be provided with s.117 aftercare.

She concluded that a proper interpretation of s.117 meant CXF remained at all times a detained patient and that he had not, at any point, left hospital. As such, he was not eligible for s.117 aftercare. Furthermore, no service provided to CXF whilst on leave could properly be defined as s.117 aftercare, precisely because CXF remained at all times a detained patient.

The Court readily accepted that there will be cases in which a patient granted leave of absence from hospital under section 17 does “cease to be detained” and “leave hospital” within the meaning of section 117(1) so as to become eligible to receive after-care services during the period of their absence.

They also accepted that is it not necessary, in order to trigger section 117, that the person concerned should have been “discharged” from hospital. They saw no reason why section 117 should not apply to a person who is living in the community on leave of absence – either full-time or for part of the week without having been conditionally discharged from hospital under section 42(2) or 73(2) of the Act, let alone “absolutely” discharged from the liability to be detained.

Worth noting is that LJ Leggatt concluded that the MHA Code of Practice, which is statutory guidance, will not assist the interpretation of s.117, because its publication post-dated the coming into force of the original text of s.117 in 1983. The position of statutory guidance for purposes of statutory interpretation, LJ Leggatt explains at para 24 of the judgment, is “analogous…to that of statutory regulations or other delegated legislation, which can only be used as an aid to the interpretation of the Act under which they are made if they were contemporaneously prepared”. This was despite arguments raised to the contrary given the judgment in Munjaz. In this regard LJ Leggatt stated:

“the questions in the Munjaz case was what weight a hospital authority should give to the Code of Practice when deciding how to exercise a function under the Act. There is nothing in the judgment of the House of Lords which suggests that the code can legitimately be treated as guidance on what the language of the Act itself means”

LJ Leggatt upheld the distinction between a patient enjoying temporary “leave from” hospital and a patient actually having “left hospital” made by the judge at first instance as a matter of ordinary language, the latter being “commonly used to refer to discharge from the care of a hospital, rather than simply leaving the premises for any period of time or reason.”

Although the judgment was focussed on the applicant’s eligibility for s.117 aftercare, LJ Leggatt concluded (at paragraph 48)that even if the day trips were capable of constituting aftercare services, it is difficult to see how this could possibly have enabled the claimant’s mother to recover her travel costs, there being no suggestion that she was authorised or required to provide any such services on behalf of either respondent.

Analysis

The immediate effect of the judgment is greater clarity on eligibility for, and scope of, s.117 aftercare services. In determining whether a patient granted s.17 leave of absence has ceased to be detained and/or left hospital for purposes of s.117, the length and intended purpose of the leave will be central. This clarity will be welcomed by commissioners, particularly since commissioning responsibilities for inpatient care and s.117 aftercare do not always fall to the same commissioner.

More broadly, the judgment emphasises the fact that proper statutory interpretation should focus on consistency in the use of terminology and the underlying purpose the statute is intended to achieve. This is encouraging for commissioners, since it is these considerations that typically drive real life practices.

There is a cautionary tale here, too. Commissioners often rely on statutory guidance to assist in interpreting underlying legislation and guide practices. This judgment confirms that statutory guidance is just that – guidance – and it cannot always be relied on when it comes to statutory interpretation. As such, commissioners should endeavour to ensure important or contentious decisions are based on a correct interpretation of the underlying legislation and avoid making such decisions informed by statutory guidance alone.

The full judgment can be accessed for free by clicking here.