The High Court has dismissed a claim for judicial review in which the claimant was seeking funding for the cost of fuel for his mother's visits to him at hospital on the ground that they constituted “aftercare services” under section 117.
This case provides an important decision for what many clinical commissioning groups and local authorities already held to be true, that section 117 only applies when a person actually leaves hospital (either permanently or on a temporary trial basis).
Briefly, the claimant was an 18-year-old detained under section 3 of the MHA 1983 in a hospital some 120 miles from his family home. His mother would make the 240 mile round trip weekly to visit her son in hospital in order to accompany him during short periods of daytime leave arranged pursuant to section 17. The journey caused his mother real financial hardship.
The claimant argued:
- Whenever a detained patient is granted leave of absence under section 17 and leaves the hospital pursuant to that leave of absence, the duty to provide aftercare services under section 117 is triggered, no matter how short the period of leave may be, and regardless of whether the patient remains in the custody of hospital staff during the period of leave.
- His mother's presence during section 17 leave of absence was a therapeutic benefit necessary to prevent a deterioration in his condition, such that the cost of facilitating her visits must rightly fall to the relevant local authority and CCG with joint responsibility for the section 117 aftercare provision. In arguing this point, the claimant relied on established case law that has confirmed that local authorities cannot charge for aftercare services.
Miss Dinah Rose QC, sitting as a Deputy High Court Judge, was not persuaded.
She said that it was not correct that the section 117 duty to provide aftercare services is triggered whenever a patient detained under section 3 is granted section 17 leave. In her mind, the question was whether, on the facts of the case, the patient had ceased to be detained and left hospital.
She noted the provisions of the MHA Code of Practice and in particular paragraph 33.2 which provides that “section 117 requires…..aftercare to patients detained…. who then cease to be detained. This includes patients granted leave of absence under section 17….”
Miss Rose QC noted that a person “may remain "detained" in a particular hospital even though he is permitted to leave for a short time. This conclusion may be particularly apt if he remains under the continuous supervision and control of hospital staff...”
In giving her judgment, Miss Rose QC was careful to distinguish this case with an earlier case, Watson, where a patient was granted section 17 leave of absence to a trial placement in a community nursing home for a period, and where section 117 was found to apply.
You can read the decision here.