JG, section 117 and ordinary residence: recent case law from the Supreme Court

 

S.117 of the Mental Health Act 1983 stipulates the important duty for local authorities and the NHS to provide aftercare for patients who are ordinarily resident in their area and have been detained for treatment under s.3 (as well as some Part 3 sections relating to patients convicted of criminal offences).

Over the years, local authorities have often sought to shift this responsibility. This is usually because the cost of providing residential aftercare can be extremely expensive. I have covered some of the case law arising from these disputes on the Masked AMHP blog.

Often these disputes have arisen due to the interpretation to the term “ordinarily resident”.

In order to reduce the need for local authorities to go to the High Court to challenge decisions relating to aftercare, the Care Act 2014 amended s.117 MHA with the intention of clarifying the definition of “ordinarily resident”.

S.117(3)(a) laid this responsibility on the services where:

 “if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident”.

This duty then continued until it was agreed that there was no further need for aftercare services to be provided.

This was generally interpreted as meaning that the local authority where the patient was living at the point of their first detention under s.3 retained the responsibility for s.117 aftercare regardless of where the patient might be living at the time of any subsequent detention under s.3.

This brings me to the case of JG, who was the patient for whom a dispute arose between Worcestershire and Swindon over who was responsible for providing aftercare in her case.

JG had a diagnosis of schizoaffective disorder and was ordinarily resident in Worcestershire. In March 2014 she was detained under s.3 in that area.

As it was deemed that she lacked the capacity to make decisions about where she should live following discharge, it was arranged for her to be placed in a care home in Swindon, near to where her daughter lived.

In May 2015 she was admitted to a hospital in Swindon under s.2 MHA, and this was subsequently detained under s.3.

A dispute arose between Worcestershire and Swindon over where she was “ordinarily resident” at the time of her second detention under s.3, and therefore who was then responsible for aftercare.

The dispute was first considered by the Secretary of State, who concluded that JG was ordinarily resident in Swindon and therefore they were the responsible local authority. This was in accordance with guidance on interpretation of ordinary residence.

Swindon then requested a review of this decision, at which point the Secretary of State reversed the decision, concluding that Worcestershire was in fact still responsible.

Guess what? Worcestershire went to the High Court to challenge this decision, and in 2021 the judge overturned this decision, reasoning that:

“JG was ordinarily resident in Swindon immediately before the second detention so that the second discharge triggered a duty on Swindon to provide after-care services for her; that it could not have been intended that Worcestershire’s duty to provide after-care services consequent on the first discharge should continue in parallel once Swindon’s duty had been triggered; and that section 117 should therefore be construed as imposing the duty to provide after-care services on Swindon alone from that point.”

But that wasn’t the end of it. This time the Secretary of State appealed against this decision to the Court of Appeal. They found that Worcestershire’s duty to provide aftercare was still continuing, despite the subsequent s.3 detention, since no decision had been taken that aftercare was no longer required.

So of course Worcestershire then appealed to the Supreme Court, who heard the appeal in April 2023 and published its decision on 10^th August 2023.

Worcestershire’s reasoning was that its duty to provide after-care services for JG under section 117 ended upon the second discharge, or alternatively that the duty ended at the start of the second detention.

The Secretary of State’s reasoning was that Worcestershire’s placement of JG in a care home in Swindon did not change where she was ordinarily resident, which as a matter of law continued to be in Worcestershire.

The Supreme Court concluded that:

"the duty under section 117(2) to provide after-care services automatically ceases if and when the person concerned is detained under section 3 … In this case, therefore, Worcestershire’s duty to provide after-care services for JG ended upon her second detention. Upon the second discharge a new duty to provide such services arose. Which local authority owed that duty is determined by section 117(3) and depends on where JG was ordinarily resident immediately before the second detention."

So in the end, it was concluded that Swindon was, after all, responsible for providing aftercare for JG.

Perhaps what this case highlights is the importance of legislators to ensure that the wording of legislation and statutory guidance should be as clear and as free of ambiguity as possible.

Will this decision finally put an end to such disputes, which in themselves can cost local authorities a lot in legal expenses and possibly places the subjects of the appeals in a limbo lasting several years?

I wouldn’t hold my breath.

The Draft Mental Health Bill 2022

The Mental Health Act 1983 has been through a long process of review. Wessely’s Review was published in December 2018, and the Government White Paper was published in January 2021.

Finally, in June 2022, the Draft Bill has been published.

I’ll just say now that although the Bill states that this will be known as the Mental Health Act  2022, it does not replace the 1983 Act, it merely amends it, in the same way as the Mental Health Act 2007 amended the 1983 Act.

So, how much of the 2021 White Paper has made it into the Bill?

I’m not going to go through the minutiae of the amendments, but I will concentrate on what I would regard as some of the more significant changes. I’ll also look at some of what has been left out.

To begin with, s.1 MHA has been radically changed. There is now a clear differentiation between “autism”, “learning disability” and “psychiatric disorder”, with associated detailed definitions. These are:

“autism” means a lifelong developmental disorder of the mind that affects how people perceive, communicate and interact with others;”;

“learning disability” means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence;”;

“psychiatric disorder” means mental disorder other than autism or learning disability;”.

There is also a new s.1A, defining “appropriate medical treatment”. Appropriate medical treatment must have “a reasonable prospect of alleviating, or preventing the worsening of, the disorder or one or more of its symptoms or manifestations,” and must be “appropriate in the person’s case”.

Going on to s.2, relating to detention in hospital for assessment, the grounds for detention have been significantly changed. They now read:

“(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period)

(b) serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained; and

(c) given the nature, degree and likelihood of the harm, and how soon it would occur, the patient ought to be so detained.”

The grounds for detention under s.3 for treatment are also subject to amendment. There are now 5 grounds:

“(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital,

 (b) serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment,

(c) it is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to receive medical treatment,

(d) the necessary treatment cannot be provided unless the patient is detained under this Act, and

(e) appropriate medical treatment is available for the patient.”

There are other significant changes to s.3, in particular the duration of detention has been halved to 3 months initially.

And perhaps most notably, s.3 can no longer be used at all for people with autism or learning disability, unless they also have a psychiatric disorder.

The Government notes that:

This change ... seeks to end the practice of patients in this group being detained under the MHA in unsuitable long-stay wards and is supported by the guiding principle of least restriction.

There is much in the draft Bill concerning autism and learning disability.

There is a whole new Part 8A, relating to people in England (but not Wales, apparently) with autism or learning disability. This introduces a duty to have regular care and treatment review meeting for anyone with autism or learning disability detained under s.2, (and education for children and young people) as well as the preparation of a report setting out the needs identified, and recommendations made, at each meeting,

There will also be registers set up of all people with autism or learning disability who are identified at being at risk of detention under s.2.

There will also be a legal requirement for care and treatment plans for all patients detained under s.2 or s.3.

There are new criteria for the use of Community Treatment Orders, designed to tighten up their use.

Informal patients will now also be entitled to have an Independent Mental Health Advocate (IMHA).

As expected, police stations and prisons will no longer be regarded as places of safety, only a hospital can now be considered a place of safety.

One major, and very welcome, change will be the abolition of the role of the Nearest Relative, to be replaced by the role of Nominated Person.

For a patient of 16 or older, the Nominated Person has to be at least 16 years old, but for a younger patient they would have to be 18 or older.

As well as being consulted for s.2 and s.3, they also have to be consulted when at CTO is being considered.

A patient will have to nominate the person in writing, witnessed by a health or care professional or IMHA, the Nominated Person has to agree to being nominated, both the patient and Nominated Person will have to sign the statement, and both the patient and the Nominated Person have to have the capacity to make the nomination, or to agree being nominated.

There will be a new role for the AMHP, where a patient lacks capacity to nominate a person, and has not previously appointed a Nominated Person. In such a case, the AMHP may themselves appoint a person to act as the patient’s Nominated Person for the purposes of the Act.

In the past, if a Nearest Relative objected to a s.3 or guardianship application being made, then the patient could not be detained, unless the AMHP went to court to have the NR displaced.

Now, an application can still be made, but only if the AMHP produces a report certifying that, in the opinion of the AMHP, the patient, if not admitted for treatment or received into guardianship, would be likely to act in a manner that is dangerous to other persons or to the patient

There appear to be some notable omissions, one being no mention of revision to the Guiding Principles, which it had been recommended should be included in the Act rather that just in the Code of Practice.

There is also no introduction of advanced choice documents – reference in the Bill to advance decisions refer to the Mental Capacity Act.

This is an overview of just some of the main changes proposed to the 1983 Mental Health Act. Most, if not all, the changes in the Bill will be welcomed by professionals involved in facilitating the Act.

However, it has to be said that this is only the first Draft; it will have to be debated by both the Commons and the Lords, and who knows what amendments may be made

The 2007 Act went through many drafts before reaching the Statute books, and was considerably altered in a process that took most of a decade.

 And with the current turmoil precipitated by the defenestration of the Prime Minister, who knows if priority will be given to seeing it through to Statute.

Thinking out of the Box: Reminiscences of an Out-of-Hours Social Worker #5

Throughout the 1980’s and 1990’s, as well as being a social worker during the day, I also used to do shifts on the emergency out of hours service.

You were pretty much on your own, based at home, receiving calls via a deputising service.

We received every conceivable type of request, ranging from referrals for child protection, through to Mental Health Act assessments and requests for night sitters for elderly people.

You also got requests that were so out of the ordinary that they didn’t readily fit into any category, and required finding solutions by thinking out of the box.

One night, I was contacted by the local police about a couple of New Age travellers, who lived in a traditional horse drawn caravan and would tour the commons and heaths of the county, camping for a few nights at a time before moving on.

They didn’t bother anyone, always clearing up their site before leaving, and no-one bothered them.

Until one night. They had a fire in their caravan, and although they had managed to rescue most of their belongings, and the caravan had been burnt out.

The police were asking for assistance to sort them out with emergency accommodation. This was complicated by the fact that they had two horses and a dog.

As they didn’t have any children, and could not be regarded as vulnerable, social services did  not really have any responsibility for assisting them.

In any case, finding accommodation for a couple of able bodied people at such short notice, late in the evening, was a non starter. And finding emergency accommodation for two horses, not to mention a dog, was virtually impossible.

But being a social worker, I still felt that I should do something if I could. It called for some lateral thinking.

I had an idea. I consulted my file of useful resources that I had compiled over the years, and started to make phone calls.

Eventually, I got hold of a local voluntary organisation and had a chat with them. They were able, and willing, to help. It was arranged that they would provide a large tarpaulin and deliver it to the site.

The travellers were therefore able to construct a bender using the tarpaulin and remain on the common, at least for the time being. This meant that they could also continue to look after their dog and their horses. Problem solved.

A Christmas Eve Mental Health Act Assessment

 

What every AMHP dreads: being on duty on Christmas Eve and getting a MHAA request just as you’re finishing.

When Love Goes Wrong 2: Psychotic or Delusional Disorders

 

Psychotic or delusional disorders can manifest in two basic ways:

Morbid jealousy (also known as Othello Syndrome) is when a person holds a strong delusional belief that their spouse or sexual partner is being unfaithful in the absence of any actual evidence.

Jealousy is a very common emotion, but when jealousy is entirely baseless then it can become pathological in nature. This can range along a spectrum between essentially normal feelings of jealousy, perhaps arising from an individual’s basic sense of insecurity or personal inadequacy, through to full blown psychotic illness.

Morbid jealousy is likely to take the form of constantly checking what the person’s partner is doing at any time of the day. The person may look on their partner’s mobile phone to see who they’ve been ringing or texting. They may interrogate them during the evening about what they’ve been doing, who they’ve been talking to.

This can be obsessional, but essentially non-psychotic in nature and therefore amenable to treatment, in which case, a talking therapy such as Cognitive Behavioural Therapy, can be effective in tackling and addressing the individual’s personal insecurities and anxieties. However, if it is truly delusional in nature, then it can be much more difficult to treat. It can also extend into stalking behaviour.

De Clerambault’s Syndrome (also known as erotomania) is a delusional belief that the person is in love with another, and that that love is reciprocated. This seems to occur most commonly in women. Usually, the subject of the person’s attention is only a casual acquaintance, and the affection is entirely unreciprocated. This belief can also lead to stalking behaviour.

I knew Sian for over 10 years. She provides an interesting illustration of both these disorders. Sian was in her late 20’s when she came to the attention of psychiatric services. She has first assessed in the court cells 12 years previously, having been arrested for harassment of her ex-husband and his partner. Although this assessment was inconclusive, there were a dozen further incidents of harassment over the next 6 months.

Things finally came to a head when she was arrested after being found hiding in the wardrobe of her ex-husband’s bedroom, having broken into his house. She was arrested on suspicion of burglary, and assessed by a psychiatrist in police cells, who recommended an assessment under Sec.35 MHA. Following this assessment, she was detained in hospital from Court under Sec.37.

I first became involved with Sian when she appealed to the Hospital Managers against her detention. It is a comparatively little known aspect of the Mental Health Act that, although a patient cannot appeal to a Tribunal against Sec.37 in the first 6 months of detention, they do have the right to appeal to the Managers of the hospital, who can, if they wish, discharge the patient.

I had to provide a social circumstances report and appear at the Hearing. This is when I discovered her story.

Sian had led a completely normal life until her late 20’s. She was married and they had one daughter. After a few years of marriage she became more and more suspicious of her husband, coming to believe that he was having an affair. She began to check his whereabouts, ringing him up constantly to find out what he was doing and where he was, and searching through his clothes and belongings. This behaviour began to put increasing strain on their marriage. In an effort to make him jealous and win back his affection, Sian had a brief affair with a friend of her husband. This only succeeded in finally ending the marriage.

On an impulse, Sian left the matrimonial home, leaving her daughter in the care of her husband. Her husband applied for residence, which was granted. After a year or so, her husband obtained a divorce and his new partner moved in. This provoked the increasingly abusive and violent attacks by Sian which eventually resulted in her being arrested, and spending a week or so on remand in prison until she was admitted to hospital.

When I interviewed Sian, she was still wearing her wedding ring, even though they had been divorced for a year and her ex-husband was now engaged to his new partner. She denied that it was possible that their relationship was over, and could not believe that her ex-husband could be having an intimate relationship. They were just friends, and Sian was certain that if she could cause a rift between him and his fiancée, then he would return to her. These beliefs were completely unshakeable.

Sian was not discharged by the Managers, and remained in hospital for about 4 months, during which time she was treated with antipsychotic medication and appeared to make a reasonable recovery, gradually realising that it was futile to believe that she and her ex-husband could ever get back together again. She was discharged from hospital with the rather vague diagnosis of “delusional disorder”.

Over the next few years Sian seemed to manage fairly well, getting a flat, and a job as a shop assistant, although she had a tendency to avoid contact with her care coordinator, and at times stopped taking her medication. At such times, she would become delusional again, invariably believing that someone she had served once or twice in the shop was in fact in love with her. She would then start stalking him, finding out where he lived and staking out his house. It was usually possible to persuade her to restart her medication, and these beliefs would then evaporate.

Sian’s most recent admission to hospital came out of the blue. She had been engaging well with the CMHT, was clearly taking her medication, and I had begun to explore with her some of the issues from her past. She had enduring guilt about abandoning her daughter, as she saw it, and I began to analyse her history and the breakdown of her relationship with her husband, in the context of the insidious onset of a psychotic illness over which she had no control. She seemed to have good insight into this, and it appeared to be reassuring her.

Then suddenly, over the course of two weeks, Sian began to behave increasingly bizarrely. She threw out all her clothes, resigned from her job, destroyed all her identity documents, and declared to her daughter, who was now an adult, that a man she had met in a pub a few days previously was her soul mate and one true love. She presented as highly distressed, agitated and tearful, with pressure of speech. Her daughter called out the Crisis Team, as it was at the weekend, and they assessed her and admitted her informally.

After her admission, I spoke to her daughter and discovered that Sian had only met this man twice, and only in the company of others, and that he had no romantic interest in her.

It took several months for her to return to normality, but eventually she was able to recognise that this wonderful, perfect relationship was entirely delusional.

When Love Goes Wrong 1: Adjustment Disorders

Love can sometimes give rise to bizarre and irrational behaviour. Indeed, it has been argued that since the definition of a delusion “is a sustained belief that cannot be justified by reason”, then being “in love” with someone could itself be regarded as a delusional state.

There are a number of well defined psychiatric conditions that could be said to arise from, or are manifested as, love and issues with relationships. Some of them are sudden and intense but fleeting, while others may be persistent, insidious and difficult to resolve. Either way, they can present as acute psychiatric emergencies requiring formal assessment under the Mental Health Act.

I would divide these disorders roughly into two types: adjustment disorders, and delusional or psychotic states. Today I’ll look at adjustment disorders.

A good definition of an adjustment disorder is “an emotional and behavioural reaction that develops within 3 months of a life stress, and which is stronger or greater than what would be expected for the type of event that occurred”. This can frequently be precipitated by the ending of a relationship, and in my experience, seems to occur more commonly among men.

Anybody can feel upset, bereft, or even suicidal when a loved one wants to end their relationship. Most people can fairly quickly accommodate and adjust to it, but some people have extreme and bizarre reactions, or develop a complete refusal to accept the reality of the situation. Here are a few examples from my professional experience.

Carl worked on a pig farm. One day he went to the local police station in a state of agitation and distress, saying that he had killed his wife. The body could be found on the farm, buried in a heap of pig slurry. He said he’d been clearing the slurry when his wife’s body had emerged. Although he had no memory of it, he concluded that he must have killed her.

The police immediately investigated, searching through tons of pig manure, but did not find the body of Carl’s wife, or indeed of anyone else.

They did manage to find out what happened. She was safe and well, having left Carl a few weeks previously and gone to live somewhere else in the country. Nothing untoward had happened between them.

It was as if Carl found the idea of his wife being dead more bearable than the fact that she had left him. When Carl was confronted with this, he began to recall what had actually happened, and his distress gradually abated over the next couple of days.

Colin had been married for 15 years. One day, his wife unexpectedly told him that she did no longer loved him and wanted to leave. He went off to work as usual, but when he returned home in the evening, he was shocked to find teenage children in the house whom he did not recognise. He also did not recognise his wife. He demanded to know what they had done with his young wife and infant children.

His wife called the on call GP who sedated him.

I saw Colin with his wife the following morning. The crisis was over by then. It appeared that his brain’s response to the news of the end of their relationship had been to develop a form of hysterical amnesia, where he had “lost” the previous 10 or so years, taking him back to a golden past in which he and his wife had young children and a happy marriage.

Overnight, the amnesia had worn off, and he was reluctantly beginning to accept the reality of the situation.

Chris presented to the A&E department one day with global amnesia. He did not know his name, or where he lived. He had no memory of his past. He was unable to give any information about himself.

He was examined for head trauma, but he had no injuries of any sort, and was admitted to a psychiatric ward.

After a couple of days a police trawl of missing persons revealed who he actually was, and his mother visited him on the ward. He did not recognise her.

Over a period of about two weeks, his memory gradually returned, and the story of what had actually happened emerged. And guess what? It was all about the ending of a relationship. His girlfriend had told him she wanted to finish with him. His immediate reaction was one of rage, and he had literally picked his girlfriend up off the ground and hurled her across the room. Fortunately, she was shaken, but not otherwise physically harmed. He then stormed off – and promptly wiped everything from his mind, including his entire life history.

These three cases featured forms of amnesia as a way of coping with intolerable news. Other people will simply refuse to accept that anything has changed, and will attempt to carry on despite all evidence to the contrary.

I was asked to assess Charles by his GP. Charles was a man in his 40’s who had been married for about 20 years. The couple had two teenage sons. 3 or 4 months previously his wife had told him that she wanted a divorce. She asked him to leave, but he refused. Since then, he had been living in the dining room. He had put locks on the inside of the door and only left the room in the middle of the night when the rest of the family were in bed. Then he would creep out and use the kitchen to prepare food for himself.

His wife had initiated formal divorce proceedings and had decided to put the house on the market. When she told him about this, he vacated the dining room one night and moved into the garage.

I went out to try and see him. His wife let me in and showed me photographs of the dining room that she had taken after he had vacated it. He had constructed a network of tunnels using cardboard boxes and blankets that had filled the room.

I went out to the garage, which had an up and over door which was closed. A car was in the garage, and he appeared to be living in that. There then followed one of my more unusual attempts to interview “in a suitable manner”. I could not induce him to open the door so that I could talk with him face to face, and had to make do with talking to him through the door.

During the interview I was unable to elicit any overt signs of psychosis, and he generally answered questions rationally, although avoided any discussion of the impending divorce. I concluded that despite the unusual circumstances, there was no evidence of risk that would merit obtaining a magistrate’s warrant under Sec.135. He was simply in denial, and unprepared to accept reality.

I advised his wife to get legal advice about evicting him from the property, and subsequently heard that after a few weeks he left of his own volition.

None of the above were actually detained under the MHA. In other cases, precipitated by rejection and the end of a relationship, people can self harm or become suicidal and present with high levels of risk. But do they actually have a mental disorder that makes them liable to be detained?

In the case of most adjustment disorders, the acute response will quickly resolve, or the absence of serious risk factors do not merit use of the MHA.

Rosemary’s MHA Assessment from the Channel 4 series Bedlam

 

This is an extract from a Channel  4 series called Bedlam. This particular episode was first broadcast on 14^th November 2013, and features what I believe is the only actual assessment under the Mental Health Act to have been filmed.

The episode followed Jim Thurkle, an AMHP working in the Speedwell  Community Mental Health Team in South London, as he went about his work in the community. In particular, it focused on Rosemary, a woman with schizophrenia who had stopped taking her medication, and was evading contact.

I have extracted the scenes involving Rosemary, including Jim’s attempts to see Rosemary and his efforts to avoid a formal assessment under the Mental Health Act and the day the inevitable assessment takes place, and edited them together. Because of patient confidentiality, the cameras are unable to follow Jim into Rosemary’s house where the assessment takes place.

You can find a link here to the review of this episode that I wrote for Community Care magazine.