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25.Mar.2011

The courts have clarified who is the responsible authority for providing aftercare for persons discharged after being detained under the Mental Health Act 1983. Simon Lindsay, David Owens and Hannah Taylor explain the key rulings.

On 15 February 2011, the Court of Appeal provided clarity as to who the responsible authorities are for the purpose of s.117 aftercare under the Mental Health Act 1983 in the case of R (on the application of Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM [2011] EWCA Civ 77.

S.117 aftercare services

Under the Act the responsible authorities have a joint duty to provide aftercare services to a patient who was detained under section 3 or section 37 (or is transferred under section 45A, 47 or 48) once they are discharged from hospital. This is a freestanding right to services, and not part of wider statutory duties.

Who are the responsible authorities?

Section 117 of the Act makes it clear that Parliament intended Primary Care Trusts (or Local Health Boards) to be jointly responsible with Local Social Services Authorities in providing aftercare services. In practice, this function of Primary Care Trusts is often delegated to NHS Trusts and NHS Foundation Trusts.

Which health body and local social service authority is responsible?

Section 117 of the Act states that it is the health body and local social service authority: “for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained”.
Unfortunately, this does not provide much clarity as between health bodies and local social service authorities.

R v Mental Health Review Tribunal ex. P. Hall [1999] 3 All ER 132

This case made it clear that the responsible authority is that which is responsible for the area in which the patient was resident prior to being detained, unless it is unable to be established where the patient was resident prior to detention, in which case it is the authority responsible for the area to which the patient is discharged.

However, this case did not address the common scenario for local social services authorities where persons are placed in their area under the National Assistance Act 1948 (the "NAA 1948") by another local social services authority but are deemed to be resident in the area of the placing local social services authority – the so called "deeming provisions."

R (on the application of Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM [2011] EWCA Civ 77

This case has made it clear that the "deeming provisions" are irrelevant for the purposes of identifying the responsible local social services authority for aftercare services under s.117 of the Act. In practice, this means that where a person is placed in Area B by local social services authority A under the NAA 1948 (and therefore deemed resident in Area A), is detained under the Act and discharged to Area C, the local social services authority for Area B is responsible for s.117 aftercare services, notwithstanding the fact that they person was deemed resident in Area A prior to their detention.
In addition, this case has made it clear that where the patient is resident during their detention is irrelevant for the purposes of identifying the responsible authority for s.117 aftercare services.

What does this mean for responsible authorities?

The responsible authority (both health and local social services) is that which is responsible for the area in which the patient was resident prior to detention. In determining where the patient was "resident," residence should be given its ordinary everyday meaning. This means where the patient was living.

Only if it is not possible to determine where the patient was resident prior to detention, does responsibility for aftercare services shift to the authorities responsible for the area to which the patient is discharged.

What should responsible authorities do in practice?

1. It is important that responsible authorities consider the issue of responsibility as soon as possible after the detention commences so that the responsible authorities can undertake the planning elements of s.117 aftercare duties before the patient is discharged from hospital. Things to consider include:

• Where did the patient live?
• Did they have a tenancy agreement or own a property in the area?
• Where did the patient work?

Issues which may muddy the water are:

• Temporary residency – for example, where a person is in hotel accommodation or a very short term tenancy
• Where a person maintains two places of residence
• Where a person is detained in prison or on remand – it is clear that where a person is in prison it does not mean they are resident in that area.

2. Detaining authorities should open up dialogue with potentially responsible authorities at the earliest opportunity in order that any areas of dispute can be remedied prior to the patient being discharged.

3. Only if a patient's residence prior to detention cannot be established, should responsibility fall with the authorities responsible for the area to which the patient is discharged.
S.117 of the Act does not provide for any mechanism of dispute resolution if responsible authorities cannot decide between themselves who has responsibility. This means that if absolute deadlock is reached, the only route open to the responsible authorities is to go to Court for a determination. This is an expensive and time-consuming process which should be avoided if at all possible. Authorities may wish to consider agreeing binding dispute resolution processes.

Finally, it is important that prolonged disputes as to responsibility do not delay a patient's discharge from hospital. This could result in a claim from the patient that they are being unlawfully detained and their human rights are being breached.

Simon Lindsay and David Owens are partners and Hannah Taylor is a solicitor at Bevan Brittan (www.bevanbrittan.com). Simon can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. while David can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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24.Mar.2011

A High Court judge has refused a charity permission to bring judicial review proceedings against Nottingham City Council over cuts the authority is proposing to its Supporting People budget.

The charity, Framework, said it would now seek permission for a judicial review against the Department for Communities and Local Government, which devised the formula for the cuts.

At the High Court Framework said it wanted to challenge Nottingham’s decision to use £12.4m as the starting point for its Supporting People budget in 2011/12. The charity cited correspondence from DCLG that indicated that the city’s formula grant allocation for the coming year included at least £19.8m in respect of Supporting People.

However, the judge decided that in conditions that differ from those in previous years, it was not unreasonable for the city council to start from a figure of £12.4m when setting its own budget for housing-related support.

Andrew Redfern, Framework’s chief executive, said: “We embarked on this process because we couldn’t stand by and watch while thousands of people lose the support they desperately need. We are disappointed, on their behalf, that permission for a legal challenge has been refused. However it is better to hit the brick wall at this point than take the case to court only to discover that it makes no difference to the reality on the ground.”

Redfern said Framework would now seek other ways to try and prevent “the worst excesses of the cuts”.

He added: “The judge accepted the argument that the baseline distribution of the Supporting People budget is a reasonable starting point for local budget setting. In view of this we will now seek permission for a legal challenge to central government’s handling of SP, in particular the re-distribution that has meant a massive reduction in the underlying allocation to Nottingham city. The figure of £12.4m for 2011/12 is 45% less than the £22.3m that Nottingham received for the same purpose in the current year.

“In the meantime we will continue to highlight the impact of withdrawing support from thousands of vulnerable people whose needs have not disappeared regardless of the disputes between central and local government. It will not be possible to prevent the harm to individuals and communities, but we may be able to mitigate it.”

News of the High Court ruling comes just days after Broxtowe Borough Council fired a warning shot at Nottinghamshire County Council over its proposals to cut its Supporting People, promising legal action if the plans are not changed.

Broxtowe’s Cabinet approved a letter to the county arguing that the cuts would have a major impact on its vulnerable tenants and put an increasing burden on the borough council.

Philip Hoult

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24.Mar.2011

The Law Society has hit out at the Legal Services Commission over its proposed timetable for a consultation and impact assessment on legal aid contract changes affecting the representation of mental health patients in high security hospitals.

Chancery Lane described the proposed timetable as “unacceptable”, warning that the rights of vulnerable clients could be infringed.

According to the Law Society, the LSC has set out an indicative timetable for the section 49A Disability Discrimination Act consultation as follows:

• beginning of April: the Commission will draft a disability impact assessment
• by the end of April: it will develop any policy changes
• further two months: it will carry out a formal consultation on any contract changes
• by end of June: it will implement changes.

In December 2010 Mr Justice Cranston ruled that there could be no challenge under the general disability equality duty to the process of awarding the contracts for legal advice for mental health patients in high security hospitals, but that duty was engaged because of the outcome of the process.

The fact that many patients may need to switch advisers as a result of the tender may “have an adverse impact on those already vulnerable”, the High Court judge said.

He added that under s. 49A, the LSC must have due regard to whether it needs to take steps to ameliorate that result of the contracting exercise.

Chancery Lane has now warned that “due to the consultation delays, clients will be forced into the very situation that the impact assessment is meant to be considering and potentially preventing”.

The Law Society added that the 2010 contract provided for urgent amendments where required. “If the consultation was carried out urgently, then the changes could be brought in by early April,” it suggested.

A Legal Services Commission spokesman said: "The JR judgement found that the high security hospitals tender was not unlawful, but identified that the LSC must have due regard for the tender's impact.

"We are working hard to ensure that the consultation is carried out properly, taking in the views of patients, a range of hospital staff, legal aid providers and other interested parties. We must also consider very carefully the impact of any potential changes to the contract.

"The timescales we have outlined are the earliest at which we can ensure a proper and meaningful consultation and impact assessment."

Philip Hoult

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16.Mar.2011

The High Court was recently asked whether a man with a low IQ had capacity to consent to sexual activity. Victoria Butler-Cole and Vikram Sachdeva argue that a ruling from either the Court of Appeal or the Supreme Court is needed.

In D Borough Council v AB [2011] EWHC 101 (COP) the High Court (Mostyn J) was once again asked to consider the correct test for capacity to consent to sexual relations.

The case, which received considerable publicity, concerned A, who had a moderate learning disability and had developed a homosexual relationship with a fellow service user, K. There was no evidence of an exploitative relationship, but the local authority had in addition been alerted to two incidents in which members of the public had raised concerns about A‟s behaviour in public. The local authority sought a declaration that A did not have capacity to consent to sexual relations and that he should not have sexual contact with K.

The jointly-instructed expert advised that the following factors needed to be understood for someone to have capacity to consent to sexual relations: For capacity to consent to sex to be present the following factors must be understood:

(a) the mechanics of the act

(b) that only adults over the age of 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children)

(c) that both (or all) parties to the act need to consent to it

(d) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections

(e) that sex between a man and a woman may result in the woman becoming pregnant, and

(f) that sex is part of having relationships with people and may have emotional consequences.

The judge rejected this analysis, and the local authority‟s submission that the personality and characteristics of the sexual partner were relevant factors. He adopted the approach set out by Munby J in the cases of X City Council v MB, NB and MAB [2006] EWHC 168 (Fam), [2006] 2 FLR 968 and Local Authority X v MM and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, that consent to sexual relations is act-specific, not person- or situation-specific.

Mostyn J concluded (at paragraph 42) that the only information relevant to giving consent which the person must understand and retain is (a) the mechanics of the act, (b) that there are health risks involved including STIs, and (c), for heterosexual relations only, that sex between a man and a woman may result in pregnancy.

On the facts, the judge found that A lacked capacity because he had a very limited and faulty understanding of sexually transmitted infections, believing that sex could give you spots or measles. Clearly, A understood the mechanics of the act, because he had already engaged in sexual activity.

However, the judge refused to grant a final declaration and said that the local authority must put in place educational measures to assist A to acquire capacity. This went against the recommendation of the expert, who considered that it would not be in A’s best interests to undergo such education. A might become confused and anxious and exhibit challenging behaviour which would jeopardise his placement.

Comment: Victoria Butler Cole

The law on capacity to consent to sexual relations is in disarray. This decision conflicts with the recent decision of Wood J in D County Council v LS [2010] EWHC 1544 and it is difficult to see how the two judgments can be reconciled (or how this judgment can be reconciled with that of the House of Lords in R v Cooper [2009] 1 WLR 1786).

Permission to appeal was granted to the local authority but it is unlikely that an appeal will be pursued given the current economic climate, and that the local authority agreed with the Official Solicitor that A lacked capacity to consent to sexual relations (albeit that they differed over the test that generated that conclusion).

In my view, A’s case would not be well suited to becoming a test case, since there was no concern about exploitation of A, and the reasons for proposing a person- and situation-specific test were far from clear. One of the difficulties with cases on capacity to consent to sexual relations is that the particular circumstances of the individual concern necessarily limit the scope of the court’s deliberations – decisions are made in the absence of sufficient information about the circumstances in which the test may need to be applied.

Thus, in this case, the lowest degree of knowledge possible was found to be needed to consent to sex. Had, for example, the judge been considering heterosexual relations, he may well have concluded that understanding not just the risk of becoming pregnant but that pregnancy itself may carry risks, was necessary. Had, for example, there been an exploitative relationship, the judge may have been more inclined to prefer a test that does not impose a blanket ban on sexual relations, but only within an exploitative relationship.

If this decision is correct, it is clear that the criminal test for capacity under s.30 of the Sexual Offences Act 2003 and the civil test are not the same; a point which was not acknowledged in A’s case. It may also, counter-intuitively, impose more restrictions on people with learning disabilities rather than promote their sexual freedom, since where an exploitative or abusive relationship exists, the inclination may well be to “fail” the individual on the test for capacity (as there is inevitably a degree of flexibility about how much knowledge of, for example, STIs is required). This could then result in a global declaration preventing sexual contact for the individual in other, non- exploitative contexts. Local authorities and those working in this area can only hope that the issue does receive consideration by the Court of Appeal in the near future.

Comment: Vikram Sachdeva

The correct test for capacity to consent to sexual relations is a highly controversial topic. The answer depends on an examination of the philosophical basis underlying incapacity law – specifically whether it is justified (on a utilitarian basis) to prevent significant sections of the population from indulging in sexual activity in order to prevent abuse in a small number of cases, or whether fewer should be barred from sexual activity, but with a risk of abuse in a small number of cases which would have otherwise been avoided.

This issue underlies another conceptual question: whether capacity to consent to sexual relations should be situation- (and therefore person-) specific, within Re MB [1997] 2 FLR 426, or whether it is not (as with marriage: see Sheffield County Council v E [2005] Fam 326). Or is the capacity to consent to marriage also situation-specific?

Further, is it essential (rather than merely desirable) for the test for capacity to consent to be identical in the criminal and the civil law? This again will depend on the purpose served by incapacity in the criminal and civil law, which may not be the same.

Although a number of first instance judges have valiantly tried to square the circle (Munby J (as he then was) in X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) and in Local Authority X v MM and KM [2007] EWHC 2003 (Fam); Roderic Wood J in D County Council v LS [2010] EWHC 1544(Fam); Mostyn J in D Borough Council v AB [2011] EWHC 101 (COP), and the House of Lords has expressed a view in passing (R v Cooper [2009] UKHL 42 [2009] 1 LR 1786), ultimately the answer is a question of policy for the Supreme Court. Its judgment will certainly make interesting reading....

Victoria Butler-Cole and Vikram Sachdeva are barristers at 39 Essex Street (www.39essex.com).

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10.Mar.2011

Parents and local authorities who disagree over special educational provision for a child could be required to go through mediation before an appeal can be made to the First-tier Tribunal (SEN and Disability), the Department for Education has proposed.

The move is part of a package of measures for overhauling the educational and health support given to such children, with the government hailing the reforms as the biggest shake-up in 30 years.

The Green Paper – Support and Aspiration: A new approach to special educational needs and disability – said: “We believe that it is important to have an independent forum where such disagreements can be resolved and that parents have the right to appeal; we have no plans to remove parents’ right to appeal to the First-tier Tribunal if they disagree with decisions made by local authorities. However, while it is important for this right to continue, we know that parents can find the appeal process stressful.”

The Department for Education suggested it would be better for parents and a better use of public funds if disputes about assessments and statements are resolved earlier and through non-judicial means. It acknowledged the work that the Tribunal is already doing in encouraging resolution of cases before a hearing.

Where mediation has been used by West Midlands authorities, four out of five cases reached a settlement without going to the Tribunal, it said. The Green Paper added that dispute resolution services were “under-used and under-promoted”, with an average of little more than one mediation per authority per year and more than half of authorities reporting no mediations during one year.

The Green Paper said: “We propose that parents and local authorities should always try mediation before a parent can register an appeal with the Tribunal, but we do not want this to affect the time that parents have to appeal or to change parents’ right to appeal.”

The Department for Education also announced that it would pilot giving children the right to appeal and make disability discrimination claims in two or three local authorities with a view to extending the right to all children across England. Such a right has been recommended by the United Nations Committee on the Rights of the Child.

“The pilot will test whether the right to appeal is something that children would use, the best way to handle these appeals, and the cost implications of this change,” it said.

This pilot comes as the Ministry of Justice consults on its proposed changes to legal aid. These would mean that legal help and advice would no longer be available to parents to help them prepare appeals to the Tribunal in SEN cases.

Legal aid will still be available where it is now for parents to make disability discrimination claims on behalf of their children, “that is, legal help and advice for First-tier cases and legal representation for cases that go before the Upper Tribunal”. The MoJ is expected to publish its response to the consultation in late spring.

Other key proposals in the Support and Aspiration Green Paper are:

• Inclusion of parents in the assessment process and, by 2014, a legal right giving them control of funding for the support their child needs.
• Replacement of statements with a single assessment process and a combined education, health and care plan (also by 2014). This will mean that health and social services is included in the package of support along with education
• Ensuring assessment and plans run from birth to 25 years old
• Replacement of School Action and School Action Plus with a new school-based category “to help teachers focus on raising attainment”
• An overhaul of teacher training and professional development
• The setting out by local authorities and other services of a local offer of all services available
• Giving parents “a greater choice” of school, either a mainstream or special school. Parents and community groups will have the power to set up special free schools
• Introducing greater independence from local authorities in the assessment of children’s needs. The government will look at how voluntary groups could coordinate the package of support.

The government said the reforms would address problems such as parents battling to get the support their child needed, SEN statements not joining up education, health and care support, and children falling between the gaps in services or having to undergo multiple assessments.

The Department for Education also said it wanted to tackle “a confusing and adversarial assessment process, with parents’ confidence in the system undermined by the perceived conflict of interest where the local authority must provide SEN support as well as assess children’s needs”.

Children’s Minister Sarah Teather said: “We have heard time and time again that parents are frustrated with endless delays to getting the help their child needs, and by being caught in the middle when local services don’t work together.

“Parents and voluntary organisations have given us overwhelming examples where they have felt let down by local services. At the moment there is an appalling situation where public money is being wasted as children are growing out of equipment, like wheelchairs, before they even arrive. The new single assessment process and plan will tackle this issue and mean that parents don’t feel they have to push to get the services they are entitled to.”

Responding to the Green Paper, Baroness Shireen Ritchie, chairman of the Local Government Association’s children and young people board, said: “The aim of creating a single system for people up to the age of 25 with special educational needs is one which the LGA supports. However, more work needs to be done on how to make this ambition a reality.

“Talk of realigning systems simply does not go far enough. What the system needs is a radical transformation built on a firm legislative base.”

Baroness Ritchie said there needed to be a system that joined up SEN provision in schools with that in further education colleges. She also called for sufficient funding to ensure that council support for SEN to be continued at its current level.

“In the recent local government financial settlement, councils saw funding for early intervention cut by 25%,” Baroness Ritchie added. “Councils have been leading the way on giving parents greater control over their children’s education through personalised budgets, but the government needs to make sure that the funding from health, education and social care is available to meet these costs.”

The Green Paper also sets out proposals to help children that have a learning need, but not necessarily a special educational need.

The consultation runs until 30 June. For more information, click here.

Philip Hoult

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09.Mar.2011

London Councils has launched a supplementary consultation on the future scope of its London Boroughs Grants Scheme, after obtaining a legal opinion on equalities issues.

The group, which also received expert advice from from the Equalities and Human Rights Commission, has designed the consultation as an addition to the original consultation that it ran last year.

The move follows a High Court ruling in February, when Mr Justice Calvert-Smith declared that a decision by the leaders’ committee of London Councils on 14 December 2010 adopting a categorisation of currently commissioned services and deciding on the timing of proposed changes and transitional arrangements in respect of the scheme was unlawful.

London Councils had reached its decision without due regard to its statutory equalities duties under the Race Relations Act 1976, the Sex Discrimination Act 1976 and the Disability Discrimination Act 1995, the judge added.

Following the ruling London Councils pointed out that its proposed budget still stood. It had set the budget for 2011/12 at £17.8m, down from £26m.

The supplementary consultation is seeking views on:

• The categories proposed by London Councils
• Any alternative scheme of categorisation “as long as it ties in with the objectives of the review and the agreed principles and priorities for the future programme (bearing in mind the review looks to devolve decision making down to a local level)"
• The categorisations of existing commissions. London Councils has already undertaken a preliminary categorisation of each commission
• Anything to be added to or amended in responses to the original consultation on equalities impacts
• The timescale for decommissioning.

London Councils’ Corporate Director of Services, Nick Lester said: “Although the judicial review found that the original consultation was sound, it did rule that we needed to do more work to assess the detailed impact that changes to the scheme could have on equalities.

“We are now moving quickly to ensure we meet our equalities duties and to provide the voluntary sector with some clarity in this turbulent time."

The consultation will run until 5 pm on 8 April. More information is available here.

Philip Hoult