B, R (on the application of) v Camden London Borough Council & Ors

The statutory duty under section 117 of the Mental Health Act 1983 arises only when a person ceases to be detained and leaves hospital. Before discharge, however, the relevant authorities have a discretion to take preparatory steps. Where a tribunal has provisionally decided that conditional discharge is appropriate, that discretion must ordinarily be exercised by using reasonable endeavours to implement the tribunal’s conditions.

Authorities may investigate funding and resource issues, but must resolve them with reasonable expedition. Section 47 of the National Health Service and Community Care Act concerns present or imminent need and does not impose a general duty to monitor detained patients. On the facts, any delay by the defendants was not shown to have delayed discharge. The claim was dismissed.

B had been detained in hospital under sections 37 and 41 of the Mental Health Act 1983. A mental health review tribunal made a deferred conditional-discharge order, requiring suitable accommodation and related care arrangements. B was eventually discharged to Holtwhites Villa.

He claimed that Camden, the authorities responsible for his after-care, had delayed arranging and funding accommodation. He sought judicial review and damages for alleged breaches of section 117, section 47 of the National Health Service and Community Care Act, and Articles 5 and 8 of the Convention. The central issues were when the relevant statutory duties arose, whether Camden’s delay caused delay in discharge, and whether damages were available.

1. Section 117 duty. The wording of section 117(1) was clear. The duty in section 117(2) was owed only to a person who ceased to be detained and left hospital. A deferred decision that conditional discharge would be appropriate did not itself end detention.
2. Pre-discharge responsibilities. Practicality nevertheless required the authorities to take preparatory steps before discharge where a tribunal had provisionally decided that conditional discharge was appropriate. Following R (K) v Camden & Islington Health Authority [2001] EWCA Civ 240 and R (W) v Doncaster [2004] EWCA Civ 378, Camden had to use reasonable endeavours to implement the tribunal’s conditions. This was a lawful exercise of discretion before the statutory duty arose.
3. Monitoring and assessment. Section 117 imposed no duty to monitor a detained patient’s progress in anticipation of a possible future discharge. The hospital and, where appropriate, the patient’s solicitor should notify the section 117 authorities of a tribunal decision. Section 47 of the National Health Service and Community Care Act applied where it appeared that a person might need community care services at the time or was about to need them. It did not require assessments of wholly future needs or general monitoring of detained patients.
4. Funding and delay. Camden was entitled to investigate whether accommodation should be funded by another authority or public source. It was not entitled to drag its heels. Funding issues had to be resolved with reasonable expedition and, where reasonably possible, without delaying discharge.
5. Causation and Convention claims. Camden’s delay was not shown to have caused any delay in B’s discharge. The court further stated, although the point did not arise for decision, that even if a breach of statutory duty had prolonged detention, Camden would not thereby be liable for damages under Articles 5 or 8. Any damages, had liability been established, would have been modest.

The claim for judicial review was dismissed. Camden was awarded its costs, with liability to pay subject to legal-aid provisions. Permission to appeal was refused.

The claim was brought in the Administrative Court. Permission for judicial review had initially been refused, but the Court of Appeal later granted permission to apply for judicial review. The substantive claim was heard and dismissed by the High Court.