CXF, R (On the Application Of) v Central Bedfordshire Council NHS North Norfolk Clinical Commissioning Group

The duty to provide after-care under section 117 of the Mental Health Act 1983 does not arise whenever a detained patient temporarily leaves hospital premises. The provision must be construed contextually and in accordance with its purpose.

A patient who remains in the hospital’s care and custody during a short escorted trip neither ceases to be detained nor leaves hospital for this purpose. Services supplied during such a trip form part of current hospital treatment. They are not after-care directed at reducing the risk of future readmission.

Section 117 may nevertheless apply to a patient living in the community while on leave under section 17. Formal discharge from liability to detention is not essential.

The claimant was detained for treatment under section 3 of the Mental Health Act 1983. He received daily leave under section 17 for therapeutic bus trips, during which two hospital staff kept him in custody. His mother incurred substantial expense travelling to accompany him.

He sought judicial review of the respondents’ refusal to fund her travel under section 117. The Administrative Court dismissed the claim in [2017] EWHC 2311 (Admin), holding that the claimant remained detained and had not left hospital during the trips.

The principal issue on appeal was whether an escorted day trip amounted to ceasing to be detained and leaving hospital under section 117(1). Further issues concerning the nature of after-care, responsibility for funding and reimbursement of the mother’s costs arose only if that question was answered affirmatively.

1. Appeal dismissed unanimously. Section 117 of the Mental Health Act 1983 did not apply to the claimant’s escorted day trips. He remained in the hospital’s care and custody throughout and therefore neither ceased to be detained nor left hospital within section 117(1): per Leggatt LJ, with whom Haddon-Cave and Bean LJJ agreed.

2. Statutory language must be read in its internal and external context and in accordance with the provision’s purpose. The expression “detained” can describe a patient’s general legal situation even during a temporary absence. Likewise, “leave hospital” naturally refers to leaving hospital care rather than merely going outside its premises.

3. The purpose of section 117 is to provide after-care to a person who was, but is no longer, receiving treatment and care as a hospital patient. The requirement in section 117(6)(b) that services reduce the risk of admission to hospital again cannot ordinarily be fulfilled while the person remains admitted and under current hospital treatment.

4. A person may nevertheless cease to be detained and leave hospital for section 117 purposes while formally on section 17 leave. Section 117 can apply where the person lives in the community, full-time or for part of the week, subject to possible recall. Conditional or absolute discharge is not indispensable. That situation is materially different from a short trip in the custody of hospital staff.

5. The bus trips formed part of the claimant’s existing treatment. His return was an agreed and inevitable condition of leave, not a risk of future readmission which the trips sought to reduce. The services supplied on the trips therefore could not be “after-care services” under section 117(6), independently of the conclusion under section 117(1).

6. A later code of practice issued under section 118 could not be used to construe the original statutory language. Delegated material may assist interpretation only where prepared contemporaneously and forming part of Parliament’s legislative background.

7. The allocation of any section 117 duty between clinical commissioning groups did not arise. The court added obiter that, even if section 117 applied, the mother’s beneficial visits could not readily support recovery of her travel costs because she was not providing authorised services on behalf of a statutory body.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously in [2018] EWCA Civ 2852. The court upheld the conclusion that section 117 of the Mental Health Act 1983 did not apply to the escorted day trips.

2. High Court, Administrative Court: In [2017] EWHC 2311 (Admin), Ms Dinah Rose QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim because the claimant remained detained and had not left hospital during the trips.