CXF, R (on the application of) v Central Bedfordshire Council & Anor [2017] EWHC 2311 (Admin)

Case No CO/5652/2016[2017] EWHC 2311 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 September 2017
Before
DINAH ROSE QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimantOn the application ofClaimantCXF (acting by his mother, his litigation friend)Claimant(1) CENTRAL BEDFORDSHIRE COUNCILDefendants(2) NORTH NORFOLK CLINICAL COMMISSIONING GROUPDefendant
Shu Shin Luh (instructed by Campbell-Taylor Solicitors) for ClaimantMike O’Brien QC (instructed by LGSS Law) for First DefendantPeter Mant (instructed by Capsticks Solicitors LLP) for Second DefendantHearing Hearing dates: 27 – 28 June 2017
JudgmentMiss Rose QC:
[1]The Claimant in this case is a young man of 18. He has complex needs arising from his autistic spectrum disorder and other conditions. He is currently detained under s.3 of the Mental Health Act 1983 (“the MHA”) at Cawston Park Hospital, in Norfolk (“the Hospital”). The Hospital is within the area covered by the Second Defendant, and is 120 miles from the Claimant’s family home in Bedfordshire.[2]The Claimant’s mother visits him weekly, undertaking a round trip by car of 240 miles and 7 hours to do so. The cost of the trip is substantial, and causes her real financial hardship. When the Claimant’s mother visits the Hospital, she accompanies the Claimant on bus trips, for which he is granted leave of absence under s.17 of the MHA, escorted by two members of Hospital staff. They undertake various activities, including visits to the shops, walks on the beach, and visits to a local dinosaur park. Although there is some dispute as to the importance of the presence of the Claimant’s mother on the trips in enabling the Claimant to undertake new activities, it is not disputed that the bus trips, the associated activities, and the Claimant’s face-to-face contact with his mother are all therapeutically beneficial to him.[3]Until the Claimant’s 18th birthday, the expenses incurred by his mother in visiting him were met by the First Defendant, under s. 17 of the Children Act 1989. However, that funding has now ceased, and the Defendants have refused to provide further funding. Those decisions are the subject of the challenge brought by the Claimant, through his mother, in this claim for judicial review.[4]The central question raised in these proceedings is whether either or both of the Defendants has a duty under s. 117 of the MHA to cover the costs of the Claimant’s mother’s visits, on the ground that they constitute “after-care services” within the meaning of that provision. The Claimant does not rely on any other provision as the source of a duty to fund the visits.[5]The specific issues that arise are as follows: i) Whether the duty to provide after-care services under s. 117 is triggered when the Claimant is granted leave of absence from the Hospital under s. 17 of the MHA for an escorted bus trip. This issue turns on the question whether, when granted such leave of absence, the Claimant satisfies the two pre-conditions set out in s. 117(1), namely,(i) that he has “ceased to be detained” under s.3 of the MHA, and(ii) that he has “left hospital”; ii) If so, whether the after-care services which are to be provided pursuant to s. 117(6) of the MHA may as a matter of principle include funding to cover the Claimant’s mother’s transport costs; iii) If so, whether on the facts of this case there is a duty to provide the funding sought as an after-care service under s. 117; iv) If so, whether the duty to provide the services falls on the First and Second Defendants jointly, or in fact falls on the First Defendant jointly with Bedfordshire Clinical Commissioning Group, which was originally joined as a Defendant to these proceedings, but against which proceedings were discontinued in March 2017.[6]As will be apparent from this summary, issues (ii) – (iv) do not arise unless the Claimant succeeds under issue (i) in establishing that the s. 117 duty is triggered when he is granted leave of absence under s. 17 for the escorted bus trips.[7]For the reasons set out below, in my judgment, the duty under s. 117 has not been triggered in this case. The Claimant has remained in detention, and has not “left hospital” when given permission to leave the grounds of the hospital for an escorted bus trip. This claim must accordingly be dismissed. I therefore do not seek in this judgment to determine the issues of law under issues (ii) – (iv), although I do have some comments to make on the evidence as to the consideration that has so far been given to the therapeutic importance of the Claimant’s mother’s visits.

Factual background

[8]The Claimant was born on 10 August 1998, and has been diagnosed with autistic spectrum disorder, severe to profound learning disabilities, speech and language impairment, and attention deficit hyperactivity disorder.[9]Because of the limited number of specialist residential placements capable of meeting the Claimant’s needs, he has been accommodated and treated at a considerable distance from his family home in Bedfordshire, where his mother lives. The Claimant attended a specialist residential school between 2012 and June 2016, when the school indicated that they could no longer manage his behaviour. On 22 June 2016, he was detained under s. 3 MHA, initially at St Andrews Mental Health Unit, and, from 4 July 2016, at the Hospital.[10]The First Defendant is the relevant local authority where the Claimant was ordinarily resident with his mother before he was detained under s. 3 of the MHA. The Third Defendant is the CCG responsible for the area where the Hospital is situated.[11]Until August 2016, funding for the Claimant’s mother to visit the Claimant at his residential placements was provided by the First Defendant under s. 17 of the Children Act 1989. Funding sufficient for fortnightly visits was provided, although she in fact visited weekly. However, this funding was terminated when the Claimant reached his 18th birthday.[12]Notwithstanding the cessation of funding, and her own very limited means, the Claimant’s mother has continued to visit him weekly, funding the substantial cost of the visits (including fuel costs of around £35) from her own social security benefits, even in circumstances in which doing so has caused her to deny herself basic necessities. In addition, they have regular contact by telephone and Skype calls. The love and dedication shown by the Claimant’s mother, and the strength of her commitment to the Claimant’s care and welfare, is very clear, and is acknowledged on all sides in this case. It is also notable that the Claimant’s mother has made clear in her evidence her view that there has been an enormous improvement in the Claimant’s behaviour since his arrival at the Hospital, and has stressed that she has an extremely good relationship with the staff there.[13]Since August 2016, Dr Carter, the clinician with overall responsibility for the Claimant’s care, has granted him daily leave of absence from the Hospital pursuant to s. 17 of the MHA, to go on bus trips escorted by two members of Hospital staff. The bus trips have taken place up to three times a day. They are reported in his Treatment and Support Plan dated January 2017 to be an essential part of his therapeutic programme, because they assist him to expend his physical energy, and promote his confidence and independent living skills. During her weekly visits, the Claimant’s mother accompanies the Claimant on bus trips, together with the two escorting members of staff. When she does so, they engage in a variety of activities, including shopping in Tesco’s for snacks, walking on the beach at Sheringham, visiting the Norfolk and Suffolk Aviation Museum, and visiting the Dinosaur Adventure Park.[14]Leave is granted on a form headed “Hospital Grounds and Community Leave (sec 17 of MHA) Form”.[15]The purposes of the leave are stated on the form to be leisure, treatment, and relaxation. The escort conditions recorded specify two escorts. The areas which may be visited are identified, including the planned activities. The form also records that trips escorted by parents only are not permitted, but that the Claimant must be “escorted by parents but supervised by staff”.[16]The Claimant’s mother has stated in evidence that her presence has been important (she would say essential) in encouraging the Claimant to engage in new activities, such as visiting the Museum and the dinosaur park. She relies in support of this on an opinion from Fay Locke, his designated nurse. The opinion stresses the importance for the Claimant’s mental health of face to face contact with his mother, and that his mother supports him in leaving the bus to engage in activities which he might find “more tricky” if she was not present.[17]The First Defendant does not accept that it is necessary for the Claimant’s mother to be present in order for him to engage in new activities as part of his leave of absence. It points to the fact that the Claimant was first taken swimming by Hospital staff in the absence of his mother, and relies on evidence from Dr Carter to the effect that new activities and experiences can be carried out on the Claimant’s bus trips by staff in her absence.[18]The view of Dr Carter was initially provided to the Court only though emails, and then after the first day’s hearing and at my request in a slightly expanded (but understandably limited) witness statement. I would have been assisted by a fuller and more considered expression of opinion from him on this question. It has not been possible to determine from the variety of reports and minutes of meetings before me, which were prepared for different purposes and over a considerable period of time, the extent to which the presence of the Claimant’s mother should be regarded as necessary, significant, beneficial, or merely welcome in encouraging the Claimant to engage in new activities while on leave of absence from the Hospital, or the extent to which such new activities are therapeutically beneficial to him.[19]For the reasons which I explain further below, the resolution of this question of fact has not ultimately been necessary in order for me to decide this case. Had I concluded that the s.117 duty was triggered when the Claimant was granted leave of absence, I would have required a reconsideration by the clinical team of the extent to which his mother’s visits were therapeutically important.[20]After the withdrawal of funding to cover the Claimant’s mother’s travel expenses, his solicitors entered into pre-action correspondence with the First Defendant and Bedfordshire CCG, seeking the reinstatement of the funding, on the basis that they were under a duty to provide it under s. 117 of the MHA. A number of other arguments were also advanced. They declined to reinstate funding. A claim for judicial review was issued against the First Defendant and Bedfordshire CCG on 8 November 2016. By order of Karon Monaghan QC sitting as a Deputy High Court Judge, made on 13 December 2016, the Second Defendant was added to the Claim. Permission to apply for judicial review was granted by Dove J on 22 December 2016. On 15 March 2017, the claim against Bedfordshire CCG was discontinued. Issue 1 Legal framework[21]S. 3(1) of the MHA provides that “a patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.”[22]By s. 6(2), an application for admission for treatment is sufficient authority for the managers of a hospital to detain a patient in the hospital in accordance with the provisions of the MHA.[23]S. 17 provides, as far as is material: “(1) The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons. (2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient. (2A) But longer-term leave may not be granted to a patient unless the responsible clinician first considers whether the patient should be dealt with under section 17A instead. (2B) For these purposes, longer-term leave is granted to a patient if –(a) leave of absence is granted to him under this section either indefinitely or for a specified period of more than seven consecutive days; or(b) a specified period is extended under this section such that the total period for which leave of absence will have been granted to him under this section exceeds seven consecutive days. (3) where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital, or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital. (4) In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the responsible clinician that it is necessary so to do in the interests of the patient’s health or safety or for the protection of other persons, the clinician may, subject to subsection (5) below, by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital.” (a) leave of absence is granted to him under this section either indefinitely or for a specified period of more than seven consecutive days; or (b) a specified period is extended under this section such that the total period for which leave of absence will have been granted to him under this section exceeds seven consecutive days.[24]S. 17A provides for the making of community treatment orders, under which the responsible clinician may discharge from hospital a detained patient who is still in need of treatment, subject to a liability for recall. A person subject to such an order is referred to as a “community patient”. By s. 17D, such an order does not cause the application for admission for treatment made under s. 3 to cease to have effect. It is common ground that no such order has been made in this case.[25]By s. 23, a patient ceases to be liable to be detained if an order in writing discharging him absolutely from detention is made in accordance with that section.[26]S. 117 is headed “After-care”.[27]S. 117(1) provides:
“This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.”
[28]By s. 117(2), it shall be the duty of the CCG or Local Health Board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the CCG or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a community patient while he remains such a patient.[29]“After-care services” are defined at se. 117(6) as:
“services which have both of the following purposes – (a) meeting a need arising from or related to the person’s mental disorder; and (b) reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).” (a) meeting a need arising from or related to the person’s mental disorder; and (b) reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).”
[30]By s. 117(2E), the Secretary of State may by regulations provide that the duty imposed on the CCG by s. 117(2) is, in the circumstances or to the extent prescribed by the regulations, to be imposed instead on another CCG or the National Health Service Commissioning Board. Regulations. The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 have been made under this provision. Their proper interpretation is the subject of issue (iv) identified above.[31]Reference should also be made to the statutory Code of Practice made under s. 118 of the MHA (“the Code”). Chapter 27 of the Code deals with leave of absence under s. 17, and Chapter 33 deals with after-care services under s. 117. Paragraph 26.26 states that the duty on local authorities and CCGs to provide after-care services “for certain patients who have been discharged from detention also applies to those patients while they are on leave of absence”. Paragraph 33.2 states that the duty under s. 117 applies to patients detained under s. 3 “who then cease to be detained”, and that it includes “patients granted leave of absence under section 17”. The importance to be attached to the Code as an expression of the policy applicable to the implementation of the MHA is common ground in this case. It is also common ground, however, that the Code cannot dictate the proper construction of the MHA. The Claimant’s submissions under issue (i)[32]The Claimant submits that the pre-conditions set out in s. 117(1) of the MHA are met whenever a patient who is detained under s. 3 is granted leave of absence under s. 17, and leaves the hospital pursuant to that leave of absence, 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. Such a patient remains liable to be detained, but is not actually detained at the hospital for the duration of the leave of absence; and, when he or she leaves the hospital premises, has “left hospital”.[33]The implication of this submission is that the relevant CCG and local authority become obliged to provide after care services during the period of each leave of absence (which may be for an hour or even less), provided that the services meet the definition in s. 117(6).[34]The Claimant supports this submission by reference to the decision of Sullivan J in R v Richmond London Borough Council, ex parte Watson and others (1999) 2 CCLR 402. The main issue in these proceedings was whether local authorities were permitted to charge for after-care services. Sullivan J held that they were not. On that issue, the case was further appealed to the Court of Appeal and ultimately to the House of Lords, under the name of R v Manchester City Council, ex parte Stennett [2002] UKHL 34 [2002] 2 AC 1127, and his judgment was upheld.[35]One of the cases considered by Sullivan J concerned a patient detained under s. 3 who was granted leave of absence under s. 17 in order to live in a residential care home for a trial period. At page 417, after noting that undue weight could not be placed on the distinction between the use of the terms “detained” or “liable to be detained” under the MHA, Sullivan J stated:
“In my view, [section 117] is dealing with a practical problem: what after care is to be provided for a patient who has suffered from mental illness requiring inpatient treatment when he actually leaves hospital? A person on leave under section 17 is in just as much, of not more, need of care when he leaves hospital as a person who leaves hospital subject to guardianship or supervision. For the purposes of section 117, he has ceased to be detained, and left hospital. It would be remarkable if, in such circumstances, there was no duty to provide him with after care under section 117, even though it would almost certainly have been a condition of his being given leave that he should reside in particular accommodation. This conclusion accords with the guidance that is set out in the Code, which I have already read.”
Discussion and conclusion[36]In my judgment, it is not correct that the s. 117 duty to provide after-care services is triggered whenever a patient detained under s. 3 is granted leave of absence under s. 17. The question is whether, on the facts of the particular case, the patient has ceased to be detained and has left hospital, satisfying the pre-conditions in s. 117(1).[37]I do not consider that these conditions can be equated simply with permission being granted to the patient to go outside the perimeter of the hospital, regardless of the circumstances in which he is allowed to do so. He 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 when outside the premises: compare the approach to the concept of “deprivation of liberty” set out in Surrey County Council v P and others [2014] UKSC 19 [2014] AC 896, at paragraphs 37, and 46 - 49.[38]Similarly, a patient may remain admitted to that hospital, and will not properly be regarded as having “left hospital”, even if he is allowed to go for a walk or a drive outside the grounds.[39]There is no inconsistency between this approach and the decision of Sullivan J in Watson. On the contrary, I consider that it is consistent with the purpose of s. 117, as identified in Watson. Watson concerned a patient who had been discharged from hospital to a care home on a trial basis. The particular issue that arises in this case was thus not before Sullivan J. Sullivan J identified s. 117 as being directed to the practical problem of the provision of after-care services to a patient when he has “actually left hospital” – in other words, when he has been discharged from the hospital’s care, whether permanently, or on a temporary or trial basis. The provision is intended to ensure that patients are provided with appropriate support and services (including accommodation and social care) after they cease to be under the care of a detaining hospital. That problem does not arise in circumstances where the patient has not been discharged from hospital, and remains at all times under the full-time residential care and custody of the hospital and its staff, but who is simply being permitted to take a short trip outside the hospital grounds. I note that Lord Phillips MR in R (K) v Camden and Islington Health Authority [2002] QB 198, referred at paragraph 29 to the s. 117 duty being imposed “for the benefit of patients who are discharged from mental hospital”, although it is right to say that the issue of the time when the duty under s. 117 first arose was not in issue in that case.[40]This interpretation is supported by and is consistent with the wording of s. 117 itself, as well as its purpose identified above. In particular: i) The phrase “after-care services” suggests services provided after the end of a period detained in hospital; ii) S. 117(1) refers to the patient having “left hospital”, not “left the hospital”. As a matter of ordinary language, the phrase “left hospital” is commonly used to refer to discharge from the care of a hospital, rather than simply leaving the premises for any period of time or any reason. If one person asks another “have you left hospital yet?” they are not asking whether they have gone outside for a shopping trip. I note that, by contrast, s. 17(4) refers to a patient on leave as “absent from a hospital”. In short, a person may be “absent from a hospital” (eg., to go on a short trip outside the grounds), without having “left hospital”. iii) S. 117(3)(c), addressing the identity of the CCG or Local Health Board responsible for providing after-care services, refers to 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”. This implies that discharge will have preceded the triggering of the duty under s. 117(1); iv) The definition of after-care services in s. 117(6) requires them to have as one of their purposes reducing the risk of a “deterioration” of the person’s mental condition “and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder”. It is very difficult to see how this purpose could be pursued in the case of a person whose mental condition has at all material times been such that they are required to be (and have been) admitted to a hospital for treatment. The obvious implication of s. 117(6) is that the whole of this section is directed at persons who have become well enough to be discharged from the care of a hospital, albeit on a trial basis.[41]Neither do I consider that there is any inconsistency between this interpretation and the provisions of the Code. The Code rightly stresses at paragraph 27.26 that the s. 117 duty applies to patients discharged from detention in hospital who are on leave of absence under s. 17. However, it does not purport to suggest that any leave of absence under s. 17, even when the patient has not been discharged from hospital, would engage s. 117. Even if it did, it could not override what I consider to be the clear terms of the MHA itself.[42]On the facts of this case, I consider that it is clear that the Claimant remained at all times detained in the Hospital, and that he had not “left hospital”, even when he was enjoying leave of absence under s. 17. The leave of absence granted to him permitted short excursions by bus, and required him to be escorted and supervised at all times by two members of the Hospital’s staff. He was at all times deprived of his liberty, and under the care and control of the Hospital. He was thus detained by the Hospital even when permitted leave of absence. He was also at all times resident in and admitted to the Hospital, and could not be said to have “left hospital”. He had not been discharged.[43]Accordingly, no duty under s. 117 was triggered in this case. The remaining issues[44]In these circumstances, the remaining issues I have identified do not arise. They raise a number of issues of law, which I do not propose to decide on a purely hypothetical basis. However, as noted above, I should stress that I do not consider that the evidence before me is sufficient to show one way or the other that the Claimant’s mother’s visits were necessary to reduce the risk of a deterioration in the Claimant’s mental condition, or that the Defendants, or Dr Carter, have fully and thoroughly addressed that question. In those circumstances, had I found that the s. 117(1) duty was triggered, I would have required the decision to refuse funding to be reconsidered, specifically addressing the test under s. 117(6).[45]Accordingly, for the reasons set out above, this claim for judicial review is dismissed.