United Kingdom House of Lords Decisions

HOUSE OF LORDS

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Steyn Lord Hutton Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ON 25 JULY 2002

[2002] UKHL 34

LORD SLYNN OF HADLEY

My Lords,

    1. I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Steyn. For the reasons he gives I too would dismiss the appeal.

LORD MACKAY OF CLASHFERN

My Lords,

    2. I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. For the reasons that he has given and with which I agree, I would dismiss these appeals.

LORD STEYN

My Lords,

    3. In 1982 Parliament placed a duty on health authorities and local social services authorities to provide after-care services for persons in their areas who have been discharged from compulsory detention under provisions of the Mental Health Act 1959: section 51 of the Mental Health (Amendment) Act 1982. In the next year this provision became section 117 of the consolidated Mental Health Act 1983. Although the provision has been on the statute book for nearly 20 years it still is a matter of controversy whether the authorities are legally entitled to charge for after-care services.

    4. The Department of Health has consistently taken the view that health authorities and social services authorities may not charge for services which they render in consequence of their duty under section 117. A circular under the heading "Advice Note for Use by Social Services Inspectorate" issued by the Department of Health in January 1994 dealt with the point. Paragraph 2 reads as follows:

"2. Section 117 of the Mental Health Act 1983 imposes duties on local social services authorities and health authorities to provide after-care services (which may include home care services). Services provided under section 117 of the Mental Health Act 1983 are not subject to charging under section 17 of the 1983 Act."

    In response to a Parliamentary question in July 1998 the government stated that "charges cannot be levied for services, residential or non-residential, which are provided as part of the programme of after care for a patient . . . under section 117": Hansard Written Answers, 28 July 1998, col. 172. Nevertheless, there has been for many years confusion on this point among social services authorities and health authorities. The House was told that about two-thirds of the authorities charge for such services and one third do not. The question whether such charging is authorised by statute has substantial resource implications. While one views unverified figures with some scepticism, it was said that the annual sum so recovered by authorities was of the order of £31m and that, if repayment has to be made of charges levied since 1993, the sum involved may be about £80m. Higher figures given to the Court of Appeal were apparently wrong: R v Richmond upon Thames London Borough Council, Ex p Watson [2001] QB 370. Behind these figures lie, no doubt, innumerable tragic personal stories of mentally ill individuals, who were charged for after-care services.

    5. It has been the policy of successive governments to shift mentally ill patients from the institutional care of the National Health Service to care in the community: - Bridget Dimond, Legal Aspects of Care in the Community, 1997, p 1. The point is therefore of great importance.

    6. The three cases before the House all involve mentally ill persons who were formally admitted to hospital under section 3 of the 1983 Act. They were discharged and placed in caring residential accommodation. The local social services authorities involved charged them for the provision of after-care services. The lawfulness of the decisions to charge by the authorities was challenged in judicial review proceedings. In careful judgments delivered by Sullivan J on 28 July 1999 ([2000] LGR 318) and by the Court of Appeal (Otton and Buxton LLJ and Hooper J [2001] QB 370) on 27 July 2000 it was ruled that there is no right to charge for after-care services. (Since the decision in the Court of Appeal Mary Watson has died. There are now only three appeals.) On appeal to the House the rulings made below have been challenged on behalf of the authorities.

    7. The central question is whether section 117 authorises and requires the provision of the "after-care services" or whether it merely operates as a gateway section to trigger provisions under other statutory provisions. If the first view prevails, it is common ground there is no right to charge for the after-care services because section 117 itself contains no charging provision. On the other hand, if the second view is correct, the authorities may charge under other provisions even in cases covered by section 117. The three cases before the House concern the provision of caring residential accommodation to formerly detained mentally ill patients. But exactly the same issue could arise in respect of the other after-care services provided under section 117(2), eg psychiatric treatment. In respect of residential accommodation the relevant other provision under which it is said that charging was authorised is section 21 of the National Assistance Act 1948. Section 21 contains an express charging provision.

    8. For convenience of discussion I set out the material parts of section 117 as amended in 1995 and 1997:

"(1) 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.

It shall be the duty of the Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Health Authority 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 patient who is subject to after-care under supervision at any time while he remains so subject.

(2A) it shall be the duty of the Health Authority to secure that at all times while a patient is subject to after-care under supervision -

a person who is a registered medical practitioner approved for the purposes of section 12 above by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder is in charge of the medical treatment provided for the patient as part of the after-care services provided for him under this section; and

. . ."

(Emphasis added)

It is important to note that section 117 applies to two primary classes of persons, viz mentally disabled persons detained for treatment under section 3 of the 1983 Act or by virtue of a hospital order made by the court pursuant to section 37. In addition section 117 applies to smaller classes of persons detained under hospital directions made by the Crown Court under section 45A or transfer directions made by the Secretary of State under sections 47 and 48. All classes of person to whom section 117 extends are exceptionally vulnerable persons.

    9. Next it is necessary to identify what is embraced in the concept "after-care services" in section 117(2). There is no issue on this point. In Clunis v Camden and Islington Health Authority [1998] QB 978, 992 Beldam LJ observed on behalf of the Court of Appeal:

"After-care services are not defined in the Act of 1983. They would normally include social work, support in helping the ex-patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities."

It is common ground that this was a correct description. It is agreed that caring residential accommodation is within the scope of section 117(2).

    10. It is now possible to address directly the issue before the House. If Parliament had intended by section 117(2) to provide that after-care services would be provided under other statutory provisions, one would have expected section 117(2) to specify the statutory provisions to be triggered. Such a gateway provision would require appropriate wording. For a model of such a gateway provision one only needs to turn to section 2 of the Chronically Sick and Disabled Persons Act 1970. Instead section 117 is free-standing. It imposes a duty on the authorities to provide the after-care services and to continue to do so "until such time as . . . the person concerned is no longer in need of such services". That specific duty must be carried out in respect of each particular individual person to whom section 117 applies. In my view section 117(2) is incapable of being read as a duty to secure the provision of such services under unnamed other enactments. Indeed sub-section (2A)(a) refers to "after-care services provided . . . under this section". Similarly, elsewhere in the 1983 Act there are repeated express references to "after-care services provided under section 117": see sections 25A to 25H. (Emphasis added) This use of language is inconsistent with the services being provided under other statutory provisions. No parliamentary draftsman, charged with the task of producing a gateway provision, could conceivably have produced a text without any wording to indicate a gateway provision and with so many counter indications strewn over it.

    11. Counsel for the authorities accepted in oral argument that there was a duty under section 117 to provide the after-care services. Given the imperative language of section 117(2) this concession could not be avoided. But counsel disputed that there was any power under section 117 to provide the after-care services. He said the power must be found in other statutory provisions. While attractively presented I have to say that this is a very contrived argument. The natural and obvious interpretation of section 117(2) is that the duty by necessary implication imports a concomitant power to carry out the duty. If this view is correct, the result is that it is difficult to maintain a credible argument that the services were rendered under other provisions.

    12. On appeal to the House counsel for the authorities also put forward a somewhat different argument. He argued that section 117(2) simply contains the general duty on authorities to co-operate about discharged patients. In the face of the imperative language providing that the authorities "shall . . . provide . . . after-care services" until "the person concerned is no longer in need of such services" this contention is untenable. In any event, section 22 of the National Health Service Act 1977 already provides, in appropriately worded language, for co-operation between health authorities and local authorities. It was therefore unnecessary to enact section 117(2) for the limited purpose of creating such a duty to co-operate.

    13. Nevertheless, I am prepared to stand back and consider whether the interpretation of section 117 by the courts below lead to an anomalous result. As his trump card counsel for the appellant authorities referred the House to a comment by Jones, Mental Health Act Manualö 7th ed (2001), on the consequence of the Court of Appeal decision in the present case. The author contrasted the following two hypothetical cases, at p 400, para 1-967:

"Case 1. A 50-year-old man with pre-senile dementia is admitted informally to hospital as a compliant mentally incompetent patient. He is assessed as requiring residential care on his discharge from hospital. He will almost certainly require such accommodation for the rest of his life. He will be charged for the accommodation by virtue of section 22 of the National Assistance Act.

Case 2. A 50 year-old man with pre-senile dementia and with identical needs to the man in Case 1 is admitted to hospital under section 3 of this Act because he happened not to be compliant when the crisis in his mental health occurred. He is assessed as requiring residential care on his discharge from hospital. He will almost certainly require such accommodation for the rest of his life. He will be provided with the accommodation without charge because he comes within the scope of section 117."

Counsel described this as the anomaly of the compliant and non-compliant patients in adjacent beds. In my opinion this view is too simplistic. There may well be a reasonable view that generally patients compulsorily admitted under sections 3 and 37 pose greater risks upon discharge to themselves and others than compliant patients. Moreover, Parliament necessarily legislates for the generality of cases.

    14. In the Court of Appeal Buxton LJ observed (at p 386B-C) that:

"the statutory provision is not at all anomalous, and not at all surprising. The persons referred to in section 117(1) are an identifiable and exceptionally vulnerable class. To their inherent vulnerability they add the burden, and the responsibility for the medical and social service authorities, of having been compulsorily detained. It is entirely proper that special provision should be made for them to receive after-care, and it would be surprising, rather than the reverse, if they were required to pay for what is essentially a health-related form of care and treatment."

I agree. I would only add a few comments. The policy is that "Compulsory admission powers should only be exercised in the last resort," eg only in very serious cases: para 2.7 of the Code of Practice issued by the Secretary of State for Health pursuant to section 118 of the 1983 Act. A principal factor in making a decision to admit is "the danger the patient presents to him or herself or others": para 2.7 of the Code of Practice. In practice section 117 will in a large measure cover patients whose mental illness is such that they pose a risk to themselves or others.

    15. The consequences of acceding to the arguments of the authorities would be far reaching. Under section 72 of the 1983 Act a detained patient may apply to a mental health tribunal for discharge. On discharge pursuant to a direction by a tribunal a patient may often still require medical and other care. Clearly, caring residential care (ensuring, for example, that prescribed medication is taken) may be essential. It takes the place of the hospital environment. It can hardly be said that the mentally ill patient freely chooses such accommodation. Charging them in these circumstances may be surprising. Moreover, under section 73 of the 1983 Act in respect of restricted patients (ie patients in respect of whom a restriction direction under section 41 of the 1983 Act has been made), the tribunal is empowered to impose conditions of discharge upon the patient with which the patient is obliged to comply, eg in respect of residence and treatment. The Home Secretary also has the power at any time thereafter to impose conditions upon the patient. Plainly in such cases the patients do not voluntarily avail themselves of the after care-services. If the argument of the authorities is accepted that there is a power to charge these patients such a view of the law would not be testimony to our society attaching a high value to the need to care after the exceptionally vulnerable. In my view the consequentialist arguments do not assist the case of the authorities. They militate in favour of the interpretation upheld by Sullivan J and the Court of Appeal.

    16. There was an argument advanced on behalf of the appellant authorities based on taking into account Hansard material. It was a hopeless attempt. The parliamentary material relied on throws no light whatever on the question of construction before the House.

    17. For these reasons, I would dismiss the appeal.

LORD HUTTON

My Lords,

    18. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Steyn. I agree with it and for the reasons which he gives I also would dismiss this appeal.

LORD MILLETT

My Lords,

    19. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Steyn. I agree with it, and for the reasons he gives I, too, would dismiss the appeal.