Lee Parkhill to appear in the Supreme Court

Public Law and Judicial Review, Health and Social Care

Lee Parkhill will appear in the Supreme Court in an appeal that will clarify who funds care packages when patients are detained under the Mental Health Act on multiple occasions.

R (Worcestershire County Council) v Secretary of State for Health and Social Care will be heard on 27 April and will consider the operation of s. 117 of the Mental Health Act 1983, which imposes a duty to provide after-care to patients detained in hospital. The central issue is how s. 117 operates where a patient is detained on more than one occasion. It had long been understood (and reflected in the Secretary of State’s guidance) that a second period of detention cancelled any pre-existing s. 117 duty. However, in an ordinary residence determination concerning Worcestershire County Council, the Secretary of State rejected his own guidance, and decided that a second detention does not automatically end any pre-existing s. 117 duty.

Worcestershire challenged the determination in judicial review proceedings and succeeded in the High Court. However, on the Secretary of State’s appeal, the Court of Appeal ([2021] EWCA Civ 1957) agreed with the Secretary of State, and held that a second detention does not automatically end a pre-existing s. 117 duty.

For decades, local authorities and NHS bodies have accepted s. 117 responsibility on the understanding that fresh duties arose whenever a patient was released from a subsequent period of detention. Following the Court of Appeal’s judgment, the past allocation of responsibilities is now in doubt. Authorities face the prospect of requests to fund (prospectively and retrospectively) packages of care which, on the previously established position, were not their responsibility. Clarity as to the correct operation of s. 117 is therefore much needed.

Lee Parkhill represented Worcestershire in the High Court and in the Court of Appeal. He will be led by Andrew Sharland KC in the Supreme Court.