10 November 2017, by Tim Baldwin
The Court of Appeal determined that a person discharged from liability to be detained under s 3 Mental Health Act 1983 (MHA 1983) but who still required “after-care services” pursuant to s 117 of the Act was entitled to have his local authority provide such services under s 117 at any time before he had exhausted sums awarded to him in respect of costs of care for the injury he suffered.
Facts: Manchester City Council appealed against the decision, Tinsley v Manchester City Council  EWHC 2855, that it was unlawful for it to refuse to provide after-care services to Mr Tinsley. Mr Tinsley was involved in a road traffic accident in 1998. He developed an organic personality disorder which led to him being detained under s 3 MHA 1983. He was then discharged to a nursing home funded by Manchester City Council under s 117 MHA 1983. Further, Mr Tinsley brought a personal injury claim against the driver who caused him injury in the road traffic accident and was awarded damages, which included £2.89 million for the costs of future care. Mr Tinsley left the nursing home and from then on funded his accommodation and after-care services out of the damages award for future care. As Mr Tinsley lacked capacity to manage his affairs, his deputy, who had been appointed by the Court of Protection, was concerned that Mr Tinsley would not be able to sustain the funding for his care arrangements and argued that Manchester City Council should comply with its statutory duty to provide after-care services under s 117 without charge. Manchester City Council refused this on the basis that Mr Tinsley had no need for such provision as he could fund it from his personal injury damages. In a claim of judicial review Manchester City Council’s decision was determined to be unlawful. Manchester City Council appealed this decision on the basis that on the true construction of s 117, it was not obliged to provide after-care services as Mr Tinsley had been awarded damages for future care and that to allow such claims offended the principle against double recovery.
Judgment: On dismissing Manchester City Council’s appeal, the court held that on the true construction of s 117 MHA 1983 a refusal to pay for after-care services by Manchester City Council was effectively the same as providing such services but charging for them. Following the House of Lords in R. (on the application of Stennett) v Manchester City Council  UKHL 34,  2 A.C. 1127 it was clear that charging persons such as Mr Tinsley for after-care services pursuant to s 117 was impermissible.
Moreover, if an application was made to a local authority for after-care services in general, that local authority could not take into account the fact that a claimant had been awarded personal injury damages which were being administered by the Court of Protection. The court held it would be an anomaly if such damages had to be disregarded for mentally ill patients who had not been compulsorily admitted to hospital, but had to be taken into account for patients who had been admitted and detained under the MHA 1983 (see Crofton v NHS Litigation Authority  EWCA Civ 71,  1 W.L.R. 923). Furthermore s 117 imposed the duty to provide after-care services not only on local authorities but also on clinical commissioning groups (CCGs), it was a joint duty. It is the case that CCGs cannot charge for their services or take patients’ means into account in deciding what services to provide and it would be odd if local authorities could decide not to make provision for after-care services by reason of any personal injury award, but could so decide in relation to “what is essentially a health-related form of care and treatment”. The court further held that unless there was some specific inhibition on deputies appointed by the Court of Protection arising from the risk of double recovery, there was no reason why Mr Tinsley should not claim the benefit he might be entitled under s 117 MHA 1983 which Parliament had provided for.
On the issue of double recovery, courts would seek to avoid double recovery when they assessed damages against a negligent tortfeasor. Therefore, if it was clear at trial a claimant would seek to rely on a local authority’s provision of after-care services, he would not be able to recover the cost of providing such services from the tortfeasor. However, it did not follow if a claimant was awarded damages for his after-care, he was thereafter precluded from making an application to a local authority. Manchester City Council relied on Peters v East Midlands SHA  EWCA Civ 145,  Q.B. 48 to submit that no claim could be made against it unless it was shown Mr Tinsley’s funds were about to run out. However, the Court of Appeal determined that in Peters the court’s judgment on that point was obiter and it had not considered the position under s 117 MHA 1983, but only under the National Assistance Act 1948 where the words “otherwise available” were of critical importance. Also, undertakings given in that case were not to protect the local authority but the tortfeasor. Furthermore if it was the law that under s 117 MHA 1983 a claimant could only claim against a local authority for after-care services once an award for such services against a tortfeasor had been, or about to be, exhausted, it would be for the Administrative Court to decide (Reeves, Re  W.T.L.R. 509).