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claim allowed to proceed in restitution for failure to provide s.117 MHA 1983 after-care services

17 August 2016

A recent judgment by Mr Justice Newey in Richards v Worcestershire County Council and another could have implications for local authorities and CCGs providing after-care services to patients.

The claimant had been detained under section 3 of the Mental Health Act 1983. On his discharge, he was then to receive after-care services under s.117 of the 1983 Act and it was the LA and CCG’s joint responsibility to commission those services. However, when he was discharged the claimant went into a care home which he paid for privately.

The claimant brought a claim in restitution for £644,645.87 for money spent on the basis that the LA and CCG should have provided him with s.117 after-care. The defendants applied to strike out his claim and argued that there was no private law cause of action arising out of a failure to carry out duties under s.117, rather the claimant should pursue the case via public law remedies.

The judge held that the claim can proceed in restitution against the defendants as there had been mistakes made by the deputy and it seemed “payments made on his behalf served to relieve the defendants of liabilities which they ought to have been bearing under section 117”. The claimant has not won his case yet but could this decision open the door to extending private law claims to this area?

CCGs and local authorities should take note of this decision and the potential for it to open the door to patients to make a claim in restitution in circumstances where a patient has not received after-care services that should have been commissioned and have had to privately pay for care themselves due to mistakes. The judge was clear that the claimant did not have to pursue a case by way of judicial review.

It will be interesting to see if this decision is appealed and how this case progresses.

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