6.9 Section 117 Aftercare

1. Introduction

Section 117 of the Mental Health Act 1983 (2007) imposes a duty upon local authorities and Clinical Commissioning Groups (CCG) to provide aftercare services for  anybody who has been  detained under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA). This includes patients granted leave of absence under Section 17 and patients being discharged on community treatment orders (CTOs). The Care Act 2014 implemented some changes to the MHA (see Section 7, Care Act Amendments to Aftercare under the Mental Health Act 1983).

Section 3 of the Act is most commonly used. Anybody detained under this section can be detained to a psychiatric hospital for a period of up to six months, and is most likely to include people with organic conditions such as dementia or Alzheimer’s disease, and those with functional illnesses such as depression, schizophrenia and bi-polar disorder. Some people with personality disorders (PD) may be detained. This is an area of some debate as PD itself is deemed to be untreatable (by medication), but at times there are no other options available to keep a person safe. The other sections relate to restricted patients and hospital orders as directed by the Court.

As Section 117 enforces a duty on the local health authority and adult social care services to provide care to meet eligible needs, Section 117 needs that arise directly because of or from the person’s mental disorder and are likely to prevent a deterioration in their condition and therefore lead to a readmission. If a person has additional social care needs, such as a physical disability, that do not arise because of a mental disorder, the usual social care eligibility criteria under the Care and Support Statutory Guidance would need to be applied to these needs.

If, at any point, it becomes apparent that a person who is be eligible for Section 117 aftercare has been paying for services, they can reclaim these payments as long as with clear evidence is provided of their detention.

2. Section 117 Discharge Planning Meeting

The purpose of Section 117 aftercare is to provide any support, care and / or treatment that an eligible person may require to remain well and reduce any risk of deterioration to their mental health, requiring a readmission to hospital.

Aftercare can be provided through various services, dependant on the individual’s needs.

Before a person is to be discharged from hospital there should be a Section 117 discharge planning meeting. This allows all relevant professionals to discuss and agree with the person, and their family as appropriate, what care is required and how their identified needs can be met.

The Mental Health Act 1983 Code of Practice (2015) notes that discharge planning should be considered from the point of admission so that plans for discharge are discussed throughout the duration of their detention. This ensures that a clear discharge plan is developed outlining all support networks in order to give individuals the best possible chance to manage well in the community when discharged.

Aftercare planning should be carried out in line with the Care Programme Approach (CPA). This is the framework used by mental health practitioners when supporting individuals with a mental disorder.

The CPA allocates a care co-ordinator, who is an individual worker responsible for the ongoing assessment, planning and review of a person’s care and / or treatment. The CPA adopts a multi-disciplinary approach to provide effective and coordinated support. The Care Plan should be developed jointly with the individual who will be receiving the support.

The care plan should cover each of the following, where appropriate:

• treatment plan, inclusive of any therapies;
• any prescribed medications;
• physical health concerns;
• support needs and how each of these needs are to be met;
• carer support;
• how to manage any deterioration to a person’s mental health;
• provision of a crisis management plan.

The focus of care planning is to promote recovery and reduce any further relapse within a person’s mental health.

3. Community Treatment Orders

Anybody subject to sections 3, 37, 45A, or 47 can be discharged from hospital on a Community Treatment Order (CTO).

A CTO allows for conditions to be attached to a person’s discharge.

The person should be in agreement with the conditions as they must comply with the conditions in order to avoid recall to hospital. Aftercare services can also be received by those discharged on a CTO.

4. Provision of Section 117 Aftercare

Aftercare is not limited to services commissioned by the local authority. Employment services, voluntary opportunities, and spiritual and cultural support can also be used to meet a person’s needs for example.

An asset based approached (also known as strength based approach) should be used when considering the care needs of any individual subject to Section 117. In some cases, the individual may require a long term placement such as nursing care, residential care, supported accommodation or other specialist care. These services will also be funded under Section 117 aftercare.

Some authorities may have different routes to access funding depending on the cost of the care package. Those which exceed standard care costs may have to be presented at additional funding panel. However, it is important to note that all care package costs are covered under Section 117.

Aftercare can be made available as a direct payment if this is requested by the individual.

5. Funding Responsibilities for Section 117 Aftercare

The relevant social services authority for the funding of Section 117 is usually that where the person was ordinarily resident prior to being detained (see Ordinary Residence).

Guidance issued by NHS England (April 2016): Who Pays? Determining Responsibility for Payments to Providers states that the original CCG remains responsible for the health part of a person’s Section 117 aftercare funding, once they have been discharged into the community.

Any disputes between authorities with regard to the responsibility of Section 117 and ordinary residents are to be determined by the Secretary of State for Health.

It is the responsibility of the local authority to hold a register of all those subject to Section 117 within the authority.

For those whose needs would be deemed as responsibility of the NHS Commissioning Board (NHS England) rather than that of the CCG, application to NHS England should be made to ensure that services and arrangements are made as required.

The judgement in Tinsley v Manchester City Council & Ors [2017] EWCA Civ 170 reiterates the point that any services provided as part of a person’s s117 aftercare cannot be means tested.  This applies even in the case of a person such as Mr Tinsley, who had already received several million pounds for the cost of his future care; the result of a successful compensation claim following a road traffic accident. The Judgement held that he was still entitled to s117 aftercare from the local authority despite being in receipt of money for future care. The local authority argued that this was an affront to the principle of double recovery as Mr Tinsley had already recovered for the future cost of care provision, however the local authority was unsuccessful.

6. Section 117 and NHS Continuing Healthcare

See also Continuing Healthcare (CQC).

The National Framework for NHS Continuing Health Care (CHC) advises that it is not necessary to assess eligibility for NHS CHC if all the services in question are to be provided as aftercare under Section 117. If not all services are to be provided under Section 117 aftercare, however, a CHC screen and subsequent DST (decision support tool) can be completed by the nurse assessor. It recommends that local policy is provided to outline how authorities identify commissioning responsibilities (customer to include local policy).

7. Care Act Amendments to Aftercare under the Mental Health Act 1983

Section 75 of the Care Act 2014 clarifies the meaning of aftercare and makes minor amendments to section 117 of the Mental Health Act 1983. The changes remove anomalies in determining the responsible local authority in relation to the provision of aftercare services under the 1983 Act to people who have been detained in hospital for treatment of mental disorder and the provision of care and support services to which the Act applies.

It also inserts a new section 117A into the 1983 Act. This allows regulations which enable a person to express a preference for particular accommodation to be provided under section 117 (see Assessment and Self-Assessment and Choice of Accommodation and Additional Payments). It also makes a number of modifications to the application of certain provisions of the Act to enable direct payments to continue to be made in respect of section 117 services (see Direct Payments).

Section 39 of the Care Act applies to a person who is provided with accommodation as part of their aftercare, under the MHA. They should be ordinarily resident in the area of the local authority who is responsible for their aftercare. Section 39 also applies to anyone who receives aftercare on leaving hospital (on or after 1 April 2015), irrespective of the date that they were discharged from detention under Section 117.

The Act clarifies that local authorities may commission as well as provide section 117 services. A clinical commissioning group, however, is under a duty to commission rather than provide section 117 services.

The Act applies the ordinary residence rules (see Ordinary Residence) to section 117 in order to avoid anomalies which can currently arise where one local authority is responsible for commissioning section 117 services whilst another commissions any other services a person may need. The Secretary of State can resolve disputes as to which authority is liable to commission section 117 services, which could previously only be resolved through the courts.

8. Reviewing Section 117 Aftercare

Although not stipulated in the MHA Code of Practice (2015), it is good practice to hold an annual review of Section 117 entitlement to ensure that the person’s needs are being met correctly. This may be linked in with a CPA review. It also provides opportunity to assess if Section 117 entitlement is still required and / or if the individual still wishes to remain subject to it.

9. Rescinding Section 117

Although the right to aftercare under Section 117 does not have period of expiry, it can be ended. This is often known as rescinding or being discharged from Section 117. If it is felt that a person no longer requires aftercare services, for example if a person has fully recovered from their illness, the local authority or the individual themselves can request for the Section 117 status to be removed.

For it to be removed the decision is to be agreed by both the relevant CGG and the local authority, who must be satisfied that removal of Section 117 is appropriate. It is good practice for this to be done in a formal meeting in which the entitled individual can have a representative present, for example a relative, friend or advocate.

The entitlement to Section 117 should not be should not be removed if a person is still receiving any services that are in place for recovery / maintenance of a mental health condition. A person should not be discharged from Section 117 aftercare for any of the following reasons:

• being discharged from specialist mental health services, such as a community mental health team (CMHT);
• any length of time passing since discharge from the relevant section;
• further admission to hospital on either a voluntary basis or under section 2 of the MHA;
• the date of a CTO expiring;
• refusal of aftercare services.

Although Section 117 provides free aftercare, a person should never be sectioned just to achieve free care. Whilst section 117 entitlement provides free aftercare, however, such services must have the purpose of ‘meeting a need arising from or related to the person’s mental disorder’ and ‘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.’

Any person who is deprived if their liberty in hospital as per the acid test set down in the Supreme Court’s decision in Cheshire West i.e. “they lack capacity to decide on their place of care and residence, are under continuous supervision and control and are not free to leave”, and are receiving treatment for a mental disorder on a psychiatric ward should be detained under the MHA 1983.

There is no longer a role for the Mental Capacity Act (2005) and Deprivation of Liberty Safeguards (2007) which may have been used in a number of cases previously (see Interface between Mental Capacity Act 2005 and Mental Health Act 1989 (amended 2007).