Mind rights guide 6: Community care and aftercare

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What is community care?
How does the CPA relate to it?
How do I get community care services?
Which authority will assess me and provide services?
Can they take away my services?
What is the difference between community care and aftercare?
What is 'section 117 aftercare'?
Can my aftercare include being rehoused?
When does section 117 aftercare end?
Can I insist on the care I want?
My family look after me. What support can they get?
I don’t want any services. Do I have to have them?
What is supervised discharge?
When does supervised discharge end?
What is guardianship?
Can anyone stop guardianship from happening?
When does guardianship end?
Can I be charged for my community care services?
What can I do if I disagree about my care services?
Legal definitions
Useful organisations
Further reading

This booklet is designed to answer some of the more common questions about obtaining mental health support services in the community or on leaving hospital. It is not, however, a substitute for a statement of the law or for legal advice. Public funding may be available to pay for professional advice from a solicitor. This is means-tested (so it depends on your income and savings) for most purposes. If you want advice from a solicitor who has knowledge of community care law and issues, you can contact Mind, which has a legal network of local solicitors. Alternatively, you can search the Community Legal Service Directory for specialist advice in community care. The directory is available in libraries and is also on the internet. (See Useful organisations for details of this and other organisations.)

Legal terms, as they appear in the Mental Health Act (MHA) 1983, are printed in bold when they are used for the first time in this booklet (subsequently, they appear in ordinary type). Some definitions are set out below. To keep the guide as straightforward as possible, we have kept technical terms to a minimum and have summarised the effects of the law and good practice, where appropriate. Where we use section numbers, they are from the MHA.

What is community care?

This describes the various services, such as nursing support, day centres, home help, counselling or supported accommodation, available to help individuals manage their physical and mental health problems in the community. It’s usually arranged by social services departments or Community Mental Health Teams (CMHTs) through your local Healthcare Trust.

How does the CPA relate to it?

Under the Care Programme Approach (CPA) all those with significant mental health needs should be given a care plan, and a care coordinator to assess and arrange services for them. Those whose needs are relatively straightforward are put on ‘standard’ CPA, while people with more complex needs are on ‘enhanced’ CPA. However, people with mental health problems who are not on CPA are still entitled to an assessment of their community care needs.

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How do I get community care services?

The starting point is a community care assessment. Everyone who may be in need of services – which includes anyone with known mental or physical health problems – is entitled to have their needs assessed. This should be done as part of the CMHT’s work if you are on the CPA, but otherwise it’s arranged by social services with help from health care staff. It should take place within a reasonable time of them becoming aware that you may need support. If there are any problems, the legal responsibility for assessing your community support needs rests with social services.

You don't have to make a formal application for a community care assessment. If social services know that you may need support – for example, if you are on the CPA – they should arrange an assessment without you having to ask for it.

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Which authority will assess me and provide services?

The legal responsibility rests with the local authority or CMHT where you have your regular home or where you were living before hospital admission. If you have no settled home, the responsibility lies with the authority where you are at the moment.

If you have recently moved, particularly if you are in temporary accommodation, your past and present local authority may disagree about who is responsible for you. If necessary, they can ask the Department of Health (DoH) to decide. Until then, the council where you currently live must arrange for your needs to be assessed and provide any services needed.

Can they take away my services?

Community care services can be withdrawn if you no longer need them. However, they must reassess your needs first.

What is the difference between community care and aftercare?

‘Aftercare’ simply refers to the services that help someone to settle back into the community after being in hospital. For most people, their aftercare needs will be worked out following a community care assessment. Ideally, this will take place before the person leaves hospital. The aftercare package could include any or all of the community care services.

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What is 'section 117 aftercare'?

Section 117 of the Mental Health Act (MHA) puts a joint duty on health and social services to arrange aftercare for certain people when they leave hospital. It applies to anyone who has been detained (‘sectioned’) in hospital under the treatment sections of the MHA (sections 3 and 37, including 37/41), or who has been transferred for treatment from prison to hospital (under sections 47 and 48).

The purpose of section 117 aftercare is to stabilise the person back in the community, to prevent him or her from having to be readmitted to hospital. Section 117 aftercare does not have to include any specific services. It’s up to health and social services to decide what they think the person needs. It's free of charge to the person concerned (see Can I be charged for my community care services below). The process is similar to the assessment for community care services, but a section 117 needs assessment should take place in hospital, before discharge.

Section 117 will still apply if you come off section 3 but stay in hospital voluntarily. The aftercare will start when you leave hospital, even if this is not immediately after your detention ends. It also applies to those who are still on section 3 who are on extended leave from hospital, and to patients on conditional discharge. People detained for assessment under section 2 of the MHA are not entitled to section 117 aftercare (though they should still be assessed for community-based services, as described above).

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Can my aftercare include being rehoused?

People detained under sections 3, 37, 47 or 48 of the MHA should have their housing needs considered as part of their section 117 aftercare plan. If they will be homeless, or can’t be expected to return to where they previously lived, accommodation (probably in a hostel, care home or other supported housing) should normally be arranged. People who were detained for assessment only, or were in hospital ‘informally’ (voluntarily), can also have their accommodation needs considered as part of their community care assessment, if they are in need of ‘care and attention’ in their accommodation.

When does section 117 aftercare end?

Section 117 says that the Health Trust and social services department dealing with your case must make a joint decision that you no longer need aftercare. Before aftercare is ended, your needs must be reassessed. It is unlawful to set a cut-off date in advance.

The law does not define what ‘no longer needing aftercare’ means. This is left to health and social services to decide, though their decision must be justifiable. It would normally be reasonable to end your aftercare entitlement once your health is stable and you are not in danger of relapsing. For people with significant and long-term support needs, who are likely to relapse if services are withdrawn, it might not be reasonable to withdraw their section 117 aftercare for a long time, or even at all.

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Can I insist on the care I want?

There is a duty to 'assess your needs'. However, this does not mean that you are entitled to receive any specific service. Services will only be provided if you are assessed as 'needing' them, and if it is 'necessary to provide them'. The final decision as to 'need' rests with health and social services. There is no duty on the authorities to provide a service if someone else, such as a carer or a voluntary agency, is able to do so.

Your position is stronger if you were detained for treatment and so entitled to section 117 aftercare (see previous question). But, once again, it’s up to health and social services to decide what your aftercare package includes. You may not receive the services you want unless the authorities agree you need them. If your life will be seriously affected without support – for example, if you are unable to leave the house to buy food, and no one else is available to help you – it is unlawful not to arrange an appropriate service. However, most decisions are not so clearcut.

In particular, many service users believe that they will benefit from some form of therapy, but it’s hard to prove that they ‘need’ it. (See below for information about challenging an assessment.)

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My family look after me. What support can they get?

People who provide a significant amount of care to someone eligible for community care services are entitled to have their own needs assessed, for example for home help support or occasional holidays from caring. This assessment should take place when social services know that it’s needed, and can be carried out at any stage.

Once again, the entitlement to an assessment does not necessarily mean that your carers will get the services they are asking for. This will depend on their 'needs'.

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I don't want any services. Do I have to have them?

While you are living in the community, and are not on any 'section' of the MHA, you are entitled to refuse any services – medical, nursing or social work – offered to you.

If you have made a good recovery and are coping well at home, health and social services might agree to leave you alone, even if they believe you would benefit from services.

However, if they believe that you are at risk of becoming ill again, but you refuse services that they think you need, they may consider using MHA powers to require you to engage with them. These could include the use of supervised discharge before you leave hospital, guardianship if you are already in the community, or even hospital admission under 'section'. So, if you do not want to receive services, you may need to satisfy the authorities that you will not become a risk to yourself or to anyone else.

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What is supervised discharge?

This is more properly called 'aftercare under supervision' and was introduced to prevent patients with continuing mental health problems withdrawing from aftercare services, and then having to be readmitted (the so-called 'revolving door' patients). It's designed to meet a patient’s medical needs. It's only available for patients who are over 16 and who are currently detained in hospital under section 3 or 37 of the MHA.

The law and procedure is set out in sections 25A-J of the MHA. The doctor in charge of the person's treatment – the Responsible Medical Officer (RMO) – applies for him or her to be supervised in the community when he or she leaves hospital. The application is made to the health authority after consulting the patient and healthcare staff, both in hospital and in the community, and the person's Nearest Relative (NR), if practicable.

The grounds are that:

• The patient has one of the four categories of mental disorder (mental illness, severe mental impairment, mental impairment or psychopathic disorder) that are required for admission under section 3.
• There would be a substantial risk of serious harm to his or her health or safety, or to the safety of anyone else, or of the person being seriously exploited, if he or she did not receive section 117 aftercare services.
• Being on supervised discharge is likely to help him or her to receive these services.

The supervision is carried out by a community-based psychiatrist, known as the Community Responsible Medical Officer (CRMO), who may require the person to live at a specified place, to attend at specified places or times for medical treatment, occupation or training, and to allow the supervisor, any other doctor or an Approved Social Worker (ASW) to enter their current home. The supervisor can arrange to have the person taken home or elsewhere for treatment, but can’t detain him or her there.

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When does supervised discharge end?

Supervised discharge lasts for up to six months and can be renewed for a further six months, and then for periods of a year at a time. The bodies responsible for the patient's aftercare have to keep reviewing it. They must consider readmitting the person to hospital instead, if it’s not working.

However, if it's no longer needed, the CRMO should end it. The patient or his or her NR can also apply to a Mental Health Review Tribunal for it to be discharged.

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What is guardianship?

This is a way of encouraging people living in the community to engage with services or to live in a particular place. Unlike supervised discharge, it’s used for those whose needs are more social than medical, but who find it hard to accept support. It’s particularly relevant for people who don’t have the mental capacity to avoid danger or exploitation.

Under section 7 of the MHA, an ASW can apply for someone over 16 to be received into guardianship. The application is supported by recommendations from two doctors, one of whom must be a psychiatrist, who must agree that:

• The person is suffering from one of the four specified categories of mental disorder.
• The disorder is of a ‘nature’ (type) or ‘degree’ (seriousness) that warrants guardianship.
• It’s needed for his or her welfare, or to protect others.

The application is made to the social services department. If they accept it, they can appoint a social worker as guardian or any other person who is willing to act.

The guardian can require the person to live at a specified place, to attend at particular places or times for treatment, occupation, education or training, and to allow a doctor, ASW or other specified person to enter where he or she is living.

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Can anyone stop guardianship from happening?

The person concerned can't prevent it. However, before applying, the ASW must consult the person’s NR, if it is reasonably practicable to do so and would not involve undesirable delay. If the NR objects, a county court judge may agree to ‘displace’ him or her and appoint someone else (normally a social worker) as Acting Nearest Relative. This will happen if the judge decides that the objection is unreasonable. The NR should be given the opportunity to explain to the court why he or she is objecting, unless the matter is urgent.

The judge can also appoint an Acting Nearest Relative if there is no one available to play that role, or if the NR is unfit to carry out the duties or is likely to discharge the person from guardianship without regard for his or her welfare.

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When does guardianship end?

Guardianship lasts for six months and can be renewed; first for a further six months and then for a year at a time. The person concerned can apply to a Mental Health Review Tribunal once in each of these periods for the guardianship to be discharged. The person's NR can also discharge the person from guardianship, unless he or she has been ‘displaced’ (see above), in which case he or she can apply to the tribunal instead.

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Can I be charged for my community care services?

Unless you are covered by section 117, social services are allowed to charge you for any community care services they arrange for you. They have to charge for accommodation they have arranged, even if you are required to live there under guardianship or supervised discharge.

How much you pay will depend on your finances, which are assessed by a means test. If your income and capital are below the limits set each year, you will only have to pay a proportion of the cost or perhaps nothing at all. You do not have to pay for NHS services.

People who are covered by section 117 can’t be charged for any services provided as part of their aftercare package. If you have been wrongly charged you can get the money repaid, with interest, provided your claim is not too late, so get legal advice without delay.

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What can I do if I disagree about my care services?

You can make a formal complaint to social services if you don’t agree with the result of your assessment, or if you have been waiting for one for an unreasonable length of time. Afterwards, if you are still not satisfied, you can take it to the Healthcare Commission, and possibly after that to the Ombudsman if you believe it has not been handled fairly. (See Useful organisations for more information.)

If your complaint relates to section 117 aftercare, you can complain to whoever is supposed to be arranging the assessment (either social services or the Health Trust). Again, you may be able to take your complaint to the Ombudsman, if it was not handled fairly.

In some circumstances, you may be able to take the case to court under 'judicial review'. However, the courts will not intervene unless the decision taken was either unlawful or so utterly unreasonable that it can’t be justified. If you believe you have a good case, get legal advice as soon as possible.

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Legal definitions

Approved Social Worker (ASW) – a social worker with specialist training in mental health, who provides community care support and makes decisions about compulsory admission to hospital.

Care Programme Approach (CPA) – Government's scheme for caring for people with mental health needs outside hospital.

Community Mental Health Team (CMHT) – the NHS-led team which provides mental health care support in the community. It employs psychiatrists, CPNs, psychologists and social workers.

Mental Health Review Tribunal – independent panel that decides if a patient should be discharged from compulsory detention or supervision.

Mental illness – one of the four forms of mental disorder. It is not defined but includes depression, schizophrenia and bipolar affective disorder.

Mental impairment – 'a state of arrested or incomplete development of mind, which includes significant impairment of intelligence and social functioning’, and which is ‘associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned'.

Nearest Relative (NR) – a specified family member who has various legal powers, including objecting to their relative being received into guardianship.

Psychopathic disorder – one of the four forms of mental disorder. It means 'a persistent disorder or disability of mind (whether or not including significant impairment of intelligence), which results in abnormally aggressive or irresponsible conduct on the part of the person concerned'.

Severe mental impairment – one of the four forms of mental disorder. The definition is the same as for 'mental impairment', except that the impairment is 'severe' rather than 'significant'.

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Useful organisations

Citizens Advice
115–123 Pentonville Road, London N1 9LZ
web: www.citizensadvice.org.uk

Community Legal Service Directory
web: www.clsdirect.org.uk

Healthcare Commission
Finsbury Tower, 103–105 Bunhill Row, London EC1Y 8TG
tel. 020 7448 9200
web: www.healthcarecommission.org.uk
Government body that aims to improve the quality of healthcare

The Law Society
Ipsley Court, Berrington Close, Worcestershire, B98 0TD
tel. 0870 606 6575
web: www.lawsociety.org.uk

Mental Health Act Commission
56 Hounds Gate, Nottingham NG1 6BG
tel. 0115 943 7100, fax: 0115 943 7101
web: www.mhac.trent.nhs.uk

Mind Legal Unit
Tel. 020 8519 2122

The Parliamentary and Health Service Ombudsman
Millbank Tower, Millbank, London SW1P 4QP
tel. 0845 015 4033
web: www.ombudsman.org.uk
Independent service investigating complaints about poor treatment or service provided through the NHS

Revolving Doors
Units 28–29, The Turnmill, 63 Clerkenwell Road, London EC1M 5NP
tel. 020 7253 4038
web: www.revolving-doors.co.uk
For people with mental health problems in contact with the criminal justice system

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Further reading

From psychiatric patient to citizen: overcoming discrimination and social exclusion L. Sayce (Macmillan 2000)
Getting the best from your approved social worker (ASW) (Mind 2004)
Good practice in adult mental health T. Ryan, J. Pritchard (JKP 2004)
How to cope with hospital admission (Mind 2004)
Legal rights and mental health: the Mind manual (Mind 2004) (ask about updates)
Mental Health Act 1983: an outline guide (Mind 2003)
The Mind guide to advocacy (Mind 2005)
Mind rights guide one: civil admission to hospital (Mind 2004)
Mind rights guide two: mental health and the police (Mind 2004)
Mind rights guide three: consent to medical treatment (Mind 2004)
Mind rights guide four: discharge from treatment (Mind 2005)
Mind rights guide five: mental health and the courts (Mind 2004)
Pure madness: how fear drives the mental health system J. Laurance (Routledge 2002)
Understanding borderline personality disorder (Mind 2004)
Understanding manic depression (bipolar disorder) (Mind 2003)
Understanding personality disorders (Mind 2004)
Understanding schizophrenia (Mind 2003)
Users and abusers of psychiatry: a critical look at psychiatric practice (2nd ed) L. Johnstone (Routledge 2000)
Users’ voices: the perspectives of mental health service users on community and hospital care D. Rose (The Sainsbury Centre for Mental Health 2001)
Ward Watch: Mind’s report on hospital conditions for mental health patients (Mind 2004)

For a catalogue of publications from Mind, send an A4 SAE to:
Mind Publications
15–19 Broadway
London E15 4BQ
tel. 0844 448 4448
fax: 020 8534 6399
email: publications@mind.org.uk
Visit the online shop to see details of all the publications stocked.

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This booklet was devised by Simon Foster
© Mind 2005
ISBN 1-903567-61-0
No reproduction without permission