Aftercare under section 117 of the Mental Health Act

Who is entitled to aftercare?

Who is entitled to aftercare?

Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. However, Section 117 goes much further than this and imposes a duty on health and social services to provide aftercare services to certain patients who have been detained under the Mental Health Act.

Section 117 states that aftercare services must be provided to patients who have been detained in hospital:

• For treatment under Section 3
• Under a hospital order pursuant to Section 37 (with or without a restriction order) or
• Following transfer from prison under Section 47 or 48.

This also includes patients on authorised leave from hospital and patients who were previously detained under Section 3 but who stayed in hospital after discharge from section.

It also includes people who are living in the community subject to a community treatment order and restricted patients who have been conditionally discharged

However, Section 117 does not apply to:

• Patients detained in hospital for assessment under Section 2
• Patients detained in an emergency under Section 4
• Patients detained while already in hospital under Section 5(2)
• Patients who were not detained under any section (informal or voluntary patients);

Aftercare and the Care Programme Approach (CPA)

The care programme approach or CPA is a way in which mental healthcare is planned and delivered. It means that a person should be allocated a care coordinator, have multi-disciplinary care planning and review meetings and a written care plan.  Not all patients will receive mental healthcare under the CPA. Even if mental healthcare is not provided under the CPA, patients should have their aftercare needs assessed if they are likely to need services to support them in the community when they are discharged from hospital.

Aftercare should be planned with the patient, their family and carers, as well as professionals, looking at both health and social care needs. The type of aftercare required will depend on the circumstances of the individual and health and social services are entitled to consider their resources when assessing needs. The care plan should be reviewed at regular intervals.

In England, detained patients and people on community treatment orders conditionally discharged restricted patients and people subject to guardianship orders have the right to have an Independent Mental Health Advocate (IMHA) to support them in understanding their rights and expressing their views. All inpatients in Wales have the right to an IMHA. It may be helpful to ask for an IMHA to attend assessment and aftercare planning meetings.

Services provided to a person before admission to hospital, and which meet needs identified under Section 117, will become part of the aftercare package. Therefore, if someone was paying for their residential care before they were detained in hospital under Section 3, this will become part of their aftercare following discharge and responsibility for payment will pass to the clinical commissioning group, if the patient is in England  (in Wales, the local health board) or to the local social services authority. If medication was being paid for before detention then that should also be provided free of charge.

What is aftercare?

What is meant by s117 “aftercare”?

Aftercare services are not defined in the Mental Health Act but the Code of Practice to the Act provides a useful list of examples of services that could be part of an aftercare package. Section 117 therefore gives a considerable discretion to health and local authorities as to what services they provide. In addition to outpatient treatment, aftercare could include support from a community psychiatric nurse, counselling or therapy, social work, support with employment, accommodation or family relationships, assistance with benefits or managing money, the provision of domiciliary services and the use of day centre and residential facilities^[1].

Who is responsible for providing aftercare?

The patient’s clinical commissioning group in England (the local health board in Wales) together with the local social services authority is responsible for providing s 117 aftercare services. Services provided under Section 117 are “community care” services for the purposes of the National Health Service and Community Care Act 1990. A person who falls within the scope of this section may be in need of community care services and therefore must be assessed by the local authority, which then has a duty to provide those services which are identified as meeting the need.

There is no duty to provide particular services and the individual authorities will decide the nature and extent of the services provided when they have assessed the person’s needs for services. However, if a detained patient has been granted a conditional discharge, the Court of Appeal has ruled that the local authority must take reasonable steps to fulfil the conditions concerned ^[2].

In order to fulfil their obligations, in England, the clinical commissioning group (in Wales the local health board) together with the local social services authority must take reasonable steps to identify appropriate aftercare facilities for the patient before his or her discharge from hospital.

1. Guidance on this can be found in Chapter 27 of the Mental Health Act Code of Practice
2. R v Camden and Islington Health Authority ex parte K [2001] EWCA Civ 240

When does aftercare end and who pays?

When does aftercare end?

The duty to provide aftercare services under Section 117 ends when in England, the clinical commissioning group (in Wales, the local health board) and the local social services authority are both satisfied that the person concerned is no longer in need of such services. The authorities can only be satisfied that the person concerned is no longer in need of aftercare services if they have monitored that person’s progress in the community since discharge.

The duty to provide services continues until both authorities have come to a decision that the person no longer requires any services. Therefore, if any part of the care plan is continuing, such as regular out-patient appointments, it is not possible to say that the person no longer has aftercare needs. However, only those needs that are identified as part of the care plan will be provided free of charge.

A person should not be discharged from aftercare just because he or she has been discharged from the care of a consultant psychiatrist, or where an arbitrary period has elapsed, even if the person is well settled in the community.

Aftercare cannot be ended retrospectively. Services can only be withdrawn at the time the decision to end the service is taken. If the authorities decide to reduce any aftercare service or remove services altogether, they should carry out a reassessment to see how the person will manage without the services concerned. They should provide reasons for their decision and give the service user the opportunity to have the decision reviewed if the service user disagrees. The authorities should also notify any carer involved in providing support to the service user of the decision to reduce or terminate aftercare services.

Charging for aftercare

Aftercare under Section 117 must be provided free of charge.

In 2002 the House of Lords held that this section imposes a freestanding duty to provide aftercare services and not simply a gateway to other community care services. As there is no express power to charge for services provided under it, such services must be provided free of charge^[1].

The relevant clinical commissioning group or local social services authority must therefore fund all s 117 aftercare services. If someone chooses to make private arrangements for care, either in addition to or instead of, aftercare that should have been provided, it may be possible to claim repayment for this on the basis that the authority had failed to discharge their duties under Section 117. However, the authority or the court would be entitled to consider the reasonableness of the private arrangements and the level of reimbursement appropriate.

1. R v Manchester City Council ex parte Stennett [2002] UKHL 34

What if aftercare isn't provided

Remedies for a failure to provide s 117 aftercare

Although there is a positive duty to provide aftercare services under Section 117, there is discretion as to exactly what services are provided. A person who is dissatisfied because the clinical commissioning group in England (or in Wales, local health board) or local authority has not provided aftercare or has removed it without following the correct processes has the following options:

• Complaint to the clinical commissioning group in England or local health board in Wales

If the services provided are mainly health related, the complaint should be made to the complaints officer of the clinical commissioning group in England. In Wales, a complaint is called a concern and is raised with the local health board. Complaints must be made within 12 months of the date of the event, which gave rise to the complaint, or within 12 months of the patient becoming aware that there is something to complain about. This time limit can be extended where the person complaining can show good reason for not making the complaint within the time limit.

If the person is unhappy with the outcome of the complaint then in England they can take their complaint to the Parliamentary and Health Service Ombudsman who will investigate issues of maladministration and service failure leading to hardship or injustice, delay, incompetence, poor advice, failure to follow proper procedures or implement policies and bias.

In Wales, if a person is unhappy with the outcome of their concern then they can contact the Public Services Ombudsman for Wales.

• Complaint to the Local Authority

If the complaint relates to services provided by the local social services authority, it should be made to the complaints officer of the local authority. Complaints must be made within 12 months of the date of the event, which gave rise to the complaint, or within 12 months of the patient becoming aware that there is something to complain about. This time limit can be extended where the person complaining can show good reason for not making the complaint within the time limit. In Wales, there is a three-stage complaints procedure for social care complaints.

• The Local Government Ombudsman in England (LGO)

A person who is not happy with the outcome of their complaint about the local authority’s failure to provide services or withdrawal of services can take a complaint  to the Local Government Ombudsman (known sometimes by the initials LGO or with their full title, the Commissioner for Local Administration) if it is about injustice or maladministration. Maladministration includes delay, incompetence, poor advice, failure to follow proper procedures or implement policies and bias. In Wales, a person who is dissatisfied with the outcome of their complaint can take it to the Public Service Ombudsman for Wales if it is about service failure or maladministration.

• Legal Proceedings (Judicial Review)

Decisions taken or failures to take decisions by health authorities or social services authorities can in some circumstances be challenged by court proceedings known as “judicial review”. In judicial review proceedings, the court does not decide whether the actual decision is correct but looks at whether the decision was made properly, taking into account all relevant circumstances.

The court can quash (or annul) a decision by an authority, order an authority (with or without directions) to make a decision or comply with a legal obligation, make a statement about the law (a declaration) or stop an authority from acting in a certain way (an injunction).

Decisions made by hospital authorities or social services authorities can be challenged for a number of reasons. These include where there has been:

• a failure to take into account relevant factors
• a failure to disregard irrelevant factors
• a failure to correctly apply the law
• a decision which is perverse or made in bad faith
• a blanket policy which has been wrongly adopted, or
• a decision made in breach of the rules of natural justice.

Strict time limits apply to cases of judicial review and proceedings must normally be taken within three months of the date of the decision which is to be challenged.

• Legal Proceedings (Negligence)

A full explanation of the law of negligence is beyond the scope of this briefing note. However, if a hospital or local authority fails to take reasonable care when making a decision about aftercare services, or unreasonably fails to provide appropriate services, a person could potentially have a claim for negligence if he or she has suffered damage or injury as a result. Claims for personal injury must normally be brought within three years from the date of the alleged breach of duty.

Recovering money paid by mistake

If someone has been charged for Section 117 aftercare services, the Ombudsman has confirmed that the local authority has a duty to refund them. In the first instance, the person concerned should write to the relevant authority, asking for full reimbursement, giving details of what money has been paid, and for how long payments have been made. Authorities should pay interest on this amount. Local authorities should take the initiative in identifying people who have been charged wrongly for aftercare. If money due is not repaid reasonably promptly, then a complaint can be made to the Local Government Ombudsman. Alternatively, legal proceedings could be brought for restitution of money paid under a mistake of law or pursuant to an unlawful demand. Special limitation periods apply to when proceedings can be brought and the law in this area is quite complicated, so it is important to seek legal advice before taking any action. Claimants should be aware that if they are successful in a claim for restitution this may affect their position with regard to benefits.

Supported accommodation

The provision of supported accommodation and the way it is funded is undergoing changes. As a result, many supported living and care home providers are offering tenancies rather than traditional placements. If someone is to be a tenant then they will normally be asked to sign a tenancy agreement, which makes them liable to pay rent. For many people the rent will be paid by Housing Benefit and so they may not really notice that they are paying for their accommodation.

However, Housing Benefit is means tested and so a significant number of people will not be eligible to have their rent paid in this way. If the accommodation is provided as part of the aftercare package (as it usually would be in a group or care home) it should be provided free of charge.

Useful contacts

• Local Authorities

Complaints should be addressed to the complaints officer at the relevant authority.

• Local Government Ombudsman for England

There are three Local Government Ombudsmen for England. Enquiries should be addressed to:

Local Government Ombudsman
PO Box 4771
Coventry
CV4 0EH

The Local Government Advice Team can be contacted Monday to Friday from 8.30am to 5.00pm:

Tel: 0300 061 0614 or 0845 602 1983
Email: advice@lgo.org.uk
www.lgo.org.uk

• Parliamentary and Health Service Ombudsman for England

Enquiries relating to health complaints in England should be addressed to:

Health Service Ombudsman
11^th Floor
Millbank Tower
Millbank
London SW1P 4QP

Complaints Helpline: 0345 015 4033
The Helpline is open 8:30am to 5:30pm Monday to Friday.
Email: phso.enquiries@ombudsman.org.uk
www.ombudsman.org.uk

• Public Services Ombudsman for Wales

The Ombudsman can look into complaints about local government, National Health Service organisations - including GPs - housing associations and the Welsh Assembly Government.

Public Services Ombudsman For Wales,
1 Ffordd yr Hen Gae,
Pencoed,
CF35 5LJ

Tel: 0845 601 0987
Email: ask@ombudsman-wales.org.uk
www.ombudsman-wales.org.uk

Further information 

This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.

For further information about the work of Mind's legal unit, please read about the Legal Unit. This is also available in hard copy (telephone 020 8519 2122).

For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law.

Details of where to seek specialist advice can be obtained from the Law Society, telephone 0870 606 2555 or from Civil Legal Advice, telephone: 0845 345 4 345, minicom: 0845 609 6677 Monday to Friday, 9am to 8pm Saturday, 9am to 12:30pm.

Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.

Mind Legal Unit
April 2013