Who qualifies for S117?
The person who has been detained ‘P’ becomes eligible for S117 aftercare if they have been detained under sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA) and then they are discharged from hospital.
What does S117 mean?
S117 places an enforceable duty on both Health (Clinical Commissioning Group (CCG)) and Social (local authority/Council (LA)) Services to provide aftercare services to P on discharge from hospital. Neither the CCG nor the LA can charge for the services engaged to meet those needs – s117 aftercare is free.
The duty on the CCG or LA is to meet P’s after care needs. They do have discretion as to how these needs are met and can take into account resource and funding implications. The Care Act 2014 (CA), however, now provides that P could pay a top up to the S117 aftercare if they so wish (s.75 CA), for example the aftercare need was residential care and P (or the person managing P’s funds) wanted to pay extra to stay in a more expensive residential home.
Who are the CCG and LA?
Which CCG and LA are responsible for P’s after care needs should be identified at the time of P’s admission to hospital and are determined by where P was ‘ordinarily resident’ at the time they were detained under the MHA.
The concept of Ordinary Resident has been developed by case law and Department of Health Guidance and is generally the place in which P was living (residing or present) at the time their detention under s. 3, 37, 45A, 47 or 48 began.
Sometimes however it is not as clear as this, for example, because they were accommodated out of area by one local authority and subsequently detained. This type of scenario has now been clarified by the Care Act 2014, and the ordinary residence would be the place in which they were residing or present prior to being accommodated by the LA (s.39). The Care Act also provides (s.40 CA) the process in which authorities who cannot agree on Ordinary Residence can ask the Secretary of State to resolve the dispute.
It is important to note that ‘P’, once receiving S117 aftercare, may choose to move to another location, and in these circumstance the CCG and LA can commission services in that new area and negotiate with the CCG and LA from that area to transfer responsibility. If P moves and is subsequently detained again in the new area then the S117 would then be the CCG and LA for the area in which P was ordinarily resident
What is aftercare?
An aftercare service is a service provided or arranged to meet a need which has been identified arising from or related to P’s mental disorder. This can be a need to treat a mental disorder and/or to prevent a deterioration in a mental disorder (and therefore reducing the risk of P being returned to hospital). It is less than clear as to whether s.117 would apply if someone was detained with (say schizophrenia) and some years later their aftercare need was as a result of a different mental disorder (say dementia). No doubt case law with clarify this shortly.
An aftercare service is defined in the Care Act and can be provided for a broad range of needs, as long as the need is arising from the mental disorder, and the service helps reduce the likelihood of deterioration of that disorder. It does not just include immediate health and social care, but can also include, for example, employment support, a service to meet cultural or spiritual needs, or as service to assist ‘P’ in learning, regaining or enhancing skills to assist with living in the community (and remaining out of hospital).
Special provisions in respect of accommodation
In respect of accommodation, because all of us have a need for accommodation this is not automatically covered by s.117. However, if a person requires a specialist accommodate arising out of their mental disorder, for example supported or residential accommodation, then that would be a after need that came under s.117.
How does it begin?
The duty to provide s117 aftercare services is triggered by P’s discharge from hospital, however, as soon as P is detained under MHA, planning for discharge should begin. Steps should be taken to identify the appropriate aftercares services necessary to meet P’s needs before they are discharged.
If the Responsible Clinician (RC) is considering discharge, they should consider whether P’s aftercare needs have been identified and addressed. This would also apply in cases where the RC is granting ‘P’ extended S17 leave.
If P is having either a Hospital Managers Hearing or a Mental Health Tribunal then the CCG and LA must be notified as they will be expected to provide information as to what aftercare arrangements could be made available. There ought to be a care plan ‘at least in embryo’ for them to consider. The Tribunal has issued Practice Directions as to exactly what information they require (Practice Direction, First-Tier Tribunal Health, Education and Social Care Chamber, Statements and Reports in Mental Health Cases).
How long does S.117 aftercare last?
Aftercare lasts as long as there is a need to be met, and must remain in place until such a time that both the CCG and LA are satisfied that P no longer has needs that require aftercare services
P’s needs can be reviewed periodically by the CCG and LA, and aftercare can be altered as needs change.
s. 117 cannot be withdrawn without reassessing P’s needs. P must be fully involved in any decision-making process with regards to the ending of aftercare, including, if appropriate consultation with ‘P’s’ carer/s and advocate.
Aftercare cannot be withdrawn simply because someone has been discharged from specialist MH services, or an arbitrary period has passed, or they have been returned to hospital and/or further detained under MHA and/or MCA.
If aftercare is withdrawn they can be reinstated in the event it becomes obvious that withdrawing the services was premature or unlawful.
P is entitled to refuse aftercare services and cannot be forced to accept them. It is important to note that just because P may refuse services, this does not automatically mean that there is not a need, and therefore does not automatically mean that aftercare services can be withdrawn.
It may well be that whilst receiving s117 aftercare for a mental disorder they require services for a separate physical or mental disorder, care for these would need to be addressed by a separate care plan under the CA.
S117 MHA – http://www.legislation.gov.uk/ukpga/1983/20/section/117
MHA Code of Practice –http://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpgacop_20050009_en.pdf
MHA Reference Guide – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/417412/Reference_Guide.pdf
CA – http://www.legislation.gov.uk/ukpga/2014/23/contents
CA Statutory Guidance – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506202/23902777_Care_Act_Book.pdf
Practice Direction, First-Tier Tribunal Health, Education and Social Care Chamber, Statements and Reports in Mental Health Cases –