Ed Mitchell highlights an often forgotten corner of the community care legislation, section 117 of the Mental Health Act 1983
Section 117 is the sore thumb of community care legislation. It obliges councils and the NHS to provide aftercare services, including a care home place if that is needed, for people who have been discharged from hospital having been detained for treatment under the Mental Health Act 1983.
It sticks out because section 117 services must be provided free of charge regardless of means. This point can be missed by councils dealing with older people with organic mental disorders who are discharged after being “sectioned” for treatment. Because they often look like, and have similar needs to, other older people, it may be wrongly assumed that the usual care home charging rules apply. Alternatively, knowledge that section 117 services are free may pervert the needs assessment and care planning process.
The extent of non-compliance with section 117 is shown by numerous published local government ombudsman decisions on the topic. The most important from the past two years are explained below.
The Poole case
A section 117 service, in the form of a domiciliary care package, was provided in a woman’s own home after she had been discharged from hospital. The package was constructed on the basis that her main carer was her husband. He then had a stroke and could no longer provide care. Poole Council decided that this was a relevant change of circumstances which justified discharging section 117.
The service user’s son then stepped in and paid for a care home place. But in September 2007 the local government ombudsman found maladministration – the husband’s stroke could not possibly have meant that aftercare was no longer needed. Poole agreed to pay the son £33,000 compensation.
The Bath & North East Somerset case
Some councils are too quick to decide that a person is no longer entitled to a section 117 placement. This happened in December 2007 in the case of an older woman who had been sectioned for two months for in-patient dementia treatment. She was discharged to a free section 117 care home place. Three years later, Bath & North East Somerset Council decided that she no longer needed section 117 aftercare because, as they put it, she was “settled” in the care home. As a result, she became liable to pay for the placement herself.
The local government ombudsman found maladministration. The fact that a person is settled is irrelevant. It said the key question is: “Would removal of this person (settled or not) from this nursing or residential home mean that she is at risk of readmission to hospital. If the answer is yes then the person cannot be discharged from aftercare.”
The council then agreed that they had remained responsible for the care home fees throughout.
The York case
This was probably the worst case. An older person with severe depression was compulsorily admitted to hospital for treatment. Her discharge plan was for residential care. York Council told her family that it would take a year to arrange a section 117 care home placement.
As a result, the family sold the service user’s flat in order to pay the fees themselves. She was then discharged from hospital but not before social workers had persuaded the family to “sign away” all her rights to section 117 services. This was maladministration.
Section 117 rights cannot be signed away. In January 2006, the LGO recommended that the council repay the family £30,000 in care home fees and continue to pay the fees under section 117.
Ed Mitchell is a solicitor and editor of Social Care Law Today
Published in the 29 January 2009 edition of Community Care under the heading ‘The Councils that Shirk their Responsibility to Pay for Care’