Your questions answered on mental health aftercare

Legal trainer Belinda Schwehr answers practitioners' questions about the law on mental health aftercare and how it interacts with the Care Act

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By Belinda Schwehr

The questions answered here are drawn from Belinda’s training sessions and webinars.

What aftercare is

What is section 117 (s117) aftercare, who gets it, and why is it free?

It’s a package of care that is designed to put a person back on their feet after a period of compulsory detention under particular sections of the Mental Health Act – and to keep a person well enough to avoid readmission to hospital. It has to be related to their mental disorder and not the rest of their needs. One qualifies for it on leaving hospital; so people on leave from hospital under section 17 of the Mental Health Act, those released on a community treatment order as well as people discharged from the sections in question, all qualify. It’s free regardless of one’s financial position because there is no charging provision applicable to the function, and the function is not a gateway through to ordinary chargeable social services or NHS functions. It’s funded by health and social services together, in undefined shares, as a truly joint legal duty.

Where does it fit, between Care Act rights and NHS rights? What about continuing healthcare (CHC) rights?

It’s not a Care Act service: there are no eligibility criteria to inform or standardise how professional discretion is exercised, so it’s left very much up to the Care Programme Approach and local practice rules. The government’s view is that as soon as one leaves a psychiatric hospital, the status pops up and excludes the mental health needs being met under other less generous functions. One can have CHC status for physical needs, but not for those related to one’s mental disorder if one has been compulsorily sectioned. It’s able to be cross-subsidised, and many local authorities have different custom and practice compacts with their health services equivalents, for s117 delivery. Some do 50/50 of whatever has to be commissioned; some try ‘as if’ to apply the CHC concepts and funding implications of ‘priority’ and ‘severe’ in relation to quality and quantity of needs amounting to ‘primary health need’, and some do splits on the basis of the type of purchased service fitting with what the relevant commissioner is simply used to buying.

What is able to be inside an s117 plan? When would one leave housing out – since everyone ‘needs’ a house?

The concept of ‘aftercare’ is not defined, and consistently with guidance, can include anything that meets the statutory purpose. But since many people have housing, or can access accommodation on coming out of hospital, having s117 status is not the same as the question of need; the State doesn’t have to provide that which is able to be accessed universally, and many mental patients are able to be helped to secure housing through other agencies’ functions, based on their vulnerability. Some people, however, do need housing to be provided (ie contracted for, or arranged) by the council, and an example is when a person needs supervision of a specialist nature in order to keep their symptoms at bay or take emergency action to re-section them or take steps under the Mental Capacity Act. Other reasons may be related to a person’s anti-social tendencies (for which they’d not be seen as culpable for, on account of their disorder, but which could nevertheless make it impossible for the person to manage their own housing problem) or to their capacity to sign a tenancy or manage their affairs.

Ending a s117 arrangement

How long does s117 go on for, and how can it be ended?

The status lasts for as long as one or other of the partners believes that the person still needs the services by way of aftercare (ie for the statutory purpose of avoiding readmission). The duration is not therefore related to a person’s diagnosis, prognosis, reliance on primary or outpatient care or specialist services, in and of themselves; the purpose is the essence of the duration issue. The difficulty is that someone’s lack of contact with community-based staff may be on account of their progress, but also potentially related to their deterioration. One does not need a meeting to bring an s117 arrangement to an end, as such, if both partners agree that the purpose of the services has been fulfilled. There is guidance to the effect that there can be no set period, and no assumptions; and there is joint Local Government Ombudsman and Public and Health Services Ombudsman guidance that the absence of paperwork evidencing agreement between the partners does not preclude a finding that the person’s entitlement to s117 care should not be regarded as continuing, merely on account of the lack of formal termination.

Are there special rules about direct payments and choice of accommodation for s117 patients?

Yes. The Care Act ushered in an assumption that there was nothing special about s117 patients in relation to not being granted direct payments, but getting one is still dependent on the council thinking it’s an appropriate way of meeting needs. A person with a mental disorder need not necessarily have someone to help them manage a direct payment or take one in the third party’s name, but may be more likely to need someone to do so through the appointment of a suitable person to act as ‘authorised’ under the Care Act direct payment regulations.

The NHS aspect of an s117 package could be provided by way of a personal health budget but the community mental nursing services are not merely service provision; they are an essential part of monitoring the wellbeing of people who may need to be re-sectioned, and are therefore harder to substitute through notions of choice. So there is no particular experience of personal health budgets for the NHS portion of the s117 package, although anecdotally I have heard of payments for hotel breaks for respite, where nurses visit to do injections.

Choice of accommodation provider rights are extended to s117 patients, in placement mode, at least, albeit not for tenants of supported living – tenants make their choice when signing a tenancy independently – and the placement has to be suitable, in order to be chosen. The comparable rate for the calculation of a top-up is done by reference to the council’s usual rate, because there is no entitlement to a personal budget for an s117 patient as s/he is not receiving services under the Care Act. The client or a relative or any third party can pay the top-up, even though the principal part of the package for the meeting of need is paid for by the State.

Liability for aftercare

Which CCG is the liable (responsible) commissioner for the NHS part of an s117?

The CCG where the person was registered with a GP practice or usually resident before they were sectioned is the one that must organise the s117 package, and that CCG remains liable, even if the person has to be placed out of area, unless the person is compulsorily detained again (ie freshly sectioned). If that happens, the GP registration rules are applied again, afresh. The idea of the changes brought in by regulations from 1 April 2016 was to bring the s117 commissioning responsibility of the NHS element in line geographically with the likely responsibility for the social care element, but that might not always work, for reasons set out below!

Which council is responsible for planning the local authority aspect of an s117 care plan?

The Care Act amended s117, from stating that the responsible local authority was where the person was resident before being sectioned, to stating that it was the authority where the person was ‘ordinarily’ resident when they were sectioned. The deeming rules, under which a person retains their ordinary residence when placed by a council out of area under the Care Act in one form of specified accommodation or another, are not extended to the s117 provisions about the allocation of responsibility.

The government asserts that a person’s deemed ordinary residence before they are sectioned is not relevant to the question of which local authority is responsible for providing aftercare. The This means that the person is likely to lose continuity of care planning, and that the amendment has made no difference to this group of people. There is no example in the Care Act guidance dealing with this sort of a scenario, which is frustrating. The examples that are given indicate that the amendment from ‘resident’ to ordinarily resident in s117 has made no difference for capacitated individuals, which is a bizarre outcome for a legislative amendment. There is no real addressing of the question as to how mental health planning staff are supposed to investigate the mental capacity, on the part of the detained patient, to have moved to the place where they were living when sectioned – as would be required, if the government’s interpretation of its own changes is correct.

The 2015 Cornwall decision in the Supreme Court concluded that where there is a break between statutes – for example, when a person moves from the jurisdiction of the Children Act 1989 to the Care Act 2014 – the courts should not apply the law so as to reward a council for exporting a patient out of area, and leaving them to deteriorate, if that can be avoided. This suggests to me that the government’s interpretation may not be upheld if challenged.

When someone comes out of NHS accommodation, ie hospital, they are deemed not to have changed their place of ordinary residence from before they entered hospital, and no one has ever suggested that deemed ordinary residence, through a council placement, at that point, was not sufficient to determine where that prior responsibility lay. So it is at least arguable that the government is wrong about how the courts would interpret the statutory provision – in the same way as it was wrong in the Cornwall case.

Ordinary residence and the Care Act

Which council is responsible for aftercare when a person is also receiving Care Act services? 

If a person has a need for accommodation to be part and parcel of the s117 plan, then their Care Act services are to be provided by the same council that is the s117 council. This is set out in section 39(4) of the Care Act. By implication, if accommodation is not required to be in the s117 plan, there is no such assumption and the provision of Care Act services will be dependent on the standard rules of ordinary residence – turning on voluntariness for ordinary settled living purposes.

If a person’s s117 care package ends because it fails and the person is re-sectioned, then s117(3) of the Mental Health Act looks back to where they were ordinarily resident prior to the latest detention to determine which council is responsible for their subsequent aftercare. This is subject to the controversy alluded to above about the situation of a person who had deemed ordinary residence at that point, due to having been state funded in accommodation for one reason or another. However, if the s117 package ends because it succeeds, and the person no longer qualifies for free care, but then needs Care Act or NHS services, then it’s possible that professionals need to look to wherever the person has ended up for ongoing care to determine which authority is responsible. This is unless they were on an s117 package but with Care Act ‘specified’ accommodation running in parallel, eg on account of physical needs for personal care as opposed to needs relating to stabilising a mental disorder. In that case, there is no change in LA responsibility unless or until the person is ordinary residence.

The remaining controversy is what happens for people who have been in hospital on a section 2 (assessment) or on a voluntary basis, and then need social care – without the s117 complication. Being in a hospital would not normally affect one’s place of ordinary residence – one doesn’t go to ‘live’ in a hospital; s2 sectioning is not voluntary either. There’s a provision in the Care Act making that assumption explicit – but the pre-Care Act case law suggests that one can be regarded as living in a hospital, as a voluntary patient, if one has lost one’s accommodation during an in-patient spell.

Determinations from the Secretary of State are the only way forward and they are slow to emerge, for reasons that are entirely unclear.

Belinda Schwehr, Care and Health Law

Tel: 01252 725890

Email: belinda@careandhealthlaw.com

Website: www.schwehroncare.co.uk

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