What constitutes s.117 aftercare services?

Under Section 117 of the Mental Health Act 1983 (the "MHA"), Local Authorities ("LAs") and Clinical Commissioning Groups ("CCGs") have a joint duty to provide mental health aftercare services for people who have been detained in hospital for treatment under certain qualifying provisions[1] of the MHA and who require it. In recent years, legislation such as the Health and Social Care Act 2012 (the "HSCA"), the Care Act 2014 (the "Care Act"), and various regulations made and statutory guidance issued under these statutes have implemented substantial changes to the provision of and responsibility for s.117 aftercare services. Indeed, s.117 has been transformed from two simple paragraphs into a lengthy and complex section of the MHA. In order to provide a detailed overview of the changes to s.117 aftercare services, Bevan Brittan will publish a series of articles addressing these important changes and their practical implications. This first article will look at what constitutes s.117 aftercare services.

1: What constitutes s.117 aftercare services?

The Care Act 2014 appears to have widened the definition of what constitutes s.117 aftercare services.

A Wider Definition

Prior to the Care Act, there was no statutory definition of the term "aftercare services." A number of examples of services that could amount to aftercare were set out in a series of cases. The primary test applied was derived from R (on the application of Mwanza) v Greenwich LBC (2010) as:-

"a service which is (1) provided in order to meet an assessed need that arises from a person's mental disorder; and (2) aimed at reducing that person's chance of being re-admitted to hospital for treatment for that disorder."[2] (our emphasis)

On 1 April 2015, the Care Act came into force and inserted the following statutory definition[3] of aftercare services into s.117 MHA:-

"In this section, "after-care services, in relation to a person, means services which have both the following purposes –

(i) meet a need arising from or relating to a person’s mental disorder; and

(ii) reducing the risk of a deterioration of a person’s mental condition (and accordingly, reduces the risk of the person requiring admission to a hospital again for treatment for the disorder)." (our emphasis)

In our view, this statutory definition greatly widens the scope of s.117 aftercare services. In particular, the new statutory test no longer requires that the need must arise from the mental disorder; it is sufficient that it is related to the mental disorder (a much broader category). This essentially converts the test from a 'but for' test (i.e. "but for" the mental disorder, the patient would not require that service) to a less onerous test of relation (i.e. that the need for the service is "related to" the mental disorder). It no longer requires a causal connection. This is significant, as a test based on a simple relation to the mental disorder could include anything which:

• impacts on; or
• is impacted by

the mental disorder.

In addition, the new statutory test also omits the requirement that the need arising from or relating to a person's mental disorder is an "assessed" need. Although in reality, an assessment will still be required to determine whether a need arises from or relates to a mental disorder, the removal of the requirement of a formal assessment does suggest a change in emphasis and a departure from the idea that the discretion to assess need lies solely with the professionals.

For example, the new test arguably provides firmer grounds for a patient and/or their family to "do the assessing" and identify and determine that a need arises from or is related to the mental disorder. This may result in there being more disagreements and disputes as to the scope of an aftercare service going forwards. Previously, such disagreements were determined firmly in the favour of professional assessors; going forwards, this is not quite so certain. The ultimate professional discretion arising from the need having to be "assessed" (indicating a clinical, professional judgement) has been removed.

The widening of the definition of aftercare services is also evident in the Guidance issued under the Care Act 2014.[4] This Guidance makes it clear that CCGs and LAs should interpret the definition of aftercare services broadly. As such aftercare services could include:-

• Healthcare;
• Social care;
• Employment services;
• Supported accommodation;[5]
• Services to meet the person’s wider social, cultural and spiritual needs (previously case law^[6] suggested that helping an ex-patient with problems of family relationships could be an aftercare service however the meeting of social, cultural and spiritual needs is much broader); and
• Services that support a person in regaining or enhancing their skills, or learning new skills, in order to cope with life outside the hospital.

The inclusion of the latter two services on the list above represent the most significant additions and provides grounds for greatly expanding what might be viewed as s.117 services.

Appropriate Limitations on the Scope in Practice

Professionals should address aftercare services in a stepwise fashion:

1. What is the mental disorder for which the patient was/is detained under a qualifying provision of the MHA?
2. What are the patient's needs directly arising from or related to that/those mental disorder(s)?
3. What services are required to meet that/those needs?
4. Which of those services are required to reduce the risk of a deterioration in the patient's mental condition? And
5. Which of those services are required to reduce the risk of the patient requiring admission to hospital for that/those mental disorder(s)?

In assessing and determining the above, professionals should be consulting with both the patient and their family; with any relevant views being taken fully into account and given the appropriate weight in light of the new statutory test.

It is clear that the trend, led by the Government, is for a widening of the scope and application of s.117 aftercare. Professionals should keep this in mind when determining appropriate services.

We can see the force in an argument that a service is required to reduce the general risk of a general deterioration in mental state requiring admission to hospital rather than a strict requirement to reduce the risk due to the particular mental disorder for which they were previously detained under a qualifying provision.

When considering the appropriate services required to meet a person's s.117 aftercare needs, CCGs and LAs should keep in mind that it is open to both public authorities to make "direct payments" to the person (if they have capacity) or a nominee/authorised person (if the person lacks capacity), subject to certain pre-requisites being met.^[7]

We would strongly advise that a regular system of review of aftercare packages is established; to ensure that the assessment is up to date and only appropriate services are commissioned. Jointly, the CCG and LA are able to determine that a service user is no longer eligible for aftercare; but this must be done jointly and cannot be done retrospectively. The Code of Practice makes it clear that if s.117 aftercare services are withdrawn prematurely, there is a responsibly to reinstate them (Paragraph 33.22). The fact that a person is settled and doing well, is not, in and of itself a reason to discharge s.117 aftercare; it may continue to be required to maintain the settled and well-presentation. You cannot discharge a person from the need for s.117 aftercare services for the duration that they remain on a CTO.

As a last cautionary note, do not equate a refusal to accept offered s.117 aftercare services with that person no longer having a need for s.117 aftercare services. That being said, a capacitated person is not under any obligation to accept offered s.117 aftercare services; careful records should be kept where this circumstance arises and the person's refusal and capacity should be reviewed at regular intervals.

 

Practical Implications

Taking the statutory and guidance changes together, it becomes clear that the type of services that might be provided by a CCG / LA as aftercare services has been greatly widened. In short, services that are far more removed from the mental disorder may now be considered as an aftercare service.  We provide three worked examples below:-

Example 1: Patient A suffers from schizophrenia. As a result of her schizophrenia, she has a tendency to become neglectful of her daily basic needs, including eating regular meals. If patient A does become neglectful with food, this often leads to her becoming neglectful of her self-care needs generally, in particular her medication which greatly increases the risk of deterioration and re-admission to hospital. To ameliorate this risk, Patient A might argue that the commissioner should meet the educational costs of a cookery course as the new skill of cookery would help to reduce the risk any self-neglect materialising.

Example 2: Patient B suffers from severe depression and has been detained following a severe episode that was triggered by feelings of isolation and loneliness. Patient B's sister is contacted by Patient B's care co-ordinator prior to discharge and she informs him that Patient B used to attend a specific church in the next town and that Patient B had previously expressed that he felt supported by the community of that church and that he had made some friends there. To reduce the risk of a further episode or a worsening of Patient's B's condition, his sister might argue that the commissioner should meet Patient B's transport costs to the church twice a week.

Example 3: Patient C suffers from Bi-Polar Disorder. Exercise has always been an important way for Patient C to manage her disorder and in particular she likes to swim regularly. Prior to losing her job she used to swim every morning before work. After losing her job, she could not afford to keep swimming and her Bi-Polar disorder worsened to the point that she was detained under the MHA. Prior to discharge, Patient C might ask the Commissioners of her care to meet the costs of a monthly membership to her local swimming pool so that she could continue swimming and reduce the risk of her bi-polar disorder worsening in the future.

These worked examples highlight the widening of the types of aftercare services that might now be available to patients under s.117 and also the greater discretion and flexibility given to CCGs / LAs regarding what they are permitted to provide under s.117. On the other hand, however, it also increases the potential financial burden upon CCGs and LA's for the provision of s.117 aftercare services.

 

 If you wish to discuss the content of this article further please contact: Hannah Taylor.

 

[1]              Under s.3 (admission for treatment), s.37 (hospital order), s.45A (a hospital direction and limitation direction), s.47 (transfer from prison) and s.48 (transfer to hospital of prisoners on remand) if they are in need of such services.

[2]           R (on the application of Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin)

[3]              S.75(4) Care Act 2014

[4]              Care and support Statutory Guidance, Issued under the Care Act 2015, Department of Health

[5]              Accommodation as an aftercare service is a hotly debated topic. In recognition of this, one article in this mini-series will be devoted solely to the discussion of this issue.

[6]              See R. (on the application of Afework) v The Mayor and Burgesses of the London Borough of Camden [2013] EWHC 1637 (admin); [2014] M.H.L.R. 32

[7]           Ss.31-33 Care Act 2014 for Local Authorities and under the NHS (Direct Payment) Regulations 2013 for CCGs.