section 117 of the mental health act 1983 – a brief summary

Section 117 of the

Mental Health Act 1983 – a brief summary

Section 117 of the MHA 1983

Section 117 of the MHA 1983 sets out the duty of the relevant local authority and clinical commissioning group (CCGS) in co-operation with relevant voluntary agencies, to provide aftercare services for persons who have been detained under certain provisions of the MHA 1983, until such time that the local authority and CCG are satisfied that the person is no longer in need of such services.

Section 117 (1) and (2)


Section 117 states that aftercare services must be provided to patients who have been detained in hospital:-• Under section 3 for treatment• Under a hospital order pursuant to section 37 (with or without a restriction

order) or section 45A court order• After transfer from prison under section 47 or 48.• Patients on authorised leave from hospital – section 17• Patients previously detained under section 3 but who stayed in hospital after

discharge• Service users living in the community subject to (CTO) and restricted

patients who have been conditionally discharged.

Section 117(1)


• Under the current law, the local social services authority responsible for providing aftercare services is the local social services authority for the area in which the person was resident immediately before he was detained in hospital, or if he was not of settled residence anywhere, the area to which he is sent on discharge from hospital.

Section 117(3)• However interpretation by the courts of the term “resident” under

s117 MHA 1983 produced anomalies with the result that one LA could be responsible for providing services under s117 MHA 1983, and another LA would be responsible for any non-117 community care services the person might need.

Meaning of “aftercare services”

Prior to the Care Act 2014 there was no statutory definition of the term “aftercare services”. The meaning ascribed to aftercare services by Richard Jones* and subsequently endorsed by the court in R (on the application of Mwanza) v Greenwich LBC [2010] was as follows:

“an aftercare service is 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.”

*Para 1-1099 Mental Health Act Manual, 16th edition, Jones R. Sweet & Maxwell 2013

What are “aftercare services”?

It is clear that section 117 gives a considerable discretion to CCGs and LAs 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.

The Care Act 2014: impact on section 117 of the MHA 1983

The Care Act 2014 and its impact on section 117 MHA 1983

• Section 75 of the Care Act makes a number of amendments to section 117 of the MHA 1983 by inserting new provisions into section 117;

• Section 39 (4) of the Care Act applies a deemed ordinary residence provision to persons living in accommodation provided under section 117

Author Radha Pillai 9

Section 75 of the Care Act 2014 makes the following amendments to section 117 MHA 1983:

I. It inserts a definition of “aftercare services” into s117

II. It applies the normal ordinary residence rules to s117

III. It allows people to express a preference for particular (s117) accommodation

IV. Allows LA to exercise its duty under s117 by making direct payments

I. Meaning of section 117 aftercare services

The Care Act amends section 117 so that it explicitly states that aftercare services means services which have both of the following purposes— (a) meeting a need arising from or related to the person’s mental disorder; and

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

- Section 75(5) of the Care Act

II. Local Authority responsible for providing section 117 services

The Care Act amends section 117 (3) of the MHA 1983 so that the local social services authority responsible for providing/arranging the provision of after care services is the local social services authority for the area where the person was ordinarily resident immediately before his detention.


II. Local Authority responsible for providing section 117 services – “ordinarily resident”

R v London Borough of Barnet [ex parte Shah 1983] explains the meaning of “ordinarily resident” as follows:

"ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration…there must be a degree of settled purpose”

If a person was not ordinarily resident anywhere immediately before being detained, responsibility will rest with the LA for the area where the individual was resident immediately before detention. If it is not possible to establish where the person was “ordinarily resident” or “resident”, the local authority responsible for the purposes of section 117 aftercare will be the authority for the area where the person is sent on discharge from hospital.

Ordinary residence of persons in receipt of section 117 accommodation

As well as applying the concept of “ordinarily resident” to section 117 of the MHA 1983, the Care Act sets out a specific “deeming” provision in relation to persons being provided with accommodation under section 117 of the MHA 1983.

So under the Care Act, a person who has been provided with section 117 accommodation and who has needs for care and support (i.e. falling outside section 117) is to be treated as being ordinarily resident in the area of the local authority which is responsible for providing section 117 aftercare services.



Example – Joe Bloggs

Joe Bloggs is ordinarily resident in LA1 immediately before his detention under section 3 of the MHA 1983. Therefore LA1 is the responsible local social services authority for the purposes of providing or arranging the provision of section 117 aftercare services.

In preparation for discharge from hospital Joe is assessed as requiring supported accommodation as part of his section 117 aftercare package. LA1 therefore place him in supported accommodation in the area of LA2.


Example – Joe Bloggs (cnt’d)

A short while later Joe is involved in a car accident and suffers a number of physical injuries. He therefore requires a package of care and support under the Care Act. The local authority that would be responsible for providing his care and support under the Care Act is LA1 even though he is living in the area of LA2. This is because section 39(4) of the Care Act says that for the purposes of Part 1 of the Care Act, Joe is to be treated as ordinarily resident in the area of the local authority on which the duty to provide section 117 aftercare is imposed.

This provision only applies when a person is being provided with accommodation as a section 117 aftercare service .


II. Local Authority responsible for providing section 117 services If it is not possible to determine where the patient was either ‘ordinarily resident’ or if no OR anywhere then ‘resident’ prior to detention/hospitalisation

responsibility for aftercare services

shifts to the LA responsible for the area where the patient is to be discharged.

II. Local Authority responsible for providing section 117 services “ordinarily resident”

The Care Act also extends the mechanism for resolving disputes about ordinary residence to section 117 cases.

This means that where there is a dispute about where a person was ordinarily resident for the purposes of identifying the responsible local social services authority, section 117, section 40 of the Care Act applies so that the dispute may be referred to the Secretary of State for a determination of that person’s ordinary residence.

- Section 75(4) of the Care Act, the Care and Support (Ordinary Residence Disputes etc) Regulations 2014, Chapter 19 of the Care and Support Statutory Guidance


• LBI’s s117 responsibilities are delegated to the Camden and Islington NHS Foundation Trust via s75 National Health Service Act 2006 partnership agreement. The responsibility of the CCG under section 117 is also delegated to the Trust.

• LBI’s s117 policy and procedure will now need to be amended in light of the provisions in section 75 & Schedule 4 of the Care Act 2014 and the relevant care and support 2014 regulations .

• Although LBI’s s117 responsibilities are delegated to the Trust, LBI remains ultimately responsible for its s117 duties.

Section 117 MHA 1983 - Practical Points


• The Care Act 2014 inserts a new section 117A into the MHA 1983 enabling the SoS to make regulations that allow people to express a preference in terms of their accommodation.

• These regulations are the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 which enable persons who qualify for s117 after-care to express a preference for particular accommodation. If accommodation is of a type specified in the regulations and is provided as part of that after-care, LAs are required to provide / arrange the provision of the preferred accommodation if the conditions in the regulations are met.

• The regulations give people who receive mental health after-care broadly the same rights to choice as someone who receives care and support under the Care Act 2014.

• Care planning under the CPA should identify and consider the type of accommodation which is suitable for the person’s needs and afford them the right to choice of accommodation set out in the regulations.

III Choice of Accommodation


The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014

The Regulations apply where the LA is arranging for provision of the following types of accommodation:• Care Home• Shared Lives• Supported Living

Regulation 2

III Choice of Accommodation under section 117


III Choice of AccommodationThe Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 The conditions specified in Regulation 4 are:

- the person must be aged 18 or over- the accommodation must be of a specified type- the preferred accommodation must be of the same type that the local authority has

decided to provide or arrange;- the preferred accommodation must be suitable for the person’s needs;- the preferred accommodation must be available- where the accommodation is not provided by the LA, the provider of the

accommodation agrees to provide the accommodation to the person on the LA’s terms

- Where the cost to the LA of providing the accommodation is greater than the usual cost the LA would expect to pay the additional cost conditions must also be met.

Regulation 4


III Choice of AccommodationThe Care and Support and Aftercare (Choice of Accommodation) Regulations 2014

The additional cost conditions are:

• The LA is satisfied that either person who is being provided with the accommodation or another person (“the payer”) is willing and able to pay the additional cost i.e. a top up

• The payer enters a written agreement with the LA to pay the additional cost.

Regulation 4



The regulations specifically require a local authority which in discharging its duty to provide/arrange mental health aftercare under section 117 of the MHA 1983 is providing or arranging for the provision of a specified type of accommodation to provide or arrange the provision of the adults preferred accommodation if specified conditions are met.

Regulation 4





A LA must give written reasons for a refusal to provide preferred accommodation.

Regulation 9


Capacity issues:

A person’s ability to make an informed choice is a key element of the care and support system. This must extend to where the care and support planning process has determined that a person needs to live in a specific type of accommodation to meet their care and support needs.

There will be cases where a person lacks capacity to express a choice for themselves. LAs should therefore act on the choices expressed by the person’s advocate, carer or legal guardian in the same way they would on the person’s own wishes unless in the local authority’s opinion it would be against the best interests of the person.

REMEMBER: If conducting a mental capacity assessment and/or considering best interests due to lack of capacity, you need to use the Mental Capacity Act 2005 and its Code of Practice (Chapters 2, 3 and 4)


IV Direct Payments

• The Care Act says that the ways in which a local authority can discharge its duty under section 117 of the MHA 1983 includes by making direct payments.

• Section 31 – 33 of the Care Act (and chapter 12 of the Care and Support Statutory Guidance) deal with direct payments.

• Part 1 of Schedule 4: After-care under the Mental Health Act 1983: direct payments makes a number of provisions which modify sections 31 – 33 of the Care Act in so far as it applies to section 117 aftercare.

- Section 75(7) and Schedule 4 Part 1 of the Care Act 2014


IV Direct Payments

A direct payment is made on condition that it be used only to pay for arrangements under which after-care services for the adult are provided under section 117 of the MHA 1983

The direct payment can be used in relation to meet some / all of the

needs Applies where a person to whom s117 MHA 1983 applies asks the

LA to make payments to the patient / a person nominated by them Adults who lack capacity may receive a direct payment if it is

requested by an authorised person (see s32(4) Care Act 2014) and the conditions set out in s32 Care Act 2014 are met subject to the modifications set out in Schedule 4, Part 1 of the Care Act 2014


What hasn’t changed?

Aftercare under s117 MHA 1983 must be provided free of charge


What hasn’t changed?Identifying when accommodation should be provided as part of s117 aftercareIn R (Afework) v Mayor and Burgesses of the London Borough of Camden [2013] EWHC 1637 Judge Mostyn said that “basic or pure, or ordinary accommodation does not come within the concept of aftercare services.”

He said that legally you can only provide accommodation under s117 if:

i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place (the original condition);

ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition;

iii) The ex-patient is being placed in accommodation on an involuntary basis (in the sense of being incapacitated) arising as a result of the original condition.


Assessments

under the Care Act 2014


Just because a service user is receiving section 117 aftercare and is under the Care Programme Approach (“CPA”), does not mean that a Needs Assessment should not or does not need to be carried out where the patient/adult may have needs for care and support which are not required as s117 aftercare.

You Still Need to Conduct a Needs Assessment

“Needs Assessment” is the Care Act 2014’s new name for a Community Care Assessment


Care Programme Approach and care planning

Needs assessment by the LA (under the Care Act 2014)

Care Programme Approach (CPA) – the approach used in secondary mental health care to assess, plan, review and co-ordinate the range of treatment, care and support needs for people in contact with secondary mental health services who have complex characteristics. Should take place in hospital prior to discharge

Should take place in hospital prior to discharge

Is used to manage complex and serious cases – criteria for people qualifying for CPA is set out in section 3 of “Refocusing the Care Programme Approach, Policy and Positive Practice Guidance”. Will cover most people subject to s117 aftercare.

CPA will cease so needs have to be assessed via a Needs Assessment under ss9, 12 and 13 of the Care Act 2014, the Care and Support (Assessment) Regulations 2014, the Care and Support (Eligibility Criteria) Regulations 2014, Chapter 6 et al Care and Support Statutory Guidance)


Assessments Under the Care Act 2014

There are a number of points to be aware of when carrying out an assessment under the Care Act 2014:

General duty to promote an individual’s WELLBEING when discharging a function under Part 1 of the Care Act 2014 - section 1

Duty to prevent, reduce and delay needs arising – section 2

Duty to provide information and advice – section 4

Duty to cooperate with relevant partners and other appropriate services – sections 6 and 7

Independent Advocates - LA duty to arrange an independent advocate if the LA thinks a person may experience “substantial difficulty” in understanding, retaining, weighing and communicating matters connected with being involved in the assessment process.

THIS IS NOT THE SAME AS SOMEONE LACKING CAPACITY TO MAKE A

SPECIFIC DECISION.


• personal dignity (including treatment of the individual with respect);• physical and mental health and emotional well-being;• protection from abuse and neglect;• control by the individual over day-to-day life (including over care and

support, or support, provided to the individual and the way in which it is provided);

• participation in work, education, training or recreation;• social and economic well-being;• domestic, family and personal relationships;• suitability of living accommodation**;• the individual’s contribution to society.

Promoting Individual Wellbeing


The duty to assessWhere it appears to a local authority that an adult may have needs for care and support, the authority must assess:

• Whether the adult has needs for care and support, and• If the adult does, what those needs are.

Section 9(1)


Conducting Assessments Under the Care Act 2014

LA must involve:• the adult,• any carer that the adult has, and• any person whom the adult asks the authority to involve or, where the adult lacks

capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

LA must consider:

• whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and

• whether the adult would benefit from advice, information or steps the LA could take to prevent needs arising , or anything which might be available in the community.

Section 9(5)

Eligibility for care and support• The Care Act introduces a new national minimum eligibility criteria which

sets a minimum eligibility threshold;• The national minimum threshold describes needs which meet the

eligibility criteria for adults with care and support needs and carers;• Ensures a minimum level of need which must always be met by all LAs

nationally;• The threshold is based in identifying how a person’s needs affect their ability

to achieve relevant outcomes and how this impacts on their wellbeing;

Section 13 of the Care Act and the Care and Support (Eligibility Criteria) Regulations 2014


Where at least some of an adult’s needs for care and support meet the eligibility criteria, the LA must:

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority’s area

Section 13 of the Care Act 2014

Eligibility for care and support


Care Programme Approach (“CPA”) and Care Planning


When should CPA happen?

[See also “Refocusing the Care Programme Approach, Policy and Positive Practice Guidance”]

CPA will apply to most individuals who require section 117 aftercare services on discharge from hospital.

Before the person is discharged from hospital a care planning meeting must take place involving the person, their family (if appropriate) and any relevant professionals involved in their care.

The meeting is to identify and implement a care package to meet the person’s needs once discharged and to identify a care co-ordinator.


What is the Care Programme Approach?

A high level plan which incorporates elements of behaviour support plans across all domains (including those on Community Treatment Orders).

Treatment plans are specifically linked to the mental disorder and are supported by other elements of the CPA care plan.

It should be used in secondary mental healthcare to: assess, plan, review and coordinate the range of treatment, care and support needs of those people

in contact with secondary mental health services who have complex needs.

It should be used for individuals who are at high risk of suffering a deterioration in their mental condition and who need multi-agency support / active engagement / intense intervention / support with dual diagnoses.


The Care Programme Approach

Services provided to a person before admission to hospital, and which meet needs identified under s117MHA83, will become part of the aftercare package.

EG: Alice was paying for her residential care before she was detained in hospital under Section 3, this will become part of her aftercare following discharge and for 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.

It is important that all patients who are entitled to after-care are identified and that records are kept of what is provided to them under that section.


Chapters 33-34 – MHA 1983 Code of Practice

• Revised Code published in January 2015 to reflect provisions in the Care Act 2014 impacting on 117 aftercare

• Provides guidance on section 117 after-care and CPA

• Makes it clear that after-care is a vital component in patients’ overall treatment and care

• The CoP covers after-care planning and direct payments.

• Makes it clear that the aim is to maintain patients in the community, with as few restrictions as are necessary, wherever possible.


Chapters 33-34 – MHA 1983 Code of Practice

CCGs and local authorities should interpret the definition of after-care services broadly.

For example, after-care can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.

As well as meeting their immediate needs for health and social care, after-care should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital.

Paragraph 33.4 of the MHA Code of Practice


Ending Section 117 after-care servicesThe duty to provide aftercare services continues until the CCG and LA are satisfied that such services are no longer required. This decision cannot be made during the continuance of a CTO.

If the authorities decide to reduce any aftercare service or remove services altogether there should be a reassessment to see how the person will manage without the services concerned.

The authorities should provide reasons for their decision and give the person the opportunity to have the decision reviewed if the he/she disagrees.

The authorities should give notice to a carer involved in providing support to the service user of the decision to reduce or terminate aftercare services.

Paragraphs 33.20 – 33.23 of the MHA Code of Practice


Some Essential Reading and Links

The Care Act 2014 http://www.legislation.gov.uk/ukpga/2014/23/contents/enacted

The Care and Support Regulations and Statutory Guidance https://www.gov.uk/government/consultations/updating-our-care-and-support- system-draft-regulations-and-guidance

The Mental Health Act 1983 Code of Practice https://www.gov.uk/government/publications/code-of-practice-mental-health-act-1983

http://www.legislation.gov.uk/ukpga/2014/23/contents/enacted

https://www.gov.uk/government/consultations/updating-our-care-and-support-system-draft-regulations-and-guidance

https://www.gov.uk/government/consultations/updating-our-care-and-support-system-draft-regulations-and-guidance


“Refocusing the Care Programme Approach: Policy and Positive Practice Guidance”

http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_083649.pdf





Thank You

section 117 of the mental health act 1983 – a brief summary

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