We do not think so.
Section 117 Mental Health Act aftercare, although it happens after discharge from a hospital, is not the same service as an intermediate care, which is most probably provided under s3(1)(e) NHSA 1977: ‘such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service’). Furthermore, s117 care takes place after a person has reached a point in their rehabilitation where they no longer need to be compulsorily detained. Aftercare is primarily intended to avoid deterioration and re-admission, over an unspecified period of time; whereas intermediate care is to provide an intense time-limited package to secure improvement or at least marked progress towards independence.
The intermediate care guidance does not suggest that intermediate care has any relevance for s117 patients. That will be a disappointment to local authorities who are currently paying the lion’s share of funding of long term residential facilities for dementia patients. If accommodation for 6 weeks at the expense of the health authority was a standard part of the funding arrangements, it would have helped!
There is better news however, with regard to Free Nursing Care and the RNCC. Although the RNCC and s117 aftercare are provided under different statutory regimes, the registered nursing element of s117 aftercare has been expressly drawn into the free nursing care arrangements (probably from April 2003) by para 41 in the Free Nursing Care Guidance. This is not limited to 6 weeks but merely continues pending a re-assessment.
Whether or not the Secretary of State has power to direct health authorities how to discharge their s117 functions (as opposed to their NHS Act functions which have been delegated to them by the Secretary of State in the first place) the fact is that s117 aftercare money comes out of the monies which the government gives to health authorities. In this sense, the government does have the power to tell health authorities that they need to put some of it aside to pay for the nursing home element of s117 care packages. This might be thought better than being expected to pay 50% of every package (as to which contention, there is a respectable legal argument in support, which local authorities could use, because s117 is a joint legal duty imposed on both authorities – see topic s117 aftercare).
We think that some s117 patients, when assessed, will actually qualify for continuing care as a distinct statutory service which would avoid the need for the local authority to make any other arrangements – for fully paid continuing care is to be arranged and funded entirely by the NHS.
We are not saying that the NHS should use their continuing care criteria to determine what proportion of a s117 aftercare package to pay – that would make no sense, in the context of a joint duty under a free-standing statutory provision, distinct from the one under which continuing care is provided by the NHS. But we think that s117 patients only ‘need’ that which is not required or able to be provided under other legislation. Continuing care would meet the need for accommodation and aftercare which would otherwise have to be met by way of a s117 aftercare package, just as prescription medication and housing in the tenanted sector (eg provided to a s117 person as homeless under the Housing Act), would meet some of those needs, but not all.
Therefore, any health authority which is using its continuing care criteria to determine whether it will pay anything towards a nursing home placement for a s117 patient needs to stop using them promptly, or else they will find themselves paying for the whole package, and not just an RNCC contribution.