Any services thought to be necessary by the professionals by way of aftercare services, upon departure from mental hospital, are required to be continued for free until those charged with the duty (i.e. the HA and the LA) jointly agree that the need for such aftercare services has ceased.
In the Watson case the judge at first instance stated that in a case of dementia he could not see how such a mental health problem would ever improve in the community to the extent that aftercare could be regarded as no longer necessary. We think that this is wrong in law, but it is the law at the moment, and it is not likely that the matter will be considered afresh in the Lords hearing of the appeal.
One is not sectioned because one has dementia – one is sectioned because one’s dementia is manifesting itself in challenging behaviour towards oneself or others. We therefore think that once the behaviour which caused the need for formal detention has stabilised, and remained stable in the community for a reasonable period – say 6 months – it is lawfully possible to take the view that the services are no longer required ‘by way of aftercare’.
Controversially, we would take this view, even if the same service is in fact still needed, because the person still has a mental illness and always will have one – but it would be a brave authority with a ‘perfect’ case on the facts and the recording of its reasoning which would want to go to court and take that line.
We think that lawful withdrawal of s117 status requires both authorities to consider and agree that the withdrawal of such services by way of aftercare, (ie for free), would not lead to significant ‘destabilisation’ of the client’s mental health, – ie that a service is no longer needed to maintain stability, or that although it is needed for continuing stability, its being charged for, as opposed to its being for free, is not going to threaten its continued success.
In order to put forward this argument, any Council would need to ensure that proper detailed assessments are undertaken and arrangements reviewed whilst the person is in the community, the difference to their financial situation considered, in the light of their needs, on the footing that they will no longer retain in their pockets the value of the DWP benefits which they would have been getting regardless of the lack of a charge, etc., and that the decision and reasons are properly documented.
Even if the authorities agree and are satisfied that after care services are no longer required, a person could ‘re-qualify’ for s117 after care services if they suffered a relapse, were then readmitted and detained under the Mental Health Act and then discharged. We do not think that a client would ‘requalify’ for s117 services direct from the community, if the s117 package and status had been withdrawn formally. It is the element of compulsory detention which triggers the possibility of s117 after care services arising, a duty which crystallises once a patient is discharged from inpatient care.
However, s117 status and the right to free services which it confers, continues, in our view until both the local authority and the health authority are satisfied through monitoring the client in the community after discharge, that none of the services thought to be necessary by way of aftercare are needed any longer. Thus services which were included and withdrawn may need to be re-instated if there is a deterioration, so long as there is still one other service currently being provided by way of aftercare. This makes good sense because revolving door situation may be able to be spotted and deflected by increasing or re-instating or varying services.
The health authority cannot unilaterally decide to withdraw s117 funding as both ASWs and clinicians’ professional opinions are relevant and the local authority’s agreement is required.
Further to the above points, the decision to stop the provision of s117 after care services to a client is one taken jointly by both the health authority and the local authority.
A s117 review meeting should be held and minuted. Guidance advises that withdrawal of services must be discussed with the client and his/her carers, beforehand.
The Care Programme Approach sets out various steps to be taken and matters which must be covered before a person is discharged from care. In practice it is usually the client’s key worker who is responsible for co-ordinating all relevant forms and both a representative of the health authority and the local authority should sign the record of discharge from s117 care. We are of the view that it is essential to have a formal decision as to termination of s117 status recorded.
Merely being diagnosed as no longer ill or disordered is not a sufficient indication for a discharge from free services – the emphasis is on the need for aftercare services, not acute services.
The Health Authority cannot delegate their decision about after care to an employee of an NHS Trust. They can treat the consultant’s opinion as to need as an indication or a recommendation, but they cannot delegate it directly, or regard themselves as bound in every case by that opinion.