Decision Date: 27 Nov 2023
What happened
Miss X complained that the Council, and Norfolk and Suffolk NHS Foundation Trust, did not assess her aftercare needs before she was discharged from Section 3 of the Mental Health Act (MHA) 1983.
She claimed that, following her discharge in June 2022, there was a complete lack of Section 117 aftercare support ever planned for or provided. She would have asked for a direct payment to her for support to reduce the chance of her being detained under section. She said that the Social Worker delayed the assessment of her aftercare needs by 12 months.
Miss X argued that the lack of Section 117 aftercare caused her distress and that she missed out on mental health support.
Miss X moved to university in late September 2022. Between August and September 2022, the Trust planned Miss X’s transfer of care to her new mental health team, which included introducing her new Care Coordinator, liaising with the university’s mental health team and monitoring her mental and physical health. In mid-October, Miss X’s new Care Coordinator emailed the Social Worker: Miss X wanted to join the gym to support her wellbeing and so The Care Coordinator asked if that support could be funded under Section 117 aftercare. The Social Worker agreed to fund that support but never completed the correct process.
Miss X also complained that she was now in debt as she had to rely on her savings to pay for support that should have been paid for by a direct payment. Miss X wanted the Council and Trust to backdate her current support, which she would have liked via direct payments, to June 2022. She also sought a financial remedy to recognise the 12 month delay for the assessment of her aftercare needs.
What was found
The Council and Trust were jointly responsible for assessing Miss X’s Section 117 aftercare needs before she was discharged in June 2022. The MHA is clear that patients on Community Treatment Orders (CTOs) should receive Section 117 aftercare for the entire period that they are on a CTO.
The Trust agreed to monitor and support Miss X’s mental health until she moved away to university. The LGSCO found that to be good practice, but the issue was that neither the Trust nor the Council took action to support her Section 117 aftercare needs even though they were aware that they needed to support her, which was a missed opportunity, and was fault.
The Trust was only responsible for supporting Miss X until she went to university, so the LGSCO was unable to say that the Trust acted with fault after that point. However, the Council did retain responsibility for Miss X’s Section 117 aftercare needs when she moved to university. The LGSCO was unable to find any evidence that the Council formally assessed or reviewed Miss X’s aftercare needs under the Care Programme Approach. This was fault, and not in line with the MHA Code.
The LGSCO found that there was a missed opportunity by the Social Worker to consider Miss X’s aftercare needs following contact from her Care Coordinator in October 2022, which was again fault. The Council only recognised that they needed to support her s.117 needs once Miss X approached them in April 2023.
The Council and Trust did not assess Miss X’s Section 117 aftercare needs properly before she was discharged from Norfolk and Suffolk NHS Foundation Trust in June 2022 on a CTO. The Council was also at fault for delaying assessment and support for Miss X’s Section 117 aftercare needs for 12 months.
The ICB was not at fault for not having a record of Miss X’s Section 117 aftercare since that was due to the Council and Trust not following the correct Section 117 aftercare process.
The Ombudsman noted that the poor planning by the Council and Trust did cause Miss X distress and that the lack of support that she was entitled to impacted on her well-being at university. The Council was recommended by the Ombudsman to continue considering Miss X’s evidence and reimbursing the costs where necessary and to provide a backdated payment to reimburse for the support that Miss X had to pay for between June 2022 and June 2023.
The Council agreed to pay £1000, which was an increase from the initial proposed £350, in recognition of the severity of Miss X’s injustice.
The Council and the ICB also agreed to jointly backdate the direct payment to June 2022, as this should have been implemented in June 2022. It said “we have agreed to jointly backdate £24,682.00”. They later admitted that they had paid back £6000 based on actual expenditure that Miss X had been able to evidence.
The Trust also recognised their fault in not effectively planning or reviewing Miss X’s Section 117 aftercare needs after June 2022, but the Ombudsman did not believe that they had provided suitable remedies for the injustice that Miss X suffered. The Ombudsman made recommendations to the Trust:
- Within four weeks of this decision, the Trust should apologise and pay £100 to Miss X to recognise the distress she suffered in June 2022;
- Within eight weeks of this decision, the Trust should develop an action plan to improve its Section 117 aftercare planning before it discharges patients detained under any qualifying sections of the MHA.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
CTOs aim to allow suitable patients to be treated in the community, and good care planning with the CPA is crucial for its success. Patients on CTOs should receive Section 117 aftercare throughout this period as stated in the MHA Code. They should receive this aftercare because it helps meet the person’s wider social, cultural and spiritual needs which would help support their needs in wider society and thus make it easier to prevent the patient from needing to be sectioned again.
When a person moves area, that does not bring to an end the liability of the authority first responsible for the s117 package. Their liability continues, and many simply delegate the responsibility to another council, thinking that that means they are no longer responsible. This report shows that the arrangements cannot bring about a change in the legal liability for aftercare provision, even out of area. It is an enforceable actionable statutory right, and not something simply to be filled through local CMHT services, no doubt overstretched.
The result emphasises the significance of proactive care planning and assessment by organisations regarding people that have been sectioned. The LGSCO also emphasises the importance of organisations fulfilling their responsibilities, such as assessment, planning and review of aftercare needs, and also acknowledging their wrongdoing in suitable ways.
People should remember their entitlement to proper care planning and assessment and the ability for them to complain against the liable bodies if these requirements and standard procedures are not being met. This LGSCO report highlights the ability for people to ensure that their aftercare is being properly dealt with and the ability for them to hold organisations accountable.
Section 117 aftercare needs can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs.
In 2022, the Parliamentary and Health Service Ombudsman and Local Government and Social Care Ombudsman jointly produced the ‘Section 117 Aftercare: Guidance for Practitioners’. It states: “Central to the CPA process is the care plan. This is a record of any physical, psychological, emotional and social needs associated with the person’s mental health condition. The care plan should be prepared in close partnership with the person from the outset and reflect their needs and wishes. The care coordinator will be responsible for preparing, implementing and evaluating the CPA care plan”.
The Government has just issued guidance to all councils and ICBs to get them to do their s117 duties properly. https://www.gov.uk/government/publications/discharge-from-mental-health-inpatient-settings/discharge-from-mental-health-inpatient-settings
This Guidance and the fact that not complying with clear law and the contents of the Code cost this council over £6K (restitution is an obligation regarding actual expenditure – not the benefit of what one would have had had the council done right, but reimbursement of what had actually been spent, please note) and that they had to
- re-introduce s117 forms on its system, since they had only had Care Act forms – including a prompt for staff to arrange Section 117 reviews, and
- set up a Mental Health Review Team, to consider the needs of all adults living outside of Suffolk.
should maybe encourage other s117 partners to follow suit in a timely manner!
The full Local Government Ombudsman report on the actions of Suffolk County Council can be found here: 23 005 802 – Local Government and Social Care Ombudsman