Freestanding aftercare rights (that is, outside NHS Act 2006 provision and the Care Act) have long existed for some people compulsorily detained in psychiatric hospitals under the Mental Health Act 1983 (MHA). The patients with this specific legal right are those detained under s3, s37/41, s45A, s47 and s48.
“After-care services” means services which have both of the following purposes: meeting a need, arising from or related to the person’s mental disorder; and 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).
As it is a truly legally joint duty, the NHS and the council should both be paying for it. Both do contribute, of course, through services provided ‘universally’, by way of those entities’ local offers to their communities. The case law says that the s117 partners are free to cross-subsidise costs, because there are no rules as to who can, must, or should not pay for the content of the package. ICSs ought to have a written funding protocol.
Authorities have power to conclude their own agreements as to how to fund s117 packages.
The policy Guidance known as the Care Programme Approach, (and the Community Mental Health Framework in some areas, regionally) and the statutorily underpinned Mental Health Code of Practice, make up the wider legal framework for practitioners and management in ICBs, CMHTs and Hospital Trusts, along with the ICB’s relevant council partner – jointly liable with the NHS for providing, or arranging to provide, appropriate aftercare for s117- entitled individuals.
It is recognised that the process of being detained under the MHA, even when carried out with the utmost regard for a patient’s dignity and safety, can be extremely disruptive. Housing, welfare benefits, childcare arrangements and work can all be thrown into disarray, by involuntary inpatient care. The period immediately after discharge carries a significantly increased risk of suicide. Getting the discharge process right, and ensuring a service user has sufficient support and access to services in the community to enable effective discharge and prevent re-admission, is critical.
The MHA does not apply any exclusions based on a person’s Nil Recourse to Public Funds status or improper immigration status. So those with NRPF and lawfully here, asylum seekers and people who are in the country illegally but who have been detained under Section 3 of the 1983 Act are entitled to after care services under Section 117, which can make qualifying into a route into better support, overall.
Progress with the speed of discharge planning is objectively slow. Lack of accountability is the biggest and most pervasive problem emerging from C(E)TRs, national reports and thematic reviews such as ‘Monitoring the Mental Health Act in 2022/23’, CQC: https://www.cqc.org.uk/publications/monitoring-mental-health-act
It remains to be seen whether national Care and Treatment Reviews (CTRs) and Dynamic Support Register policy and procedures will narrow the gap between ambition and reality. You can find these here:
NHS England Care (Education) and Treatment Reviews – https://www.england.nhs.uk/learning-disabilities/care/ctr/
and
NHS England ‘Dynamic Support Register Policy and Guidance’ 2023 www.england.nhs.uk/wp-content/uploads/2023/01/Dynamic-support-register-and-Care-Education-and-Treatment-Review-policy-and-guide.pdf
Section 117 services rather than the Care Act?
When one is entitled to s117 status, one may not need Care Act services, because if one’s mental illness or disorder is significant enough to have warranted detention, one’s needs for aftercare must be considered first, under s117 itself and outside the Care Act framework. Even if one’s needs are likely to be difficult to separate into different derivations – that is, the physical, from the mental or behavioural – they can all count for triggering aftercare, if related to mental disorder. The aftercare purpose, combined with the CPA, will be geared to recovery and the normalisation of daily living once again, and the scope of aftercare is at least arguably wider than the scope of Care Act care and support. There is no national set of domains or eligibility criteria to apply.
Care planning decision-making does not turn on the concept of ‘inability to achieve’ across the domains in the Care Act, for a s117 patient; it is necessarily informed by the specific statutory purpose of s117, which is geared to minimising deterioration and avoiding readmission to psychiatric hospital.
It is not a proper application of s117 rights to put people awaiting discharge, through Care Act processes with a view to aligning their needs for services to the Care Act eligibility domains in which they are unable to achieve (unless they have parallel non-mental health aftercare, ‘conventional’ Care Act type needs as well).
The question for professionals for patients entitled under s117 must be what are biggest risks or deficits which may trigger deterioration and a need for readmission – and that difficulty must be related to their mental disorder, not to a physical issue, unless also related to mental disorder; the response must be related to the need, but is not limited by any statutory provision detailing appropriate responses by reference to a service list or types of input to a care plan.
Any further strictures around aftercare planning would be a fetter of the professional’s judgement, or an error of law.
It is not inappropriate that a model for recovery for discharged patients, or people not yet sectioned, could benefit from being informed by the Care Act’s focus on well-being and daily living domains, and the social model of dysfunction, rather than a medicalised approach to chronic illness. But the Care Act criteria are best thought of as only relevant as a guide to what an aftercare plan should consider – certainly not to eligibility.
The criteria for who qualifies (eligibility) are set out in the Mental Health Act itself. One can have the status and yet no unmet need, and thus no services, other than what one gets in any event from the CMHT, in which case a s117 care plan is rarely written up, but one’s entitlement subsists. A decision that one needs nothing bespoke or requiring arrangement ought not to be assumed without due process taking place and not without following the Mental Health Act Code of Practice.
It is possible that some people with s117 rights may have additional needs that do not come within the s117 purview, but which should trigger Care Act assessment obligations, or beyond that, if they are severe enough to trigger NHS Continuing Health Care screening criteria, entitlement to CHC status, for part of the needs or simply, instead.
All those people caring for mentally unwell people, who do not even think of social services as a source of help, potentially qualify under the Care Act for individual packages of services or a direct payment in lieu, if found eligible, by way of support for them in their caring role, not just a local offer or a hub for carers’ services or grants.
Any integrated service operated by social services and mental health services in the community, together, needs to be offering Care Act assessments and care plans, based on the lowest common denominator in terms of screening for need, that is, an appearance of need for care and support, not the higher threshold for CPA services for people with severe and enduring mental ill health.
LGSCO attention to the discharge of s117 functions
The Ombudsman (LGSCO) has asserted the principle that where housing is absolutely necessitated by a person’s needs for aftercare, in terms of the nature of the aftercare service thought necessary, and it not feasibly working in the absence of the accommodation – then that housing should be delivered within the aftercare plan and funding – meaning that the person awaiting discharge should not be required to take up a tenancy or seek benefits as the effective pre-condition to receiving aftercare.
That thinking chimes with the notion of a person with accommodation ‘plus’ needs for social care and support – that is to say, the existence of exceptional cases where s23 of the Care Act would not prevent a person from being provided with housing, directly by the social services council, as an implicitly necessary part of the overall package for meeting the person’s Care Act needs.
The difference can be described quite easily by reference to the case law. Whereas monitoring and checking in on a person’s wellbeing would not require accommodation to be provided, as a pre-condition of aftercare working, care related to getting a person dressed, washed, fed and toileted, and in particular restricted or restrained, or supported under continuous supervision and control would – because with any of those aspects of a care plan, they make no sense in the absence of a home – and if a person needs to be contained, then that needs to be done in the context of a safe environment.
If a person is willing and able to take on a tenancy, or they have a lawfully authorised agent for that decision, whilst lacking capacity, then they, just like anyone else, can elect to meet their own needs, and balance the pros and cons, as long as they are well-informed – for instance, that they will not have to pay rent, because s117 aftercare is free; that they may be obliged to accept input counting as ‘support’, but not as ‘personal care’, even if capacitated; that they may be restrained or restricted pursuant to best interests if they lack capacity or are deprived of their liberty under a community DoL order; that their security of tenure is limited to the rules for assured shorthold tenancies but cannot be ended just because they might one day be discharged from s117 status – because their tenure rights must be separate from any ‘care’ going in, if the care is personal care. If it is support, it does not matter if it is provided ‘together with’ the accommodation (that is, without a tenancy to separate the input from the housing). Otherwise, there could be a registration offence unfolding.
There have been at least 5 LGSCO decisions, (Solihull, Milton Keynes, Lewisham – and now Luton and Warwickshire), where this concept has provided the underpinning for findings of fault, and recommendations for reimbursement of considerable sums of money. This is based on the principle of restitution for breach of statutory duty; a basis of compensation that is not the same as damages for harm, caused negligently, nor the same as human rights damages; and not a complaint resolution recommendation, in terms of legal principle.
Care Planning and due process
The Mental Health Act Code makes it clear that s117 care plans should be in writing, derived from assessment, and commissioned for by competent staff. The fact that these expectations are not in the statute makes no difference. The Code amounts to the flesh on the bones of the Act; the plain English instructions to everyone working in the Mental Health system as to what is required to abide by public law principles.
It is a valuable lesson that more than 15 years before the Care Act was brought in, along with a statutory duty to provide a written assessment document, a written care plan and regular reviews, the Administrative Court had laid down the same requirements as a fundamental aspect of transparency, fairness and accountability.
The grounds for judicial review of a s117 care plan depend on whether one has been made that is not adequate, or one has been made but not reviewed despite a concern arising, or one that has been made which is not being delivered on. If none has been made at all, then the grounds for challenge would be unconscionable delay, because using ‘best endeavours’ must mean more than never quite getting round to finding a solution.
If there is another reason why no plan is proving capable of finalisation, there might be an error of law going on behind the scenes – for instance, an assumption that the s117 authorities can refuse to spend any more than a capped or even an irrational, arbitrary amount on an aspect of the care.
A more complicated error of law that works against the interests of those awaiting discharge is that an idea has taken hold that it can never be lawful to deprive someone of their liberty in the community if they have become fit for discharge from detention in hospital. This is not the case.
If a person lacks capacity such as to need constant supervision, then they, just like anyone else, can be made the subject of a Court of Protection single order authorising that regime via Re X process, since DoLS cannot apply outside of a care home or hospital.
Due process and care planning
The leading case on the attention to care planning that is required is R (AK, (A Child) v Islington LBC and the North Central London Clinical Commissioning Group [2021] EWHC 301 (Admin) (16 February 2021), accessible here: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2021/301.html&query=(.2021.)+AND+(EWHC)+AND+(301)+AND+((Admin))
This case involved a 16 year old, thus underlining that one can be sectioned at any age under the Mental Health Act, if the situation is regarded as warranting it.
This was a judicial review of the adequacy of aftercare planning, in terms of the content and the ‘process’. The judgment also focused on the essential link between the outcomes being sought, and the detail about the inputs that would help to generate those outcomes.
The judge held as follows:
“The document does not do as I described above – namely, provide a vital and important bridging link enabling the new care provider to gain a clear insight into the key aspects of the plan going forward by informing them of AK’s specific needs, how to meet them and by whom.
It is an unsuitable and defective tool for the job required.
The guidance set out in the Code has not been followed. In particular 34.3, 34.13, 34.19. The care plan does not ‘set out the practicalities of how the patient will receive treatment, care and support from day-to-day’.
No reason has been given for any departure from the Code.
Therefore, in my judgement, the DCPA dated 16/11/20 is unlawful. The Claimant is accordingly, entitled to a mandatory order requiring that a new assessment be conducted.”
New s117 Hospital Discharge Guidance was issued by the Department of Health & Social Care, in 2024: ‘Discharge from mental health inpatient settings’
The guidance contains specific expectations regarding those who may have been admitted such as homeless persons and where inpatients have co-occurring mental health and drug or alcohol conditions, and where the patient is a child.
It says that commissioners of health, social care and housing services should consider the needs of people experiencing homelessness being discharged from mental health hospitals, including the commissioning of appropriate accommodation and support upon discharge.
It suggests that this might include specialist intermediate care and step-down services while longer-term care is being planned, specialist supported accommodation, and/or wraparound or ‘settle-in’ care in the community following discharge.
It provides an inspiring example from the Oxford Health NHS Foundation Trust which used legal literacy to develop hospital IN-reach and a step-down house with access to psychology social work and community based mental health workers to reduce occupied bed days by 89% and making large savings overall. To this extent, the Guidance references the accommodation ‘plus’ developments covered in this post.
However, the Guidance also refers discharge planners to rights under the Homelessness Reduction Act 2017, whereby specified public bodies, including hospitals in their function of providing inpatient care and social service authorities (both adult and children’s), have a duty to refer people who they think might be homeless, or at risk of becoming homeless within 56 days of admission, to local housing authorities.
Regarding delayed discharge the Guidance says that processes should be in place to identify people who may be at risk of a delayed discharge (for example, due to social care or housing needs) at the point of admission or even before. It exhorts proactive action to be taken to address any barriers.
The Guidance emphasises that assessments for discharge are done under one law or another and underlines that the source of the formal s117 assessment duty is a re-purposed s47 National Health Service and Community Care Act 1990 (it used to govern assessment for community care services before 2015). It reminds readers that this is a distinct legal duty from that laid out in s9 Care Act 2014, which must be carried out by a local authority if an adult appears to have needs for care and support. There is no reference to section 47 in the current version of the Mental Health Act Code so it is worth pointing out to staff that this is what they should be doing; they might not know!
The Guidance also reminds people that reasonable adjustments are a legal requirement under the Equality Act 2010 to make sure health services are accessible to disabled people, including during the task of supporting people with discharge planning with all written information provided in an accessible format, depending on people’s communication preferences.
The Guidance refers to ‘responsibilities’ in the discharge process, including existing funding responsibilities and refers readers to guidance for professionals: ‘NHS England guidance on ‘Acute Inpatient Mental Health Care for Adults and Older Adults’ and ‘Quality Transformation Programme – Mental Health and learning disability and autism Inpatient commissioning framework’.
The Guidance highlights eight Key Principles for Effective Discharge Planning, It advocates the use of s.75 agreements as long as the money is not mixed up with CHC funding.
The Guidance refers to the duties in s82 of the National Health Service Act 2006 (co-operation between NHS bodies and local authorities) and s74(2) of the Care Act (discharge of hospital patients with care and support needs). It aims to give organisations greater clarity about what these duties to co-operate might mean in practice, in the context of discharge from all mental health and learning disability and autism inpatient settings for children, young people and adults.
However, in relating s74 CA (which addresses acute general hospital discharge) to s117 discharge, the purpose of the Guidance is opaque. That section provides that where a relevant trust is responsible for an adult hospital patient and considers that the patient is likely to require ‘care and support’ following discharge from hospital, the relevant trust must, as soon as is feasible after it begins making any plans relating to the discharge, take any steps that it considers appropriate to involve the patient and the carer of the patient.
The new Guidance appears to harness these provisions in the context of psychiatric hospitals and s117 care planning and discharge, to support the general tone of the recommendations by reference to existing statutory duties, perhaps to make up for not bringing in Mental Health Act reform. The oddity here, however, is that people being discharged under s117 are not being discharged to Care Act functions, or for mere ‘care and support’.
Whether by accident or design, this may indicate the beginnings of a policy shift towards treating s117 MHA rights as NOT coming first, as the cloak that is thrown over the shoulders of the person coming out of hospital after compulsory detention, and a direction of travel towards using the Care Act provisions first or in parallel.
That would be beyond any hope of defence if the matter were to go to court, without statutory amendment, because s117 has been regarded as a freestanding gateway to services, outside any other existing entitlement, since the Watson case in 2004 (Richmond LBC & Others v Watson & Others [2000] EWCA Civ 239 (27 July 2000), https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2000/239.html&query=(.2000.)+AND+(EWCA)+AND+(Civ)+AND+(239)
In terms of general principles of statutory interpretation, as understood by lawyers and draftspersons, that must still be the case, given that it is free at the point of delivery and not affected by immigration status.
Annex B discusses how budgets and responsibilities should be shared to pay for section 117 aftercare, but without any clear steer in the sense of how the division of funding should be determined as between two separate organisations. The only logical reason, to our minds, is that it is NHS England’s wish to drive every single area into 50/50 agreements so that it no longer matters is a person with a joint funding agreement underpinning their care moves areas. We are not sure why they do not just say so, if that is the bottom line.