If a clinician were to assess that a person was no longer at risk of hospitalisation due to mental health issues, the upshot would be that the person was no longer in need of the s.117 status, because both purposes of aftercare must still be needed for the status to be an entitlement. The entitlement would stop if both the local health board and local social services authority were satisfied that in fact only one of the features of the definition of aftercare was still in place.
If the ICB is refusing to countenance DST process for people whilst on a s117, simply because that is what their funding arrangement is for the bulk of their care, then that is an error of law.
The National Framework says that people on a s117 should not have their needs met through CHC funding, because s117 is not a gateway through to the Care Act or CHC functions about meeting needs. But it is clear from the Framework that a person can have needs unrelated to mental disorder which do fall to be dealt with as Care Act needs, and that can only mean, logically, that it is possible that that unrelated need could deserve to be checklisted and ultimately recognised as a primary health need, for which the ICB would be obliged to pay the whole amount of that bit of input, whilst the underlying s117 package would still be a joint liability.
The ICB or hospital trust discharge lead might be saying something slightly different however: ie that the existing package is perfectly good enough and broad enough in terms of the care plan to cope with the person’s new and unrelated health issue. It’s not likely, that a provider focusing on aftercare needs would also be competent for a whole set of other needs, nor willing to do it without the care plan and fee being changed! But it is at least possible, and whether the care home or other provider who’s contracted to meet the s117 aftercare needs is registered and competent to deal with the new need and whether more funding needs to be provided for that need would be matters of contract and regulatory law.
In the situation you’ve communicated about, the person the family or the advocate needs to make it clear that the needs to be covered by CHC do not arise from, nor are related to, their mental disorder or are services which are not needed for the purpose of aftercare, and thus in either situation, do not fall within the scope of s.117. For example, if the person develops separate physical health needs (e.g., through a stroke) or has separate ongoing medical issues (NHS Framework for Continuing Healthcare para.339).
We have heard of hospital discharge leads saying a flat no to a checklist being done, or an ICB co-ordinator of the process asserting that a checklist that has been one and which triggered a DST focusing JUST on the new need outside of the s117 package, was not ‘valid’ – without giving any reasons, and that is what is wrong in public law terms. The National Framework makes it clear that a person refused a DST or a checklist must be told in writing.
NF 121 There will be many situations where it is not necessary to complete a Checklist. These include where:
• It is clear to practitioners working in the health and care system that there is no need for NHS Continuing Healthcare at this point in time. Where appropriate/relevant this decision and its reasons should be recorded. If there is doubt between practitioners a Checklist should be undertaken.
• The individual has short-term health care needs or is recovering from a temporary condition and has not yet reached their optimum potential (if there is doubt between practitioners about the short-term nature of the needs it may be necessary to complete a Checklist). See paragraphs 96-103 for how NHS Continuing Healthcare may interact with hospital discharge.
• It has been agreed by the ICB that the individual should be referred directly for full assessment of eligibility for NHS Continuing Healthcare.
• The individual has a rapidly deteriorating condition and may be entering a terminal phase – in these situations the Fast Track Pathway Tool should be used instead of the Checklist.
• An individual is receiving services under Section 117 of the Mental Health Act that are meeting all of their assessed needs.