Date of decision: 15 Jan 2025
Summary
A man was discharged from Section 117 aftercare without proper process or communication, leading to years without necessary mental health support, uncertainty, and possible deterioration in his condition, until his complaint prompted reassessment and service improvements.
What happened
Mr X was detained under Section 3 of the Mental Health Act and, after discharge from hospital, received Section 117 aftercare, including CBT, medication, and care co-ordination.
In 2017, after a phone call where Mr X reportedly declined further support, a multidisciplinary team decided to discharge him from Section 117 aftercare without involving him or his parents, and without informing him. The note of the phone call did not say that Mr X specifically asked for Section 117 to be stopped, and nor did it say that any explanation was given to him about what stopping Section 117 would involve.
No follow up letter was written. Mr X only discovered the fact of this discharge in 2022.
Parental support was noted in his care plan, as was his consent for them to be contacted about his care.
During the intervening years, his mental health had deteriorated, including further hospital admissions, despite repeated requests for support.
The Trust, Council, and ICB acknowledged communication failures and accepted Mr X should have been fully involved and informed.
What was found
The Trust was the lead organisation in providing integrated mental health services in the area, and responded to Mr X’s complaint. However, the joint team found that the Council and ICB have a legal duty to provide Section 117 aftercare services, and neither councils nor ICBs can delegate accountability for this.
The Ombudsman found the Trust, Council, and ICB failed to follow statutory guidance and local policy when discharging Mr X from Section 117 aftercare. Mr X and his parents should have been involved in the decision, which was not done.
Discharging him without proper process or communication caused uncertainty and distress, and may have contributed to his health decline and hospital admissions. It would have been in line with the Code of Practice for the Trust to have also involved Mr X’s parents.
While it could not be proved definitively that continued aftercare would have prevented hospital admissions, the failure to follow due process deprived Mr X of the opportunity to challenge the decision or access further support.
The organisations agreed to reassess Mr X’s needs, apologise, and improve staff training.
No specific financial compensation was mentioned, but the remedy included urgent reassessment as to whether Mr X still needed s117 status and services, together with service improvements including training, and policy or practice guidance amendments to staff, all of which needed to be evidenced to the joint team.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Section 117 of the Mental Health Act 1983 imposes a joint duty on councils and ICBs to provide aftercare for people discharged from detention under certain sections of the Act. This aftercare must be free and is to be provided until both bodies are satisfied the person no longer needs it for the purposes of aftercare.
The Mental Health Act 1983: Code of Practice is statutory guidance and must be followed unless there are good reasons not to.
The Code requires councils and ICBs to involve the person and, where appropriate, their carers or advocates, in any decision to end Section 117 aftercare. 2024 NHS England discharge Guidance specifically explores s117 and asks teams to RAG rate themselves as to ‘maturity’ with regard to compliance or exceeding of expectations for s117 process and outcomes.
Decisions to discharge should be joint, transparent, and fully communicated. Failure to follow these requirements is a breach of statutory duty.
The MHA Code of Practice says Councils and ICBs should continue to provide Section 117 aftercare until both organisations are satisfied the person no longer needs it. Councils and ICBs should involve the person, and their carer or advocate if they have one, in any decisions they make about ending Section 117 aftercare.
The Code of Practice also says Councils and ICBs may reinstate aftercare services if, for example, a patient’s mental health begins to worsen soon after services are withdrawn. In his complaint, Mr X explained his mental health had deteriorated shortly after he was discharged from Section 117. Mr X said he repeatedly asked for support, but said this was not provided.
The Ombudsman’s decision aligns with the core statutory duties under Section 117 and the Code of Practice. However, the Ombudsman said that the duty to provide aftercare is strict and cannot be delegated, and discharge should be a positive, evidence-based decision, not simply a withdrawal of services without full involvement and explanation.
This is simply not true: Regulation 5(b) of the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 specifically includes “functions under sections 25A to 25H and 117 of the Mental Health Act 1983” as functions that can be made subject to section 75 NHS Act 1006 partnership arrangements. This provides explicit statutory authority for ICBs’ section 117 aftercare to be delegated under section 75 arrangements. The NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 appear to remain in force and have been amended several times but are not available online to people without a Westlaw Subscription. We note that s117 is not mentioned as a health related function that can be made the subject of a s75 agreement from a local authority perspective, but that doesn’t matter because s79 of the Care Act clearly provides for authority to delegate local authority functions under s117 (to anyone, not just the NHS).
The case highlights the risk of harm and distress when councils and ICBs fail to follow due process, and the importance of robust, participatory decision-making. The Ombudsman’s recommendations for training and process improvement are obviously necessary, but ongoing monitoring and clear communication are also essential to prevent similar failures.
The bottom line is that Trust managers do not believe that there is a legal framework that governs their work, in our experience.
The legal position from community care law would further stress that any decision to end Section 117 aftercare must be based on clear evidence of need, with full involvement of the individual and their support network, and must not be influenced by resource constraints or administrative convenience.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Durham County Council (24 001 522) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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