There is frequently a problem when it is planned to discharge the patient out of area and the receiving CMHT either refuse to accept the patient or refuse to provide a satisfactory care package. In a current case of mine the care co. found a placement about 70 miles away from the funding authority and the receiving locality team have refused to accept him onto their caseload as he needs intensive forensic follow up. I have suggested that s117 requires the funding authority to either supply themselves (or buy in) this aftercare if the receiving locality team will not provide it.(They have searched within the funding locality and there is no suitable placement available so this will continue to be a problem.) The s117 funding for the placement is not the issue but nobody will support Conditional discharge without a receiving forensic team.
Any suggestions?
The facts aren’t entirely different to R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240, in which the health authority had failed to find a suitable supervising psychiatrist following a deferred conditional discharge, but had used all reasonable endeavours and so had acted lawfully.
Buxton LJ thought the patient might have a remedy in the European Court of Human Rights against the State. Sedley LJ doubted this but said:
In the present case it was doctors working for the North London Forensic Service, a limb of the Enfield Community Care NHS Trust, who formed the professional judgement that they could not responsibly undertake Miss K’s supervision in the community. If such an attitude were shown to have been adopted less as an exercise of professional judgement than as a closing of the ranks against an unwelcome decision of the Mental Health Review Tribunal, the courts would not be powerless to intervene.
If you could get a deferred conditional discharge, maybe with the help of independent evidence if you can’t persuade the treating team, then you could consider a judicial review depending on how much effort area A has made and the reasons for area B’s refusal.
I’ve tried to answer without reading the whole judgment or anything else, so I’m sure there are other points to add.
Yes, thanks Jonathan. Obtaining a DCD is a major problem as the RC clings stubbornly to his opinion that he can’t say client is ready for discharge until he has had leave to discharge placement and , as yet , I have not had a tribunal who are prepared to be helpful. I think that the Camden case was about a discharge to the same locality so my case has an extra layer of difficulty. I have experienced many cases of out of area discharge where authority B resists taking responsibility but , until now , they have always eventually caved in- to my surprise. I remember some training at a MHLA conference where we were told that authority B did have a duty to provide aftercare , aside from authority A’s 117 duty, but I am not sure where the duty stems from or how it can be enforced.
Hi Karen
I agree with Jonathan, i would look to obtain an independent social work expert. If that expert supports your client’s position that report can be provided to both the RA/LA (s.117 providers) and the FTT. You can invite the RA/LA to review their position in light of the independent expert’s opinion and if they refuse you can serve them with a letter before claim. the R (K) case supports you taking this approach.
I agree with you that the MHT are not keen to grant DCD when the funding position is so uncertain. I personally don’t think that is the right position for the tribunal to take but getting independent expert that supports your client will bolster your position. You can also provide a copy of the letter before claim to the FTT as evidence (attach it to a witness statement from your client) to show the steps being taken and the need for the FTT to support that course of action by granting a DCD.
Also I am still unsure whether or not a CMHT does have responsibility to provide care where a patient is discharged into their area. If they do , under which provision ?
A patient becomes eligible for Sect 117 aftercare if they are detained under either sect 3,37,45a, 47 or 48 of the mental health act , the CCG responsible for funding 117 aftercare is the CCG in whose area the patient was ordinarily resident at the time of admission as described in…
.Who Pays?
Determining which NHS
commissioner is responsible
for making payment to a
provider
Version number: 1
First published: August 2020
As i understand it responsibility for providing and funding 117 ceases if the patient is subsequently readmitted under one of the above sections.
However if the patient is residing another CCGs area and , registered with a GP in that area at the time of admission then they can be regarded as ordinarily resident in the second CCGs area and therefore the second CCG becomes responsible for funding and commissioning aftercare services for the patient if they are subsequently discharged .
I worked in Northamptonshire , we had St Andrews Hospital in Northampton ,a large private Psychiatric hospital taking patients from all over the country ,
The implications for our community mental health services and our commissioners if a large proportion of those patients chose to reside in our area was significant…
In a specific case EI were the MHRT chose to interpret sect 117responsibilty as residing with Northamptonshire (despite the patient being ordinarily resident in another area at time of admission ) we sought and won a judicial review overturning the MRHTs decision .
In the cases of Patients with complex enduring MH problems I believe the funding should move with the patient.
LW
Thank You Len that is helpful however I am still confused. There seems to be a division in many Trusts between Health funding (I.e residential accommodation) - which they unquestionably pay under s117 -and social care (CMHT follow up ) which seemed to follow the patient, until recently. Previously CCG in Area B would eventually take on responsibility for this social care , even if they initially complained about it , but recently some have started flatly refusing. I have never understood under which provision Trusts used to be able to persuade Area B CCG to provide social care and why that is no longer working.
When you say that in complex cases funding should follow the patient - do you know which provision says this?
Thank you !
Karen
Karen I said I believe funding should follow the patient , in certain cases of severe and enduring mental health problems were the patient requires complex aftercare and will probably need repeated readmissions , unfortunately there is no legislative provision for such a system .
DAC Beachcroft have a very good summary on their Website on the Changes made to 117 by the care act which clarifies that Statutory responsibility for Aftercare rests with the CCG and Local Authority for the area in which that patient was resident before admission .
Without detailed knowledge i cannot comment on individual cases
If you are able to clearly identify the CCG and LA who hold the 117 responsibility there should be no argument they will be in default of their statutory duties and therefore acting unlawfully if they refuse.
If the patient wishes to reside in another area it is still their responsibility to arrange aftercare with the other area.
Forgive me if go back to basics but the system should go like this .
The tribunal discharges the patient who then has a statutory entitlement to 117 , The Hospital has a responsibility to identify the responsible CCG and LA and jointly with them plan and carry out a discharge package under 117 .
Some areas such as Manchester and Cumbria now have integrated health and social care system’s designed to ensure that there are no arguments between NHS and LA over who should be providing and funding which services.
But you are right I spent the best part of 40 years having these sorts of arguments , I’m not up to date with recent case law but are you able to threaten them with a judicial review ?
Thanks Len. The problem is that my Client needs intensive support from an assertive forensic team after discharge and the responsible authority say that they cannot provide this at a distance. He is only being discharged out of area because there is no suitable residential care in his locality. They expected the forensic team in the discharge area to accept him and they refused so I have suggested they should explore buying in a private forensic team ( which I have known to happen.) If we could persuade a tribunal to defer a CD we would be in a stronger position but they just say he needs testing on leave.
Your reply is very helpful as it is precisely how I have always understood the situation. I have started to doubt myself in the last few years as my clients have been discharged all over the place and the receiving authority always seemed to provide aftercare against my expectation so I began to think there must be some new duty which I had missed.
one final thought occurs Karen , your client if he/she is FCS employed by NHS England their role( besides ensuring that inpatients receive the necessary treatments ) is to liase with community forensic teams and help to facilitate appropriate care pathways back into the community , as such they should have knowledge of appropriate teams and resources, . Have you able to discover with your clients FCS ?
Sorry I am not sure what FCS means?! He has an NHSE case manager who is actively engaged.
sorry Karen that should read "your client if he/she is in high medium or low secure care there will be a Forensic case manager FCM …
I haven’t read it yet but this is now on MHLO: NHS England, ‘Who Pays? Determining which NHS commissioner is responsible for making payment to a provider’ (25/8/20).