S.117 - a duty to provide aftercare services, or merely to assess if they are required?

Detention under a s.117 qualifying section imposes a duty on the relevant statutory bodies to provide aftercare to meet assessed needs.
What are the duties and responsibilities of the statutory health and social care bodies if they do not believe that any aftercare needs are required upon discharge from hospital?
Must the patient be placed upon the relevant s.117 aftercare register, and then assessed, and subsequently taken off the register if the assessment concludes that they have no aftercare needs and the relevant statutory bodies to be relieved of any subsequent commissioning responsibilities OR is it legitimate for the patient never to be placed on the s.117 register in the first place and the relevant statutory bodies to be thus relieved of any subsequent commissioning responsibilities because a pre-discharge assessment concludes that no aftercare needs are present?

Hello Mick,
I would think if the patient has been on the relevant qualifying MHA section (eg section 3) then they will always henceforth, potentially be legally entitled to S117 aftercare funding; this entitlement cannot be removed simply because a pre-discharge assessment of the person concludes no aftercare is needed. The S117 entitlement is designed to prevent the patient becoming ill again and this depends on whether they ‘ever’ need aftercare at any time because of mental health not whether a ‘one time’ hospital assessment decided they did not need it. The legal right derives from MHA law.

I think that Mick’s first scenario is correct. The natural reading of s117(1) and (2) seems to be that the duty begins when the patient ceases to be detained and leaves hospital, and that it can be ended – but I don’t think it can be ended before it begins. I’m not aware of any cases on this point, though.

Here’s the text of the Act, with the relevant part highlighted:

(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.

(2) It shall be the duty of the integrated care board or Local Health Board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the integrated care board or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a community patient while he remains such a patient.

Here’s the solicitor’s favourite after-care quote from the Code of Practice (with emphasis added again):

33.10 Although the duty to provide after-care begins when the patient leaves hospital, the planning of after-care needs to start as soon as the patient is admitted to hospital.

In his MHA Manual commentary, Richard Jones says (24th edn, 1-1187, p553):

A decision that a patient no longer qualifies for services under this section can only be made if the after-care bodies have monitored the patient’s progress in the community since discharge.

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An issue that frequently arose was when patients /clients moved between LA .CCG areas .
There is a clear duty on the Authorities in the area from which the patient is moving to ensure .appropriate aftercare services are in place in the receiving area and if necessary fund them.

Hello Jonathan,
As you say, you can’t end the S117 aftercare before it starts just by using some kind of ‘in house’ hospital assessment, conveniently cancelling out any after costs before they started. From my experience, funding S117 correctly (as opposed to blanket capped £23k dom care and illegal top-ups) is resisted vigorously by CCG/Council, using many ‘tactics’ (putting it politely). Not as straightforward as people are led to believe.

Hi

The hospital’s discharge procedures will include arranging S117 aftercare services. It would be a brave hospital & local authority team that decides that a patient should have their entitlement to S117 aftercare removed before discharge. There is no information about the patient, whether they have been consulted, whether they might reasonably object, or even have the capacity to object. The main, if not only, reason to remove S117 aftercare is apparently to save the hospital and local authority the bother of doing the paperwork. This sounds dubious ethically. There is no downside to the patient in being subject to S117 aftercare and no benefit in removing it so quickly. It also stretches credibility that there is absolutely no risk of relapse. Was the patient lawfully sectioned in the first place?

Being subject to S117 aftercare does not even guarantee that a patient gets any aftercare or that it is ever reviewed. See this recent Ombudsman case: https://www.lgo.org.uk/decisions/health/mental-health-services/21-003-925a. Apparently S117 reviews never occurred, the patient was discharged from all mental health services, and no explicit S117 aftercare was ever provided.

I’ve just read a Court of Protection case tonight that comments in passing on s117 – PH v A Clinical Commissioning Group [2022] EWCOP 12. Interestingly, the judge described the section as imposing a duty before the patient leaves hospital (emphasis added):

  1. Section 117 is the vehicle by which detained patients under the MHA should be moved along their pathway within the Hospital towards a package of care outside hospital which hopefully will keep them reasonably well and out of detention in the future. The section imposes on the CCG and the Council a statutory duty to work together and with other agencies to ensure Peter is given the best opportunity to be discharged. If they fail in that duty- either by not observing it, or falling short of complying adequately with it, Peter is able to challenge them in the Administrative Court by way of judicial review.
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