Section 117 - Can the duty be ended before discharge based on an assessment that there are no aftercare needs?

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?

1 Like

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.

5 Likes

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.

1 Like

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.

1 Like

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.
2 Likes

Thank you Len. the case currently vexing me is one where a s.3 patient was discharged to another area (not mine) without any planned s.117 aftercare.
Mick

Thank you Jonathan.
The quote from the most recent ‘Jones’ is very relevant.
Everyone who has responded agrees on what is right and what is wrong. However what is more important is clarifying what is legal and what is not!

Mick

Hello Mick,
If a patient has been transferred to another area and the new area is trying to get out of providing S117 aftercare because of the transfer then this is clearly not legal. The person is still entitled to free aftercare funding however many times they are transferred before being discharged as it arises due to the S3 detention and treatment under MHA. The entitlement follows the patient through geographic area and through time (in the future). Attempts to get around this are illegal.

Hi Mick

My understanding is that the responsibility for Section 117 aftercare is with the original local authority where the patient was sectioned and ordinary resident. So the new area may not be responsible. If I understand this post correctly – Luke Clements, ‘What a mess - s117 ordinary residence (again)’ (2/1/22) – this has been contentious and subject to change. Luke Clements is a law professor and his blog is a useful resource.

If you think that a hospital trust or a local authority have acted unlawfully you need to make a formal complaint. These organisations have complaints procedures, look at their websites. When you receive the final response they must state which ombudsman you can take the complaint to if you are not satisfied. At this stage you should take the complaint to the appropriate ombudsman who will investigate. All of this can be done online.

I previously posted a link 21 003 925 - Local Government and Social Care Ombudsman to an ombudsman decision which involved the Cambridgeshire and Peterborough Foundation Trust (CPFT) and Peterborough City Council Social Services/Adult Social Care (PCC ASC) on a S117 issue. Both organisations responded but had acted unlawfully and incompetently. This case was taken up by the ombudsmen’s joint working team as it fell into the territory of both the Parliamentary and Health Service Ombudsman (PHSO) and the Local Government & Social Care Ombudsman (LGSCO). As S117 aftercare is a duty of both of both the local authority, the hospital trust, and the Care Commissioning Group (CCG) it is likely that any investigation will be the responsibility of the joint working team.

I suggest that you make complaints as soon as possible as there are time constraints. If you delay the ombudsman may not be able to look into it.

You did not explicitly say whether S117 was included in the discharge process as discussed earlier in this thread. Your later post suggests that it was and the paperwork will state where the responsibilities are. There is no harm or cost in complaining to both the the original and new area local authorities if you think they are at fault, as well as the hospital trust. If you are not satisfied with the responses take the complaint to the ombudsman ASAP .

1 Like

Just worth highlighting. Leave can mean Section 17 leave, therefore Section 117 aftercare begins at the point of leave, which would include Section 17 leave and extended Section 17 leave. It is referred to somewhere in Jones, but I do not have it in front of me. I have been involved in cases when someone has had section 17 leave to a specialist mental health placement for a period of assessment (6 weeks) to ascertain of the person could effectively be treated in the community. The placement was provided under 117 aftercare.

Also worth highlighting Wales has a different view to England with respect to 117 Aftercare and being discharged to different areas.

Also check the residence status at the time of the application. Had one case when a neighbouring LA refused to provide aftercare as they transferred the person under a 2 to ‘our’ hospital, which was then regraded to a 3 and they ‘tried to pin it on us’ for making the treatment application. I was weary that the other LA may try this, and made sure that the person wanted to return to the area they were last ordinarily resident. At the time of the application s/he was of NFA, and therefore his discharge destination came to the fore.

Whether this is the case depends on the nature of the s17 leave, as discussed in R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852. The relevant part of the MHLO summary is:

The patient’s mother drove weekly to accompany her son on escorted community leave bus trips. When he turned 18, the Children Act 1989 funding ceased and she sought judicial review of the refusal to fund her travel costs under MHA 1983 s117. (1) The patient did not “cease to be detained” or “leave hospital” within the meaning of s117(1) when on leave and so was not a person to whom s117 applied, and also the services provided did not constitute “after-care services” within the meaning of s117(6). (2) In other cases, such as a patient living in the community on a either a full-time or part-time trial basis, the s117 duty could arise.

So maybe, in theory, if the s117 duty begins during s17 leave it could be ended during that leave too, and therefore before discharge from s3… though it likely wouldn’t withstand much scrutiny.

Regarding 117 being applicable when the patient is granted leave, the Welsh Code of Practice has the following.

27.21 The responsible clinician’s obligation for the patient’s care remains the same while they are on leave, although it is exercised in a different way. The duty to provide aftercare under section 117 applies to patients who are on leave of absence and if needed this should be provided.

I believe that this view was informed by R v Richmond LBC ex parte W [1999] MHLR 149. One of the cases involved a Section 3 patient who was asked to contribute to his care following a leave of absence to a residential care home.