6.9 Section 117 Aftercare

1. Introduction

Section 117 of the Mental Health Act 1983 (2007) imposes a joint duty upon local authorities and Integrated Care Boards (ICBs) to provide free aftercare services to address the mental health related support needs of ‘qualifying patients’. This includes anybody who has been detained under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA). It also includes patients granted leave of absence under Section 17 of the Act and patients being discharged on community treatment orders (CTOs). The Care Act 2014 implemented some changes to the MHA (see Section 7, Care Act Amendments to Aftercare under the Mental Health Act 1983).

Section 3 of the Act is most commonly used. Anybody detained under this section can be detained to a psychiatric hospital for a period of up to six months, and is most likely to include people with organic conditions such as dementia or Alzheimer’s disease, and those with functional illnesses such as depression, schizophrenia and bi-polar disorder. Some people with personality disorders (PD) may also be detained. The other sections relate to restricted patients and hospital orders as directed by the Court.

An aftercare service is a service provided or arranged to meet a person’s need which has been identified arising from or related to mental disorder. Aftercare is defined as having both of the following elements:

• meeting a need arising from or related to a person’s mental health disorder; and
• reducing the risk of a deterioration of a person’s mental health condition.

As Section 117 enforces a duty on the ICB and adult social care services to provide care to meet eligible needs, Section 117 needs that arise directly because of or from the person’s mental disorder and are likely to prevent a deterioration in their condition which could lead to a readmission. If a person has additional social care needs, such as a physical disability, that do not arise because of their mental disorder, the usual social care eligibility criteria under the Care and Support Statutory Guidance applies to these needs.

If, at any point, it becomes apparent that a person who is be eligible for Section 117 aftercare has been paying for services, they can reclaim these payments as long as clear evidence is provided of their detention.

2. Section 117 Discharge Planning Meeting

The purpose of Section 117 aftercare is to provide any support, care and / or treatment that an eligible person may require to remain well and reduce any risk of deterioration to their mental health, requiring a readmission to hospital.

Aftercare can be provided through various services, dependant on the individual’s needs.

Before a person is to be discharged from hospital, there should be a Section 117 Discharge planning meeting. This allows all relevant professionals to discuss and agree with the person, and their family as appropriate, what care is required and how their identified needs can be met.

The Mental Health Act 1983 Code of Practice notes that discharge planning should be considered from the point of admission so that plans for discharge are discussed throughout the duration of the person’s detention. This ensures that a clear discharge plan is developed outlining all support networks in order to give individuals the best possible chance to manage well in the community when discharged.

Aftercare planning should be carried out in line with the Care Programme Approach (CPA). This is the framework used by mental health practitioners when supporting individuals with a mental disorder.

The CPA allocates a care co-ordinator, who is an individual worker responsible for the ongoing assessment, planning and review of a person’s care and / or treatment. The CPA adopts a multi-disciplinary approach to provide effective and coordinated support. The care plan should be developed jointly with the individual who will be receiving the support.

The care plan should cover each of the following, where appropriate:

• treatment plan, including any therapies;
• any prescribed medications;
• physical health concerns;
• support needs and how each of these needs are to be met;
• carer support;
• how to manage any deterioration to a person’s mental health;
• provision of a crisis management plan.

The focus of care planning is to promote recovery and reduce any further relapse within a person’s mental health.

3. Community Treatment Orders

Anyone subject to sections 3, 37, 45A, or 47 of the Mental Health Act can be discharged from hospital on a Community Treatment Order (CTO).

A CTO allows for conditions to be attached to a person’s discharge.

The person should be in agreement with the conditions as they must comply with the conditions in order to avoid recall to hospital. Aftercare services can also be received by those discharged on a CTO.

4. Provision of Section 117 Aftercare

Aftercare is not limited to services commissioned by the local authority. Employment services, voluntary opportunities, and spiritual and cultural support can also be used to meet a person’s needs for example.

An strengths based approach should be used when considering the care needs of any individual subject to Section 117. In some cases, the individual may require a long term placement such as nursing care, residential care, supported accommodation or other specialist care. These services will also be funded under Section 117 aftercare.

Some authorities may have different routes to access funding depending on the cost of the care package. Those which exceed standard care costs may have to be presented at additional funding panel. However, it is important to note that all care package costs are covered under Section 117.

Aftercare can be made available as a direct payment if this is requested by the individual.

5. Who is Responsible Funding Section 117 Aftercare?

Responsibility for the provision of section 117 services lies jointly with local authorities and ICBs.

The local authority adult social care service covering the area where a person lived before they were detained, is usually responsible for funding Section 117 aftercare (see Ordinary Residence chapter).

In relation to health, NHS England have issued guidance on deciding which NHS commissioner will be responsible for commissioning healthcare services and making payments to providers: Who Pays? (NHS England). 

Under the guidance, the originating ICB covering the GP practice where the person was registered before they were detained is responsible for commissioning and payment throughout the initial detention, for the whole period for which any s117 aftercare is provided and for any subsequent repeat detentions or voluntary admissions from aftercare, until such point as the patient is finally discharged from s117 aftercare – regardless of where the patient is treated.  Where the person is not registered with a GP practice, the responsible ICB will be that covering the geographic area in which the individual is ‘usually resident’.

Any disputes between authorities with regard to the responsibility of Section 117 and ordinary residence are determined by the Secretary of State for Health. See Ordinary Residence – Resolving Disputes in Health and Social Care, (DHSC).

It is the responsibility of the local authority to hold a register of all those subject to Section 117 within the authority.

Services provided as part of S117 aftercare are not means tested.

6. Section 117 and NHS Continuing Healthcare

See also Continuing Healthcare (NHS).

Where a person is eligible for services under section 117, these must be provided under section 117 and not under NHS Continuing Healthcare. However, a person in receipt of aftercare services under section 117 may also have ongoing needs that do not arise from, or are not related to, their mental disorder and that may, therefore, not fall within the scope of section 117. Also, a person may be receiving services under section 117 and then develop separate physical health needs (for example a stroke) which may then trigger the need to consider NHS Continuing Healthcare, but only in relation to these separate needs, bearing in mind that NHS Continuing Healthcare must not be used to meet section 117 needs.

7. Care Act Amendments to Aftercare under the Mental Health Act 1983

Section 75 of the Care Act 2014 clarified the meaning of aftercare and made minor amendments to section 117 of the Mental Health Act 1983. The changes remove anomalies in determining the responsible local authority in relation to the provision of aftercare services under the 1983 Act to people who have been detained in hospital for treatment of mental disorder and the provision of care and support services to which the Act applies.

It also inserts a new section 117A into the 1983 Act. This allows regulations which enable a person to express a preference for particular accommodation to be provided under section 117 (see Assessment chapter and Choice of Accommodation and Additional Payments Annex). It also makes a number of modifications to the application of certain provisions of the Act to enable direct payments to continue to be made in respect of section 117 services (see Direct Payments chapter).

Section 39 of the Care Act applies to a person who is provided with accommodation as part of their aftercare, under the MHA. They should be ordinarily resident in the area of the local authority who is responsible for their aftercare. Section 39 also applies to anyone who receives aftercare on leaving hospital (on or after 1 April 2015), irrespective of the date that they were discharged from detention under Section 117.

The Act clarifies that local authorities may commission as well as provide section 117 services. An Integrated Care Board (ICB), however, is under a duty to commission rather than provide section 117 services.

The Act applies the ordinary residence rules (see Ordinary Residence chapter) to section 117 in order to avoid anomalies which can currently arise where one local authority is responsible for commissioning section 117 services whilst another commissions any other services a person may need. The Secretary of State can resolve disputes as to which authority is liable to commission section 117 services, which could previously only be resolved through the courts.

8. Reviewing Section 117 Aftercare

Although not stipulated in the MHA Code of Practice, it is good practice to hold an annual review of Section 117 entitlement to ensure that the person’s needs are being met correctly. This may be linked in with a CPA review. It also provides opportunity to assess if Section 117 entitlement is still required and / or if the individual still wishes to remain subject to it.

Section 117 is designed to last for as long as the need for aftercare arises, in order to reduce the risk of deterioration and subsequent re-admission to hospital. This could be a short, medium or long term arrangement which will depend on the person’s individual circumstances.

9. Rescinding Section 117

Although the right to aftercare under Section 117 does not have period of expiry, it can be ended. This is often known as rescinding or being discharged from Section 117. If it is felt that a person no longer requires aftercare services, for example if a person has fully recovered from their illness, the local authority or the individual themselves can request for the Section 117 status to be removed.

For it to be removed the decision is to be agreed by both the relevant ICB and the local authority, who must be satisfied that removal of Section 117 is appropriate. It is good practice for this to be done in a formal meeting in which the entitled individual can have a representative present, for example a relative, friend or advocate.

The entitlement to Section 117 should not be removed if a person is still receiving any services that are in place for recovery / maintenance of a mental health condition. A person should not be discharged from Section 117 aftercare for any of the following reasons:

• being discharged from specialist mental health services, such as a community mental health team (CMHT);
• any length of time passing since discharge from the relevant section;
• further admission to hospital on either a voluntary basis or under section 2 of the MHA;
• the date of a CTO expiring;
• refusal of aftercare services.

Although Section 117 provides free aftercare, a person should never be sectioned just to achieve free care. Whilst section 117 entitlement provides free aftercare, however, such services must have the purpose of ‘meeting a need arising from or related to the person’s mental disorder’ and ‘reducing the risk of a deterioration of the person’s mental condition and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder.’

10. Further Reading

10.1 Related chapters

Defining Mental Disorder

10.2 Relevant information

Coexisting severe mental illness and substance misuse: community health and social care services (NICE)

Discharge from Mental Health Inpatient Settings (Department for Health and Social Care and NHS England)

Transition between inpatient mental health and community and care home settings (NICE)

Everything you wanted to know about Section.117 Mental Health Act 1983 but were afraid to ask – webinar (39 Essex Chambers)