As it is Mental Health Awareness Week 2017, have you ever wondered what entitlements you have to aftercare should you be detained under a treatment section of the Mental Health Act 1983 (MHA 1983)?
Section 117 MHA 1983 deals with such entitlements. The provision of aftercare is often the defining factor between an individual “surviving” or “thriving” in the community. This is a very complicated area of the law which can cause problems in many cases but the Mental Health Lawyers at Swain & Co are experts in this field and can assist you with any queries you may have in relation to aftercare.
S117 aftercare – what is it?
S117 places a joint duty on clinical commissioning groups (CCG) (or local health board in Wales), and Local Social Services Authorities (LSSA) to provide, in co-operation with relevant voluntary agencies, aftercare services for certain classes of detained patients who have been detained under a “treatment” section. This includes individuals detained under Section 3, Section 17A (Community Treatment Order) Section 37, Section 37/41, Section 47/49 and S45A of the Mental Health Act 1983.
Aftercare services are defined under S117 as meaning services which have two purposes. The first purpose is that the services must meet a need arising from or related to an individual’s mental disorder. The second purpose is that the services must reduce the risk of a deterioration of an individual’s mental condition (and, accordingly, reducing the risk of the individual requiring admission to a hospital again for treatment for mental disorder). Accordingly, you will only be provided with aftercare services under s117 where such services will have both purposes.
It is now known that CCGs and LSSAs must interpret the definition of aftercare services broadly. Healthcare, social care, employment services, supported accommodation and services to meet an individual’s wider social, cultural and spiritual needs can all fall under the umbrella term of “s117 aftercare” providing these services meet a need that arises directly from or is related to the particular individual’s mental disorder, and help to reduce risk of deterioration in the individual’s mental condition. The ultimate aim is to maintain individuals in the community with as few restrictions as are necessary.
The duty to provide aftercare begins when a patient leaves hospital but planning of necessary aftercare needs to start as soon as the patient is admitted to hospital. This is because aftercare is a vital component in the overall treatment and care of individuals who suffer from mental disorder and have received treatment under the Mental Health Act 1983 for the same. If you have been detained under a treatment section, you are entitled to this care. S117 does not contain a charging provision so you should not be charged for any after-care provided under this section, including caring residential accommodation in the community. Instead, the after-care should be funded by the CCG in the area within which you were “ordinary resident” prior to your admission to hospital.
Throughout our many years of experience in representing individuals who have been detained under the Mental Health Act 1983, the issue of aftercare and the availability and funding of the same is quite often problematic and can result in discharges being delayed/not happening at all. This, in turn, results in individuals’ liberty being restricted for longer periods of time than it should be. This is inappropriate and unjustified.
Putting an end to funding issues in relation to aftercare has been one of the Government’s aims in recent years. This is of paramount importance because quite often no entity will take responsibility for the payment of aftercare services. This area of law is rife with conflict and arguments which primarily stem from lack of funding available to the Mental Health Services. The authorities that must fund any aftercare services are those from the area within which the individual was “ordinarily resident” prior to detention. The rules now state that if a patient who is resident in the area of CCG A is discharged to the area of CCG B, the responsibility to pay for s117 aftercare remains with CCG A; if the patient is subsequently readmitted or recalled to hospital for assessment or treatment of his mental disorder (except where the admission is into ‘specialised commissioned services’), or changes his GP practice (and associated CCG), CCG A still retains responsibility. There is also now a statutory mechanism for resolving disputes between authorities under s117(4) and (5) of the Mental Health Act 1983.
This change in rules had the aim of reducing the conflict relating to the funding of aftercare, however, in practice we have seen very little change. The authorities now contest where clients should be considered to have been ordinarily resident prior to admission to hospital and, thus, further problems arise in the identification of “ordinary residence”.
When such issues arise, as Lawyers, we will try our utmost to sort the issues out quickly and promptly to try to ensure our clients are not deprived of liberty for a longer period of time than necessary. The provision of aftercare is imperative and we will work tirelessly to ensure our clients will get the aftercare they need upon discharge from hospital. It is, quite often, the difference between individuals “surviving” and “thriving” in the community and we work hard to help our clients to thrive.
Swain & Co Solicitors work tirelessly to assist vulnerable people and ensure that their rights under the Mental Health Act are observed, including their right to s117 aftercare. If you, a family member or friend are experiencing problems or are detained under the Mental Health Act contact our team today on 023 92 483322.