Aftercare under Section 117 of the Mental Health Act 1983
Scope of this chapter
This policy applies when a child or care leaver is discharged from hospital after having been detained under the Mental Health Act 1983.
Related guidance
- Mental Health Act 1983: Code of Practice Chapter 33 After-care and Chapter 34 Care Programme Approach
- Self-harm: Assessment, Management and Preventing Recurrence NICE Guidance
Amendment
In May 2024, Section 2, Ordinary Residence was updated in line with case law.
Section 117 of the Mental Health Act 1983 requires Integrated Care Boards ('ICBs') and local social services authorities to provide aftercare services to patients who were detained in hospital for treatment under section 3, 37, 45A, 47 or 48 of the Mental Health Act 1983 ('the Act') and who are no longer detained.
The sections of the Act to which this duty relates are all concerned with compulsory detention in a hospital:
- Section 3 deals with patients who are detained in hospital for treatment;
- Section 37 gives the magistrates' court or crown court a power to direct that a person will be detained in hospital either following conviction for an offence or on being satisfied that the person carried out the action that would have constituted the offence;
- Section 45A gives the higher courts a power to direct that a person convicted of an offence shall be detained in hospital instead of being detained on prison;
- Section 47 authorises the Secretary of State to direct that a person serving a prison sentence shall be detained in hospital;
- Section 48 authorises the Secretary of State to direct that a person who has been remanded to custody or detained under immigration legislation shall be detained in hospital.
This includes situations where eligible patients have remained in hospital informally after ceasing to be detained under the Mental Health Act.
The duty to provide aftercare services continues as long as the patient is in need of such services.
'Aftercare services' means services which meet a need arising from/related to the young person's mental disorder which reduce the risk of a deterioration in their mental condition and thus reduce the risk of them requiring admission to hospital again. The ultimate aim is to maintain patients in the community, with as few restrictions as necessary, wherever possible.
ICBs and local authorities should interpret the definition broadly. It can include healthcare, social care and employment services, supported accommodation and services to meet the young person's wider social, cultural and spiritual needs, if these services meet a need that arises directly from, or is related to, the young person's mental disorder and helps to reduce the risk of a deterioration in their mental condition. After-care should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital.
After-care services must be jointly provided or commissioned by local authorities and ICBs, who should maintain a record of people for whom they provide or commission after-care and what after-care services are provided.
Section 117(3) provides that the responsible bodies will be those:
'if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which [they were] ordinarily resident'.
The interpretation of this provision has been the subject of case-law. In R (Worcestershire County Council) v SSHSC [2023] UKSC 31, the Supreme Court held that:
- A duty under section 117(2) to provide after-care services automatically ceases when the patient is detained again (‘the second detention’) for treatment under section 3 (or another provision specified in section 117(1) – a hospital order or direction under section 45A or a transfer direction under section 47 or 48) (but not a voluntary admission or an admission for assessment under section 2 Mental Health Act 1983);
- Upon the second discharge (i.e. discharge from the second detention), a new duty is placed on the local authority of the area in which the patient was ordinarily resident immediately before the second detention;
- The words 'is ordinarily resident' must be given their usual meaning, with the adaption where there is lack of capacity that the mental aspects of the Shah test (voluntary adoption and settled purpose) must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned.
In light of this ruling, it is anticipated that the government will provide updated guidance but, until such time, legal advice should continue to be sought as necessary.
Although the duty to provide aftercare services begins when the young person leaves hospital, planning should start as soon as possible after they are admitted. ICBs and local authorities should take reasonable steps to identify appropriate after-care services for young people in good time for their eventual discharge from hospital.
After-care should be planned within the framework of the Care Programme Approach.
After-care planning requires a thorough assessment of the young person's needs and wishes. It is likely to involve consideration of:
- Continuing mental healthcare;
- The psychological needs of the young person and of their family;
- Physical healthcare;
- Daytime activities or employment;
- Appropriate accommodation - if the aftercare plan includes the provision of accommodation, and the young person has committed one or more criminal offences, the circumstances of any victims of the offence(s) and of their families should be taken into account when deciding where the young person should live;
- Identified risks and safety issues;
- Any specific needs arising from, for example, co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder;
- Any specific needs arising from drug, alcohol or substance misuse;
- Any parenting or caring needs;
- Social, cultural or spiritual needs;
- Counselling and personal support;
- Assistance in welfare rights and managing finances;
- The involvement of authorities and agencies in a different area, if the young person is not going to live locally;
- The involvement of other agencies, for example the National Probation Service or voluntary organisations;
- Any conditions likely to be imposed by the Secretary of State for Justice or the Tribunal;
- Contingency plans (should the young person's mental health deteriorate); and
- Crisis contact details.
Professionals with specialist expertise should also be involved in after-care planning for young people with autistic spectrum disorders or learning disabilities.
After-care planning should take account of the young person's age, and should involve their parent/carer (as appropriate) to ensure that they will be ready and able to provide the assistance which the young person may need.
In order to ensure that the After-care Plan reflects the full range of needs of the young person, it is important to consider who needs to be involved. Subject to the views of the young person, this may include:
- The young person's responsible clinician;
- Nurses and other professionals involved in caring for the young person in hospital;
- A practitioner psychologist, community mental health nurse and other members of the community mental health team;
- GP and primary care team;
- Any carers who will be involved in looking after the young person outside hospital including, where relevant, those with parental responsibility;
- The patients' nearest relative or other carers;
- A representative of any relevant voluntary organisations;
- MAPPA co-ordinator if applicable;
- National Probation Service if applicable;
- A representative of housing authorities if accommodation is an issue;
- The ICB's appointed clinical representative if appropriate;
- An Independent Mental Health Advocate, if the young person has one;
- An Independent Mental Capacity Advocate, if the young person has one;
- Attorney/Deputy if applicable;
- A person to whom the local authority is considering making Direct Payments for the young person;
- Any other representative nominated by the patient; and
- Anyone with authority under the Mental Capacity Act 2005 to act on the young person's behalf.
The practitioners concerned, in discussion with the young person, should agree an outline of the young person's needs and a timescale for implementing the various aspects of the Aftercare Plan. All key people with specific responsibilities should be identified.
It is important that those who are involved in discussions about Aftercare Plans are able to make commitments about their own continuing involvement and the services to be provided or commissioned. If the worker will need to seek approval for this, extra time must be set aside for planning so that this causes no delay to the implementation of the after-care plan.
The After-care Plan (under the Care Programme Approach) aims to ensure a transparent, accountable and co-ordinated approach to meeting wide ranging physical, psychological, emotional and social needs associated with the young person's mental disorder. It should set out the practicalities of how the young person will receive treatment, care and support day-to-day and should not place undue reliance on the young person's carers.
Included within the After-care Plan are:
- A Treatment Plan which details medical, nursing, psychological and other therapeutic support for the purpose of meeting the young person's individual needs promoting recovery and/or preventing deterioration;
- Details regarding any prescribed medications;
- Details of any actions to address physical health problems or reduce the likelihood of health inequalities;
- Details of how the young person will be supported to achieve their personal goals;
- Support provided in relation to social needs such as housing, occupation, finances etc.
- Support provided by carers;
- Actions to be taken in the event of a deterioration of the young person's presentation; and
- Guidance on actions to be taken in the event of a crisis.
After-care Plans should include details of any areas of need which are critical to preventing behavioural disturbance, and should provide guidance on how staff/carers should respond if behavioural disturbance does arise.
The After-care Plan should identify a named individual as Care Co-ordinator who has responsibility for co-ordinating the preparation, implementation and evaluation of the After-care Plan.
The After-care Plan should be recorded in writing and a copy given to the young person. It is essential that any changes are discussed with the young person as well as others involved, before they are implemented. The After-care Plan should be regularly reviewed. It will be the responsibility of the Care Co-ordinator to arrange reviews of the Plan until it is agreed between all parties, including the young person, that it is no longer necessary.
The After-care Plan will need to be reviewed if the young person moves to another area. The Care Co-ordinator in the original area will be responsible for making transfer arrangements if commissioning responsibility consequently passes to authorities in the new area.
A local authority may make Direct Payments to a representative of the child/young person to pay for after-care services, having regard to whether it is appropriate for the person's condition, the impact of that condition on their life and whether a Direct Payment represents value for money.
See also: Direct Payments Procedure.
The duty to provide aftercare services exists until both the local authority and the Integrated Care Board are satisfied that the young person no longer requires them, for example where their mental health has improved to the point where they no longer need after-care services.
Services should not be withdrawn solely because the young person has been discharged from the care of specialist mental health services, or because an arbitrary time limit has passed.
The young person and their carer/advocate if applicable, should be fully involved in the process of ending their after-care.
After-care services may be reinstated if it becomes obvious that they have been withdrawn prematurely, e.g. where a young person's mental condition begins to deteriorate immediately after services are withdrawn.
Last Updated: May 1, 2024
v16
