Section 117 aftercare policy (North Lincolnshire)

This is a policy between North Lincolnshire Health and Care Partnership, North Lincolnshire Council and Rotherham Doncaster and South Humber NHS Foundation Trust.

Contents

1 Foreword

North Lincolnshire strives to achieve the best experiences and outcomes for our residents. Our ambition is for North Lincolnshire to be the best place for all our residents to be safe, well, prosperous and connected. We continue to drive our organisational goals of progressive and enabling in our approach, financially and environmentally sustainable.

2 Introduction

2.1 At a glance

Section 117 is a statutory duty on both Health and Local Authorities to provide after-care for people who have been detained under the eligible sections of the Mental Health Act (1983/2007). Services provided under section 117 are specifically intended to reduce the prospect of compulsory or informal readmission to hospital on mental health grounds. Needs that relate only to the physical health or disability of the individual (and not related to mental health needs) are not subject to section 117. The duties to provide after-care services continue until both authorities are “satisfied” that the individual no longer needs any after-care services.

Section 117 Mental Health Act 1983 (MHA 1983) imposes statutory joint responsibilities and duties on integrated care boards (ICB) and local social services authorities to provide after care for individuals who have been detained under section 3, 37, 45A, 47 and 48 of the MHA 1983. This includes individuals granted leave of absence under section 17 of the MHA 1983 and individuals going onto community treatment orders.

There is no lower age limit on the duties and powers of the MHA 1983. This policy therefore applies to both children and adults who have been detained under relevant sections of the MHA 1983.

For individuals who are in contact with specialist mental health providers section 117 of the MHA 1983 this does not replace arrangements under the care programme approach (CPA) or relevant statutory and planning frameworks for children, and where appropriate these should be integrated alongside each other.

To note, CPA is to be replaced by a new framework. Details will be updated once the new framework has been agreed

The Health Service Circular HSC 2000/003 and Local Authority Circular LAC 2000(3) states that: “social services and health authorities should establish jointly agreed local policies on providing section 117 Mental Health Act after-care. Policies should set out clearly the criteria for deciding which services fall under section 117 Mental Health Act and which authorities should finance them. The section 117 Mental Health Act after-care plan should indicate which services are provided as part of the plan. After-care provision under section 117 of the Mental Health Act does not have to continue indefinitely. It is for the responsible health and social services authorities to decide in each case when after-care provided under section 117 Mental Health Act should end, taking account of the patient’s needs at the time. It is for the authority responsible for providing particular services to take the lead in deciding when those services are no longer required. The patient, his or her carers, and other agencies should always be consulted”.

The Mental Health Act Code of Practice 2015 paragraph 33.3 states that “after-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition (and, accordingly, reducing the risk of the patient requiring admission to hospital again for treatment for mental disorder. Their ultimate aim is to maintain patients in the community, with as few restrictions as are necessary, wherever possible”.

3 Purpose

The purpose of this policy is to set out a clear framework and commitment to the provision of after care services for individuals who are entitled to those services under section 117 of the MHA 1983 and who are residents of North Lincolnshire. It will ensure that:

• all relevant organisations within North Lincolnshire are aware of their section 117 responsibilities
• all staff within these organisations are aware of their section 117 responsibilities
• local interpretation of section 117 is in line with the legal requirements under the MHA 1983
• there is agreement between the local authority (LA) and health care partnership (HCP) regarding practices in relation to section 117 after care decision-making, and the commissioning of packages of care
• multi-agency practice, planning and decision-making is joined-up and aligned with the local strategic framework, values and principles, namely that where possible support and care is delivered at home and, or close to home, in communities
• the provision of support and care is regularly reviewed and leads to the achievement of outcomes

4 Scope

This joint policy is between North Lincolnshire Health and Care Partnership (NLHCP), North Lincolnshire Council (NLC) and Rotherham, Doncaster and South Humber NHS Foundation Trust (RDaSH). It must be followed by all those who work for these organisations including the governing body, those on temporary or honorary contracts, secondments, pool staff, contractors and students.

It applies to all children and adults individuals entitled to aftercare under section 117 of the MHA 1983 within the North Lincolnshire locality.

5 Duties and responsibilities

The MHA 1983 says that the responsible after-care bodies are the LA and the HCP for the area in which the individual was ordinarily and usually resident prior to detention. As a partnership the NLHCP, NLC and RDaSH are committed to the ongoing support and recovery of children and adults through the effective coordination of section 117 after care provision and children and adults who are not entitled or who no longer require such services, have the entitlement reviewed and where appropriate ended. It is the responsibility of all signatory bodies to ensure compliance with this protocol.

The ward manager (or delegated staff) is to ensure there is a pre-discharge meeting on the ward involving partners so services that fall under section 117 are considered and agreed prior to the individual’s discharge from hospital. Please refer to the operational guidance for all related documents or templates.

The local authority has a duty to assess individuals who may have eligible social care needs. Eligible social care needs may be met by commissioned services or via direct payment. At the time of admission, children who are already receiving social care support under section 17 Children Act 1989, there will already be an existing assessment of need. For children who are not receiving such support, there should be a notification to children’s social care under section 85 or 86 of the Children Act 1989 if the likelihood is that care will be needed for 12 weeks or more. With consent, such a referral should be made at the earliest point to enable early assessment of need and the provision of family help if required.

A lead professional is identified by the provider (RDaSH) who will ensure that section 117 requirements are considered or met, including the section 117 review processes.

The local protocol will provide guidance for those individuals not in receipt of specialist mental health services.

6 Equality and diversity

Where individuals are being detained or receiving treatment under the terms of the act it is vital that no community group is treated less favourably. Where an individual’s legal status is affected, there is a duty to inform them of their rights regardless of their language or communication difficulties. When people with physical and, or sensory needs are detained, clinical staff should identify this need as soon as possible to enable access to appropriate support. Where religious belief is important to individuals this will be respected, and access to relevant faith leaders and information will be supported.

It is important that the equality and diversity needs of family members of children receiving section 117 after care are also considered when supporting children and young people.

7 Section 117 aftercare

Some children and adults who have been kept in hospital under the Mental Health Act can get free help and support after they leave hospital. The law that gives this right is section 117 of the Mental Health Act, and it is often referred to as “section 117 aftercare”.

Section 75 of the Care Act 2014 amends the MHA 1983 by providing for the first time a definition of aftercare services as “aftercare services in relation to an individual, means services which have both of the following purposes:

• meeting a need arising from or related to the individual’s mental disorder
• reducing the risk of a deterioration of the individual’s mental condition (accordingly, reducing the risk of the individual requiring admission to a hospital again for treatment for mental disorder)

Section 117 services are not concerned with support in general, but those which are required to meet an assessed care need that arises from an individual’s mental disorder and are aimed at minimising the need for future re-admissions to hospital for treatment for that disorder. The services may include:

• provision of domiciliary services
• access to accommodation and welfare rights
• social work support
• day services, for example, support with employment, social inclusion and relationships
• medical supervision and psychological support
• specialist welfare rights and housing benefit advice
• advice on employment

Services providing care or support for a physical disability, illness, substance misuse problems, and common needs not arising from the individual’s mental health disorder cannot be provided under section 117. These must be met under separate health and community care legislation, for example Children Act 1989.

Guidance on the aims of aftercare services is provided in the Mental Health Code of Practice 2015 at 33.5; “After-care is a vital component in patients’ overall treatment and care. As well as meeting their immediate needs for health and social care, 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”. Section 117 therefore gives considerable discretion to HCPs and LAs as to what services they provide to meet aftercare needs.

In relation to social care; eligibility for the provision of aftercare services under section 117 MHA 1983 should be clearly set out in any social care assessment under the provisions of the Care Act 2014 or Children Act 1989 and all those who require social care as part of their aftercare plan.

7.1 Who is entitled to aftercare under section 117?

S117 states that aftercare services must be provided to adults or children who have been detained in hospital under:

• section 3 for treatment in hospital
• section 37 hospital order detaining an individual who has been transferred by the courts to hospital for treatment (with or without a section 41 restriction order). However, guardianship under section 37 does not confer section 117 eligibility
• section 45A for treatment in hospital by a direction of the court
• section 47 or 48 orders detaining an individual transferred from prison to hospital for treatment
• section 47 or 49 orders detaining an individual transferred from prison to hospital for treatment with restrictions
• section 3 detained for treatment and then placed on guardianship under section 7

This includes individuals on authorised section 17 (Mental Health Act) leave from hospital.

It also includes individuals who were previously detained under section 3 but who stayed in hospital after discharge from section (at the point that they leave hospital). It also includes people who are living in the community subject to a community treatment order and restricted individuals who have been conditionally discharged.

However, section 117 does not apply to:

• individuals detained in hospital for assessment under section 2
• individuals detained in an emergency under section 4
• individuals detained while already in hospital under section 5(2) or 5(4)
• individuals detained under sections 135 or 136
• individuals who were not detained under any section (informal or voluntary)
• individuals where section 117 has been rescinded
• individuals with presenting needs unrelated to their diagnosed mental disorder
• individuals detained under 35, 36, 38 and 44

7.2 What does section 117 mean for individuals?

Before a decision is taken to discharge from hospital or grant section 17 leave to an individual with section 117 entitlement, it is the responsibility of the responsible clinician (RC), in consultation with other professionals concerned, to ensure that the individual’s needs for health and social care are fully assessed and that a care plan is in place which addresses those needs. If the individual is granted section 17 leave for only a short period, a less comprehensive review may suffice but the arrangements for the individuals after care should still be properly recorded. In the case of children being granted section 17 leave, consideration should be given to the suitability of the proposed care arrangement for the duration of that section 17 leave.

Individuals remain eligible for s117 even when they remain in hospital on an informal basis following a period of detention under section 3, section 37, section 45a, section 47 or section 48 or if they are re-admitted under section 2 or on an informal basis in the future for the same mental health disorder. However, they would not be in receipt of services until they left hospital or were on authorised leave.

The planning for aftercare should start as soon as the individual is admitted to hospital.

7.3 Refusal of section 117 aftercare

Individuals who refuse services or disengage from services are still eligible for section 117. In these circumstances a care plan should be completed. This plan should include a risk assessment which outlines how any identified risks will be managed and a date for the care plan to be reviewed. In North Lincolnshire, when supporting children specifically, this may include the completion of a children services assessment. Any unwillingness or refusal to receive aftercare should not be equated with the absence of need for aftercare; therefore, eligibility to section 117 remains applicable.

The planning, implementation and review of section 117 aftercare services should be completed in line with statutory guidance related to children and adults, or the agreed local processes where these are more appropriate.

7.4 Care programme approach

The care programme approach (to be updated with a new framework once formalised) provides a framework within which services are assessed, planned, co-ordinated and reviewed for someone with mental health problems or with a range of related complex needs. CPA is for individuals who have more complex mental health needs, are at most risk or have mental health problems compounded by disadvantage and need support from multiple agencies.

Whilst in receipt of secondary mental health services, CPA should be applied to all individuals under section 117 as it is considered best practice in terms of multi-disciplinary care planning, monitoring and reviewing within mental health. In the case of children, this may be completed as part of statutory assessment under the Children Act 1989.

There should always be a section 117 discharge planning meeting prior to discharge from hospital. The outcome must be distributed to the MDT.

7.5 Care planning

Planning for the individuals after-care needs should commence on admission. Reasonable steps should be undertaken to identify appropriate services, and prepare, well before actual discharge from hospital. In relation to children, a referral to children social care may be appropriate and should be discussed with the family at the earliest point. After-care for all individuals admitted to hospital for treatment of their mental health needs should be planned for within the framework of the care programme approach, whether they will be entitled to after-care services under section 117 of the Mental Health Act (1983).

The MHA code of practice requires that prior to the formulation of any care plan a comprehensive and holistic assessment of need should be undertaken by the care co-ordinator and should include a consideration of the sixteen identified aspects of need listed in section 34.19 of the MHA code of practice:

1. continuing mental healthcare, whether in the community or on an outpatient basis
2. the psychological needs of the patient and, where appropriate, of their carers
3. physical healthcare
4. daytime activities or employment
5. appropriate accommodation
6. identified risks and safety issues
7. any specific needs arising from, for example, co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder
8. any specific needs arising from drug, alcohol or substance misuse (if relevant)
9. any parenting or caring needs
10. social, cultural or spiritual needs
11. counselling and personal support
12. assistance in welfare rights and managing finances
13. involvement of authorities and agencies in a different area, if the patient is not going to live locally
14. the involvement of other agencies, for example, the probation service or voluntary organisations (if relevant)
15. for a restricted patient, the conditions which the Secretary of State for Justice or the first-tier tribunal has, or is likely to impose on their conditional discharge
16. contingency plans (should the patient’s mental health deteriorate) and crisis contact details

Once a comprehensive assessment of need has been undertaken it is the responsibility of the RC to ensure discussion takes place to develop a care plan to meet the individuals ongoing health and social care needs. This discussion will usually be a multi-professional meeting in the hospital and should involve:

• responsible clinician
• a nurse involved with the individual’s hospital care
• a social worker (where appropriate)
• the education provider (where appropriate)
• a community psychiatric nurse or registered nurse LD (where appropriate)
• the individual
• the individuals relative or nominated representative (this could be an independent mental health advocate)
• the GP
• a representative from relevant voluntary organisation (where appropriate)
• in the case of a restricted individual, the probation service where appropriate

Discharge planning should start at the earliest opportunity to enable funding streams to be agreed in principle, prior to the individuals final discharge to avert any potential delay. It is important that those who are involved in the discharge planning are able to make, as far as possible, decisions regarding their own agency’s involvement. If approval for a plan needs to be obtained from a more senior level, it is important that this causes no delay to the implementation of the care plan. Those contributing to aftercare planning must always consider:

• the individuals’ wishes and needs
• the views of relatives or friends
• establish a care plan based on assessment of identified needs
• commissioning of services

The after-care plan should set out clearly the section 117 aftercare services to be provided and record which authority or authorities are funding which parts of the package of care.

The aftercare plan should be recorded on the appropriate documentation. Please refer to operational guidance.

The aftercare plan must be jointly agreed between health and social care services at a multi-disciplinary discharge meeting.

Before deciding to discharge an individual from hospital, granting periods of leave or placing an individual on to community treatment orders, the responsible clinician should ensure that the aftercare needs have been fully assessed and discussed with the individual, and their parent or carer where appropriate, and that confirmation of section 117 funding arrangements have been agreed and recorded. Any period of section 17 leave, which includes an overnight stay, will necessitate an after-care plan for those that are eligible for section 117 aftercare.

7.6 Funding responsibilities

As a partnership NLHCP and NLC are committed to the ongoing support and recovery of children and adults in North Lincolnshire through the effective co-ordination of section 117 aftercare provision and with local and distant partners aim to produce a framework that ensures delivery of this. Through this partnership and joint commissioning approach NL HCP and NLC are committed to ensuring that individuals receive the services to which they are entitled under section 117 and individuals who are not entitled or who no longer require such services have the entitlement reviewed and where appropriate ended.

These arrangements apply only to the funding of support packages relating to the individual’s section 117 aftercare needs, to address the needs that arise from the mental health disorder for which they were detained. Previous commissioned packages of care from previous care needs, prior to section 117 eligibility, not relating to mental health, will not be included in section 117 funding. In relation to adults, if individual needs are identified that are unrelated to the mental health condition for which they were detained, these will continue to be subject to the usual eligibility requirements under health and social care eligibility criteria and subject to potential charging for these services, in line with the charging policy. For children, support to meet these needs will be considered as part of the multi-agency planning process.

7.6.1 Section 117 commissioning panel

Funding will be reviewed and agreed on a person by person basis in line with locally agreed operational procedures.

It is important for the lead professional to distinguish within the discharge care plan, the care and support that relates to the individual’s mental disorder and meets the criteria for section 117 funding, which will be provided free of charge, and any other needs which must be met under other legislation. These will be subject to financial assessment and contribution (financial assessment and contribution is not applicable in relation to children).

7.6.2 Not eligible

Needs which are not eligible to be met under section 117 may be met under the Care Act, NHS Continuing Health Care (CHC), or the Children Act 1989. A contribution to the cost of support provided under the Care Act may be requested from the individual (not applicable in relation to children). Healthcare and support provided under section 117 is free and no contribution can be requested toward the cost of these.

7.6.3 Accommodation

Point of information, following the case law judgement, (R, Mwanza v Greenwich LBC and Bromley LBC (2010]) EWHC 1462), High Court held that accommodation is a common need for all people and therefore in order for an accommodation to be an aftercare need, it needs to meet a need that arises from an individual’s mental disorder.

Although accommodation for over 18’s can be provided under section 117 the need for accommodation must be a direct result of the reason that the individual was detained for in the first place. As a matter of law ordinary accommodation can never be a free after-care service under section 117. The courts set out three requirements which must be met for accommodation to be provided under section 117. They are:

1. the need or accommodation is a direct result of the reason that the ex-patient was detained in the first place (“the original condition”)
2. the requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition
3. the ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.” (Point of information, case law; R, Afework v Camden LBC (2013]) EWHC 1637).

In light of the above, accommodation provided under section 117 will in most cases go beyond that which can be lawfully commissioned. Individuals, over the age of 18, who are subject to section 117 aftercare are entitled to choose their preferred accommodation provided that the conditions of the Care and Support and After-care (Choice of Accommodation) Regulations 2014 are met, in situations where the Local Authority is discharging their duty under section 117(2) of the Mental Health Act).

In these situations, the individual may pay a top-up payment provided that:

• the local authority is satisfied that an individual (“the payer”) is willing and able to pay the additional cost of the preferred accommodation for the period during which the Local Authority expects to meet needs by providing or arranging for the provision of that accommodation
• the payer enters into a written agreement with the authority in which the payer agrees to pay the additional cost. (The Care and Support and After-care (Choice of Accommodation) Regulations 2014, section 3)

If at a later stage the individual is, then discharged from section 117 and meets eligibility criteria for social care services then the usual financial arrangements will apply.

7.6.4 Individuals with no recourse to public funds

In regard to individuals with no recourse to public funds (NRPF), section 117 aftercare services will be provided free of charge and will not be subject to any immigration exclusions and therefore nationality and immigration status are not factors that should affect an individual’s section 117 aftercare. However, if the individual who has NRPF does not require accommodation as a result of their mental illness or disorder, but requires accommodation because they are destitute, then the LA would need to establish whether they have a duty to provide any accommodation in line with relevant legislation.

North Lincolnshire HCP and LA agree that when an individual is detained under any of the sections of the MHA 1983 and will be eligible for section 117 aftercare services on discharge from hospital, advice and guidance will be sought. If there are any further issues, for example if the individual wants to go back to their home and there are immigration issues then advice will be sought from a legal practitioner and both organisations agree to share the costs of these services.

7.7 Ordinary residence

The duty on local authorities to commission or provide mental health aftercare rests with the local authority for the area in which the individual concerned was ordinarily resident immediately before they were detained under the Mental Health Act 1983, even if the individual becomes ordinarily resident in another area after leaving hospital (Care Act 2014, 19.43).

This is most commonly determined by reference to the GP practice with which the individual was registered, the 2022 revision of “who pays” sets out details for determining which health and care partnership is responsible for section 117 aftercare.

NHS England, who pays? (opens in new window).

The general rules for determining core responsibility between ICBs, where an individual is registered on the list of NHS patients of a GP practice, the ICB with core responsibility for the individual will be the ICB with which that GP practice is associated. Where an individual is not registered with a GP practice, the ICB with core responsibility for the individual will be the ICB in whose geographic area the individual is “usually resident”. Anyone GP practice may have some individuals registered with it who are usually resident in one ICB and others who are usually resident in another. In that situation, the responsible ICB for all of the individuals registered with that practice will be the ICB with which that practice is associated. Where an individual is registered with a GP practice which is associated with ICB, but has then been accepted as a temporary resident by a GP practice which is associated with ICB B, the individual becomes the core responsibility of ICB B for that period of temporary residence.

Details of GP practices associated with each ICB are available at GP and GP practice related data, NHS Digital (opens in new window).

For individuals who are detained under the Mental Health Act for the first time on or after 1 July 2022 (including where they are detained for the first time following discharge from section 117 aftercare provided after a previous detention), the position on commissioning responsibility will be as follows, and the same rule will also apply to payment responsibility.

• NHS England will be responsible for commissioning and payment for any period where the patient is treated by a prescribed specialised service.
• In respect of ICB-commissioned detention and aftercare services, the ICB responsible for commissioning and payment will be determined on the basis of the general rules outlined above (Who Pays, 10.2), applied at the point of the patient’s initial detention in hospital under the act (whether for assessment or treatment). This ICB will be known as the “originating ICB”.
• This originating ICB will then retain responsibility for commissioning and payment throughout the initial detention (including any period of informal admission following detention, during which the patient is no longer detained but remains in hospital voluntarily), for the whole period for which any section 117 aftercare is provided and for any subsequent repeat detentions or voluntary admissions from aftercare, until such point as the patient is finally discharged from section 117 aftercare, regardless of where the patient is treated or placed, where they live or which GP practice they are registered with.

There may be occasions where it is clinically necessary for an individual to be admitted to an acute mental health bed before it has been possible to identify the responsible commissioner. Where this happens, the provider must make every effort, without delay, to establish which commissioner is responsible for funding the individuals care, and the relevant commissioners must engage with, and support, the provider in doing this. This will help to avoid disputes and ensure that the provider is paid in a timely manner.

Recent case law, ordinary residence case (ordinary residence and section 117). DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case, GOV.UK (opens in new window).

For adults, if there is a dispute between LAs in England about where the individual was ordinarily resident immediately before being detained, this will be determined by the process set out in section 40 of the Care Act 2014.

For children, advice will be sought from the LA legal team on the relevant guidance to be applied in determining funding responsibility.

If an individual who is in receipt of aftercare under section 117 moves area voluntarily then the responsible ICB might or might not change, depending on the circumstances, but the LA does not. If the individual is readmitted under section, then upon discharge, a new determination of ordinary residence and usual residence must be made, which may change the LA or ICB responsible for funding. It is acknowledged that no necessary assessment, care or treatment should be delayed because uncertainty or ambiguity as to which NHS commissioner or local authority is responsible for funding an individual’s health or social care provision.

Recognising that ordinary residence principles are complex, if there is uncertainty please contact england.responsiblecommissioner@nhs.net.

7.7.1 Cross border individuals

Cross border issues will arise where an individual is resident in Wales or Scotland and registered with a GP in England. These cases will be addressed by North Lincolnshire HCP and LA on a case-by-case basis. The LA and HCP would in all these cases follow applicable legislation, regulations and accompanying guidance, including the NHS guidance “Who pays? Determining responsibilities for payments to providers.”

7.8 Commencement of section 117 aftercare

Before deciding to discharge or grant periods of leave or place an individual on to a community treatment order, the responsible clinician should ensure that the aftercare needs for the individual have been fully assessed and discussed with the individual and that confirmation of section 117 funding arrangements have been agreed and recorded. Any period of leave, which includes an overnight stay, will necessitate a full aftercare plan. For those people with social care needs this may require the completion of a social care assessment (children’s or adults) to determine the appropriateness of the arrangements and consider any unmet needs which require support.

7.9 First tier tribunals service, hospital managers hearings and section 117 aftercare

A mental health tribunal is an independent panel to which anyone who is detained under the mental health act, has the right to apply to, to review their detention, under the act.

Where a mental health tribunal or hospital managers Hearing has been arranged for an individual who might be entitled to aftercare under section 117 practical preparations should be in hand for aftercare in every case, but in particular should be considered where there is a strong possibility that the individual will be discharged if appropriate aftercare can be arranged. There is an expectation that a care plan will be made available to the panel which includes these arrangements should they be discharged.

Where the mental health tribunal has provisionally decided to grant a restricted individual a conditional discharge, and there are funding implications as part of this conditional discharge, the HCP and LA are required as far as possible to put in place after-care, which would allow discharge to take place.

7.10 Section 117 register

The Code of Practice (MHA 1983 (2015) paragraph 33.14 page 359) identifies the importance of keeping records of all individuals who are entitled to aftercare under section 117. An accurate register is important to use as part of the process for reviewing individual status for section 117. Please refer to operational guidance.

7.11 Review of section 117 aftercare

The North Lincolnshire section 117 review protocol will offer guidance around timeframes, attendees and documentation required for reviews. A review of the care plan or section 117 eligibility will be arranged. The review should be completed in line with the locally agreed protocol. These reviews should be recorded, and documentation should reflect either continued section 117 eligibility, or where appropriate the documented evidence should demonstrate that section 117 eligibility has ended.

If an individual is discharged from secondary mental health services but remains subject to section 117 then the locally agreed protocol for reviewing their care needs should be followed to ensure statutory responsibilities are maintained.

7.12 Individuals discharged from hospital to police custody

Section 117 entitled individuals who are discharged from hospital into police custody or prison or who go to prison from the community are still entitled to aftercare under section 117. The identified lead professional is responsible for maintaining contact with the individual and any other agencies who need to be involved, for example, community forensic team, the local authority, probation services health care wing, Youth Justice Partnership, and forensic medical examiner (FME). The aim of this contact would be to provide continuity for the individual until an agreement is reached with the Prison in reach team for handover. This would usually be at a point when the in reach team have developed a relationship with the individual, generally no longer than 3 months. If the individual is sentenced before the 3-month period, then the in reach team should take over the care coordination.

7.13 Individuals transferred to out of area placements

There are occasions where individuals subject to section 117 will be placed out of area to receive appropriate services. In these circumstances, the section 117 eligibility will remain with the placing LA and, or HCP and any such placement can only be made by following the usual processes of the HCP and local authority for support plan approval and agreement to fund. If the individuals assessed needs increase and require additional services it is the responsibility of the placing LA and, or HCP to renegotiate the appropriate care package for that individual including additional funding authorisation, where appropriate from the funding panel. If the individual moves to another LA area and becomes resident in that area, then section 117 eligibility remains with the originating LA and HCP until such time as section 117 is no longer required.

7.14 Section 117 and children’s placements

Whilst it is acknowledged that entitlement to section 117 aftercare for children and adults is the same, additional consideration may be required when implementing section 117 aftercare outside the family home for individuals aged 18 or under. Children who are cared for away from their family are entitled to additional safeguards, and any care arrangements may require regulation in line with statutory regulations and guidance. However, each case should be considered on its each unique circumstances.

7.15 Section 117 and CHC and NHS funded nursing care

Continuing health care (CHC) and NHS funded nursing care (FNC) are freestanding duties that are distinct from the HCPs general obligation to provide health services. In order to aid the assessment process, the care plan should clearly distinguish those needs associated with the individual’s mental health (section 117 provision) and those which are not (non section 117 provision).

7.16 Ending section 117

Aftercare entitlement Aftercare provision does not have to continue indefinitely. It must continue until such time as the HCP and LA are satisfied that the individual is no longer in need of such services. The duty to provide aftercare services under section 117 exists until the LA and the HCP, are satisfied that the individual no longer requires them. Circumstances in which it is appropriate to end such services vary by individual and the nature of the services provided. Fully involving the individual and (if indicated) their carer and, or advocate in the decision-making process will play an important part in the successful ending of after-care (MHA Code of Practice 2015, 33.20).

Ongoing services provided may still be required to prevent deterioration in the individuals’ mental health. Services should not therefore be withdrawn on the basis that:

• the individual has been discharged from the care of specialist mental health services
• an arbitrary period has passed since the care was first provided
• the individual is deprived of their liberty under the Mental Capacity Act 2005
• the individual is re-admitted to hospital informally or under section 2 MHA
• the individual is no longer on community treatment order or section 17 leave

Any recommendation to discharge partly or wholly from section 117 aftercare resulting from consideration of the above must be agreed by the Care team and responsible clinician on behalf of both North Lincolnshire HCP and LA. If the MDT decide that aftercare is no longer required and that its removal will not put the individual at risk of readmission to hospital, a decision to discharge the individual from section 117 aftercare arrangements should be considered, and action taken where this is found to be substantiated. However, any such decision must be fully justified and preceded by a proper reassessment of the individual’s needs.

Where consideration is being given to discharging an individual from section 117 of the MHA 1983 aftercare entitlement the following actions should take place:

• a review meeting will be held in line with CPA or the locally agreed alternative process for example child in need, which will review the individual’s needs and the care required to meet those needs
• consultation with the individual
• consultation (where appropriate) with any carer(s), professionals or key others involved in the individual’s life
• the care co-ordinator completes a “discharge from section 117” form

If a full discharge is warranted, then the section 117 discharge form must be completed and this will go to panel, where both the HCP and the LA must agree that the individual’s mental health has improved to a point where they no longer need services to meet needs arising from or related to their mental disorder. Staff who have authority to make a commitment on behalf of the LA and HCP will sign the section 117 discharge notice to confirm discharge. The Lead professional is responsible for ensuring that all relevant people are notified of this decision. The discharge form must contain a clear explanation of how the decision was reached that the individual is no longer entitled to section 117 MHA 1983 after-care.

When discussing discharge, the individual, and their parent or carer (if a child) must be informed that should they continue to require services after section 117 entitlement has ended, then they could be means tested and have to pay for services in the future. The individual may refuse to agree to discharge from section 117, which could lead to legal challenge. It would be the responsibility of each authority to seek legal advice on whether to continue with discharge in these circumstances.

After care services may be reinstated within 7 working days if it becomes obvious that they have been withdrawn prematurely, for example, where an individual’s mental condition begins to deteriorate immediately after services are withdrawn (MHA Code of Practice 2015, 33.22). These decisions would be made via panel.

Where the individual refuses to accept section 117 after-care services, consideration needs to be given to proactive engagement to encourage take up of support services. Where the individual continues to refuse services, this should be formally submitted to panel and section 117 eligibility should be reviewed regularly until such time as the individual no longer requires section 117 after-care. This could be enhanced by VARM (vulnerable adult risk management) if the risk of refusing services outweighs the individual’s right to refuse them.

Individuals are under no obligation to accept the aftercare services they are offered but any decisions they may make to decline them should be fully informed. An unwillingness to accept services does not mean they have no need to receive services, nor should it preclude them from receiving them under section 117 should they change their minds. (MHA Code of Practice 2015, 33.24).

8 Statutory advocacy

There are 3 types of statutory advocacy relevant to this policy.

8.1 Mental Health Act

As of 2009 Independent mental health advocate (IMHAs) have been available as a statutory right to people under certain aspects of the MHA 1983 as amended.

Individuals are eligible to use IMHA services if they are:

• detained in hospital under the MHA 1983 as amended (excluding people detained under certain short-term sections)
• conditionally discharged from hospital with restrictions
• subject to guardianship order
• subject to CTOs

The role of an IMHA is to assist eligible individuals to understand the legal provisions to which they are subject under the Mental Health Act 1983 and the rights and safeguards to which they are entitled. IMHAs will support individuals to inform them of their rights under the Mental Health Act and any aspect of their care or treatment under compulsion. This would include information about their rights under section 117, and also their aftercare care planning and package of care. IMHAs also support those eligible to participate in decision-making.

8.2 Mental Capacity Act

Under the Mental Capacity Act 2005, there is a legal duty to refer an individual to the independent mental capacity advocate (IMCA) service, under prescribed circumstances, unless they have lasting power of attorney which covers an ability to make health and welfare related decisions on the individual’s behalf.

“The prescribed circumstances are:

• providing, withholding or stopping serious medical treatment
• moving an individual into long-term care in hospital or a care home
• moving the individual to a different hospital or care home.

The only exception to this can be in situations where an urgent decision is needed.” (Mental Capacity Act 2005 Code of Practice 10.3)

The Mental Capacity Act only applies where the individual is over 16 years of age.

8.3 The Care Act

The Care Act (2014), section 67 also makes statutory provision for independent advocacy, where an individual has no other appropriate individual to represent and support them. This provision applies where it appears to the local authority that without this, the individual would experience significant difficulty in understanding, retaining, using or weighing information or in communicating their views and wishes whilst the local authority is carrying out prescribed functions in the Care Act around assessment or care and support planning. This only applies where an individual is over 18 years of age or planning for support post 18 years

9 Glossary of terms

10 Relevant documents

• Mental Capacity Act (2005) and Code of Practice (opens in new window).
• Mental Health Act Code of practice (opens in new window).
• NHS England ‘Who pays? Determining responsibility for payments to providers’ (2013) (opens in new window).
• The National Framework for NHS continuing healthcare and NHS-funded nursing care, (2012) (revised) (opens in new window).
• The National Health service commissioning board and clinical commissioning groups (responsibilities and standing rules) Regulations (2012) (opens in new window).
• The Care Act (2014) (opens in new window).

Further reading:

• Mental health law (opens in new window)
• Homeless Link (2016) Supporting people with no recourse to public funds (opens in new window).

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Document control

• Approved by: Approved within integrated strategic planning and commissioning executive (ISPACE) on 1 August 2023.
• Date approved: 1 August 2023.
• Review date: 1 August 2024.

Page last reviewed: November 15, 2024
Next review due: November 15, 2025

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