Aftercare under Section 117 of the Mental Health Act 1983

1. The Duty to Provide Aftercare Services

Section 117 of the Mental Health Act 1983 requires Integrated Care Boards (ICBs) (previously Clinical Commissioning Groups ('CCGs')) 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.

2. Ordinary Residence

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 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.

3. Funding

Councils and ICBs have a joint duty to provide or arrange free aftercare for eligible service users. This does not necessarily mean the cost of these services will be shared equally between a council and ICB. The allocation of costs will depend on the specific aftercare services the person needs. To ensure an eligible person receives the free aftercare services they need, it is important to establish which council and ICB hold the statutory duty for that person.

The responsible local council is the one in which the person was ‘ordinarily resident’ immediately before they were detained under the Mental Health Act – see Section 2, Ordinary Residence above.

Who Pays? sets out the framework for establishing which NHS commissioner will be responsible for commissioning and paying for an individual’s NHS care.

4. After-care Planning and Assessment

4.1 After-care Planning

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.

4.2 After-care Planning Assessment

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;
Legal representative/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.

4.3 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 clearly record whether the person is entitled to Section 117 aftercare and, if so, explain which care services will be funded under this section. The local authority and ICB providing the Section 117 funding should also maintain a record of what aftercare services they are providing to whom.

4.4 Reviewing the After-care Plan

The After-care Plan should be regularly reviewed. Eligibility for Section 117 should be reviewed within six weeks of discharge from inpatient services, then annually thereafter, or sooner if circumstances change.

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.

5. Personal Health Budgets and Direct Payments

People eligible for Section 117 aftercare have a legal right to request a personal health budget (PHB). This is a sum of money the person can use to meet their identified Section 117 aftercare needs.

ICBs have a duty to publicise the availability of PHBs. They must also provide guidance, advice and support to eligible people to assist them in deciding whether to request a PHB. ICBs must give consideration to a request made by, or on behalf of, an eligible person for a PHB. A PHB is planned and agreed between the person and the responsible ICB. A PHB may be considered as part of the discharge planning process, when assessing the person's Section 117 aftercare needs during their hospital admission. It may also be considered during any subsequent review of the person's aftercare in the community.

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.

6. Accommodation as a Section 117 Need

When someone needs residential care or specialist accommodation, this is only eligible for Section 117 aftercare if it meets a need related to their mental health condition. The person's CPA After-care Plan should set out what type of accommodation would meet a need related to their mental health condition. Where the person lives in specialist accommodation as part of their Section 117 aftercare arrangements, the council and/or ICB should pay for this. The person should not be expected to claim housing benefit. People can exercise choice about their preferred accommodation. However, they may need to pay a top-up payment if their preferred accommodation costs more than the council and/or ICB would otherwise have needed to pay.

7. Ending After-care

The duty to provide aftercare services exists until both the local authority and the ICB 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.

Aftercare should not be withdrawn solely because:

The person has been discharged by a psychiatrist or specialist mental health service;
An arbitrary period has passed since aftercare was started;
The person is deprived of their liberty under the Mental Capacity Act 2005;
The person has returned to hospital informally or under Section 2 of the Mental Health Act (when the person is detained for a brief time for assessment);
The person is no longer on a Community Treatment Order (CTO) or on Section 17 leave from hospital.

Even when a person is well-settled in the community they may continue to need aftercare services, for example, to prevent their condition deteriorating. If accommodation were included as part of a patient's aftercare, arrangements for new accommodation would need to be made.

If someone lives in specialist accommodation that previously met their aftercare needs, the council and ICB must arrange to move that person to more appropriate accommodation before ending their Section 117 aftercare.

The young person and their carer/advocate if applicable, should be fully involved in the process of ending their aftercare.

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.

Councils and ICBs should keep a record of when a patient has been formally discharged from Section 117.

Appendix 1: Key Messages from Ombudsman Investigations

(From Section 117 Aftercare: Guidance for Practitioners (Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman).

Councils and ICBs must ensure everyone who is entitled to Section 117 aftercare receives a robust assessment of their mental health needs arising from, or related to, the person’s mental health condition;
Everyone entitled to Section 117 should have their care needs assessed in line with the CPA framework. Care should be planned in line with the outcome of that assessment, which in most cases will mean care should be provided under CPA;
Care and support plans should clearly state what services will meet needs arising from the person’s mental health condition under Section 117. The support should ensure it reduces the chance of them being detained under the Mental Health Act;
The care plan should be recorded in writing and a copy shared with the person and any other relevant parties;
Councils and ICBs must not delay arranging Section 117 aftercare. Planning for Section 117 aftercare should start as soon as the person is admitted to hospital;
Care and support plans should be regularly reviewed. Reviews should include the person and other relevant parties;
People should not be paying for services which meet their mental health needs under Section 117, including specialist accommodation;
The decision to discharge someone from Section 117 should be a joint one (by the council and the ICB);
The council and ICB should fully involve the person when they decide to end that person’s Section 117 aftercare;
Organisations should have clear joint working arrangements around Section 117. This should include clearly defined roles about who will commission and/or provide Section 117.

Further Information

Legislation, Statutory and Government Non-Statutory Guidance

Mental Health Act 1983: Code of Practice Chapter 33 After-care and Chapter 34 Care Programme Approach

Good Practice Guidance

Section 117 Aftercare: Guidance for Practitioners (Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman)

Who Pays?

Self-harm: Assessment, Management and Preventing Recurrence NICE Guidance