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) 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 is a Treatment Order authorising a person to be compulsorily detained in hospital and for treatment to be administered to them without their consent. It can only be used following a Mental Health Act assessment (Section 2 Order under the Mental Health Act). A person can be detained under Section 3 for up to 6 months, with the option for further renewals if required;
• 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 courts a power to direct that a person convicted of an offence can be detained in hospital instead of being detained in prison;
• Section 47 authorises the Secretary of State to direct that a person serving a prison sentence can 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 can 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. Aftercare should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital.

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:

1. A duty under section 117(2) to provide aftercare 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);
2. 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;
3. 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.

3. Funding

Councils and ICBs have a joint duty to provide or arrange free aftercare for eligible young people. There will often be a joint package of care commissioned, but 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.

For further information, please refer to the Statutory Guidance: Discharge from Mental Health Inpatient Settings.

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

Local authorities and ICBs should each maintain a record of people for whom they provide or commission aftercare and what aftercare services are provided.

4. Aftercare Planning and Assessment

4.1 Aftercare 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 aftercare services for young people in good time for their eventual discharge from hospital.

4.2 Aftercare Planning Assessment

Aftercare 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 aftercare planning for young people with autistic spectrum disorders or learning disabilities.

Aftercare 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 Aftercare 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 (as defined in Section 26 Mental Health Act 1983) or other carers;
• A representative of any relevant voluntary organisations;
• Multi-Agency Public Protection Arrangements (MAPPA) co-ordinator if applicable;
• National Probation Service if applicable;
• A representative of housing authorities if ordinary 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;
• 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.

Where it is established that the person requires assistance to access their welfare rights (benefits), it should be clear in the Aftercare Plan who is going to be responsible for providing this assistance both prior to discharge and on any ongoing basis. This will avoid any confusion for the young person and their family to ensure that they receive the benefits they are entitled to in a timely way.

It may be 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 so and 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 aftercare plan.

4.3 The Aftercare Plan

It should be clearly recorded on the final Aftercare Plan:

1. That the child or young person is eligible for Section 117 aftercare and the basis for this determination;
2. Which services are to be provided as part of Section 117 aftercare;
3. Who the named practitioner is (who has overall responsibility for co-ordinating the preparation, implementation and evaluation of the Plan).

Included within the Aftercare 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 (both formal and informal);
• 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.

Aftercare 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.

4.4 Reviewing the Aftercare Plan

The Aftercare 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 named practitioner/agency to arrange reviews of the Plan until it is agreed between all parties, including the young person, that aftercare services are no longer needed.

The Aftercare Plan will need to be reviewed if the young person moves to another area. The named practitioner 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 due 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 aftercare 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: Personal Budgets and Direct Payments Procedure.

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 Aftercare Plan should set out what type of accommodation the person requires and whether this is 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 meet the costs of this placement.

The person should not be expected to claim housing benefit.

People can exercise choice about their preferred accommodation.

7. Ending Aftercare

The duty to provide aftercare services exists until both the local authority and the ICB are satisfied that the aftercare services are no longer needed. The usual reason for this is that the young person’s mental health has improved.

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 short 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 was included as part of a patient's aftercare, arrangements for new accommodation would need to be made.

If someone lives in residential or other specialist accommodation that was required to meet 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.

Aftercare 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 and why 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 (now the Community Mental Health 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 (now the Community Mental Health Framework);
• 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 and Guidance

Legislation, Statutory and Government Non-Statutory Guidance

Mental Health Act 1983: Code of Practice Chapter 33 Aftercare

Statutory Guidance: Discharge from Mental Health Inpatient Settings

The Community Mental Health Framework (CMHF) has replaced the Care Programme Approach (CPA) as the framework for delivering effective community mental health services in England.

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