After-care under Section 117 of the Mental Health Act 1983
| Author | Michael Butler |
| Pages | 185-196 |
Part Six
After-care
Chapter 19
After-care under Section 117 of the Mental Health Act 1983
19.1 INTRODUCTION
A patient who leaves hospital following detention for treatment under the MHA 1983 has the advantage of a statutory entitlement, free of charge, to certain health and social care services in the community, something which distinguishes him from other mental health service users. The entitlement is created by section 117 and is referred to as ‘after-care’. The extent of this entitlement is considered in this chapter.
19.2 ELIGIBLE PATIENTS
After-care is available for any patient who has been detained for treatment under the MHA 1983 (section 117(1)), that is anyone:
(1) … detained under section 3 above, or admitted to a hospital in pursuance of a hospital order under section 37 above, or transferred to a hospital in pursuance of a hospital direction under section 45A above or a transfer direction made under section 47 or 48 above ….
The entitlement arises whether or not the patient is restricted.
The patients for whom an entitlement to after-care will not arise are those detained under sections 2, 4, 5, 35, 36, 38, 135 and 136 of the MHA 1983.
19.3 HEALTH AND SOCIAL CARE
After-care covers both health and social care needs, and the duty to arrange its provision therefore falls on local health and local social services authorities (section 117(2) of the MHA 1983), who should have jointly agreed protocols in
188 A Practitioner’s Guide to Mental Health Law
place identifying which authority will have responsibility for funding which services (Health Service Circular and Local Authority Circular (HSC 2000/003: LAC (2000) 3)).
While the burden to provide after-care under section 117(2) of the MHA 1983 falls on both CCGs and LSSAs, the burden on LSSAs also comes from an additional statutory source, section 47(1) of the National Health Service and Community Care Act 1990 (NHSCCA 1990), which requires a local authority to carry out an assessment of the need for ‘community care services’ of any person who it appears may be in need of such services. For these purposes, ‘community care services’ is defined to include after-care services provided under section 117 of the MHA 1983.
19.4 DECIDING WHAT CONSTITUTES AN AFTER-CARE SERVICE (SEE ALSO APPENDIX 12)
There remains no statutory definition of the term ‘after-care’, and uncertainty continues as to the extent of its scope. Which services fall within its definition and which do not? What are its limits? Guidance is neither extensive, nor particularly helpful. What seems relatively clear, however, is that an after-care service is one which meets a health care or social care need, aims to keep the patient well, and is designed to help a patient avoid re-admission to hospital in the future.
The 1983 Code (para 27.5) is particularly vague and offers little assistance other than to confirm that, ‘as well as meeting [a patient’s] 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’.
Courts, too, have generally avoided being prescriptive about how the term is defined. In R v London Borough of Richmond ex parte W [1999] 1 MHLR 149, for example, Sullivan J suggested that, ‘it would seem sensible to confer a considerable degree of discretion upon health authorities and local authorities having to provide after-care services in situations that are bound to be particularly problematic and demanding’. He did suggest, however, that the precise extent of the duty in any particular case ‘will be defined by the local authority’s assessment of a person’s needs under Section 47(1)(a) of the 1990 Act’ (see para 19.11.2).
In Clunis v Camden & Islington Health Authority [1998] 3 All ER 180, Beldon LJ said that, ‘social work, support in helping the patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities’ were the type of services that would fall within the definition.
In R v Manchester City Council ex parte Stennett and Others [2002] UKHL 34, the House of Lords provided a little more clarity by confirming that, ‘caring residential accommodation’ also came within after-care’s scope.
Although the aim is to keep the patient’s mental health stable so as to avoid the need for re-admission to hospital, it seems increasingly clear that the term cannot be defined so as to create a right to any service which may prevent a deterioration in a person’s mental health, and is instead restricted to those services which address a need deriving from, or related to, a person’s mental disorder. This was confirmed in R (on the application of Mwanza) v London Boroughs of Greenwich and Bromley [2010] EWHC 1462 (Admin), where it was held that although homelessness might provoke a deterioration in a patient’s mental health, that would not be enough to bring the provision of accommodation within the scope of after-care services. The need for accommodation is a common one and does not arise from mental disorder. It would be different, of course, if the accommodation in question was specifically designed to meet needs arising from mental disorder.
In the same spirit, Mostyn J, in R (on the application of Afework) v London Borough of Camden [2013] EWHC 1637...
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