Tuesday, 6 December 2011

Section 117 Aftercare: What You Didn’t Know You Didn’t Know

Blog Reader: I say, Masked AMHP, are you there?

Masked AMHP: Who’s that? Oh, hello there, Blog Reader. How can I be of service?

BR: I’d like to ask you a few questions about Sec.117 Aftercare, if you don’t mind.

MA: Oh dear… Actually, I’m really rather busy preparing my special Christmas post. Can you come back another time?

BR: But it’s stuff I really need to know… This friend of mine, you see, has been detained under Sec.3 and they’re having a meeting to discuss aftercare… They’re talking about putting him in some sort of a care home…

MA: (Sighs) OK, then, fire away.

BR: Let’s begin with basics, then. What exactly is Sec.117 of the Mental Health Act 1983?

MA: Sec.117 applies to anyone who has been detained under Sec.3 or Sec.37. There are a couple of other forensic sections, but they’re pretty rare, so I won’t confuse you with them. Sec.117(2) states: “It shall be the duty of the Primary Care Trust… and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies.” It’s a pretty significant section, in that it introduced a legal requirement for Mental Health services and local authorities to make sure that people who had been detained under the MHA for treatment were given the help they needed on discharge to keep them out of hospital, rather than just being dumped back into the community with no support.

BR: So, what are these meetings all about, then?

MA: The Code of Practice says: “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. (27.5)” Before anyone detained under the relevant sections is discharged from hospital, there has to be a meeting involving any relevant professionals or others, including the patient, relatives, and carers. There’s an extensive list in the Code of Practice as to what should be considered (27.13). These include: the psychological needs of the patient, as well as their family and carers; their physical healthcare; daytime activities or employment; appropriate accommodation; identified risks and safety issues; social, cultural or spiritual needs; assistance in welfare rights and managing finances; contingency plans and crisis contact details. There are many other things to be considered as well. Once the patient is discharged, there have to be regular reviews in the community.

BR: And what exactly is an aftercare need?

MA: Aftercare itself is not defined in the MHA. It’s very broad. However, some case law has given guidance as to what should be included (Clunis v Camden and Islington Health Authority (1994)). It would certainly include social care provision, support in helping with employment, accommodation or family relationships, the provision of domiciliary services and day centre and residential facilities.

BR: Is there a time limit, like with other sections?

MA: No, there isn’t. The requirement to provide S117 aftercare will continue indefinitely, in practice until the Consultant Psychiatrist and a representative of the local authority, eg a social worker, “are satisfied that the person concerned is no longer in need of such services”. The Code of Practice helpfully states: “The most clear-cut circumstance in which after-care will end is where the person’s mental health has improved to a point where they no longer need services because of their mental disorder. But if these services include, for example, care in a specialist residential setting, the arrangements for their move to more appropriate accommodation will need to be in place before support under section 117 is finally withdrawn” (27.19) However: “Even when the provision of after-care has been successful in that the patient is now well settled in the community, the patient may still continue to need after-care services, for example to prevent a relapse or further deterioration in their condition.”( 27.21)

BR: Mmmm. And what’s this all going to cost?

MA: Aah! I’m glad you asked me that. The MHA Reference Guide observes: “Because the Act provides no power to charge anyone for after-care services provided under section 117, they must be provided free of charge.” (24.18)

BR: So if something is part of the S117 aftercare plan, the patient gets it entirely free? My friend wouldn’t have to pay anything for this home they’re thinking about?

MA: That’s exactly right! And that’s where it all begins to get a bit complicated and messy.

BR: What do you mean?

MA: Aftercare can be very expensive, especially if someone is in a residential or nursing care home. Some of these places can literally cost thousands of pounds a week! And regardless of the personal income of the patient, the local authority can’t get back a penny! So some local authorities have tried to wriggle out of their responsibilities under S117.

BR: Local authorities wouldn’t try to do that, surely?

MA: Are you really that naïve?

BR: No, actually, I’m being sarcastic.

MA: That’s all right, then. Local authorities have tried a number of cunning ruses over the years. But they’ve often come a cropper. There have been a number of cases referred to the Ombudsman over the years in which local authorities have been hammered.

BR: Local authorities getting hammered? Please tell me more!

MA: Well, let’s see… York City Council was found guilty of maladministration after it persuaded an elderly lady detained under Sec.3 to make her own residential care arrangements at her own expense by threatening that if she went through the normal procedure for getting a residential placement she’d have to languish in hospital for a year. She therefore agreed to waive her entitlement to the funding of her aftercare under S117.

BR: What happened to the council?

MA: They had to pay her for the costs she had incurred for her care. Then there was Bath and North East Somerset Council. This was another old lady with dementia, detained under Sec.3. She was placed in a residential care home as part of her aftercare pan, which was paid for by the Council under S117. After about 2½ years they tried to discharge her from S117 aftercare on the basis that she no longer needed residential care, was settled in her care home, and was not at risk of being readmitted to hospital. The Ombudsman again found maladministration, on the basis that whether a person was settled in a residential placement or not was an “irrelevant consideration”. It was stated that “these defective criteria fatally flawed the decision that Mrs Fletcher was no longer at risk of readmission to hospital.”

BR: Any more dirt to dish?

MA: Why, yes! Poole Borough Council were found guilty of maladministration for failing to carry out a proper assessment of a woman’s mental health needs to establish that section 117 aftercare was no longer required. It also failed to hold a multi-disciplinary meeting with the relevant professionals, the patient and her carer or nearest relative to review the care plan. In all these cases the local authority had to reimburse the patient or their families tens of thousands of pounds. And there have been others, generally around the local authority spuriously deciding to discharge someone from S117 when in fact they are still receiving aftercare.

BR: Phew! So local authorities must be much more conscientious about keeping to the rules now.

MA: I think you’re having a little laugh, aren’t you? Some local authorities are trying a new tack. They’re trying to distinguish between chargeable services, under Sec.21 of the National Assistance Act 1948, and S117 aftercare services, which they can’t charge for.

BR: And what exactly is Sec.21 of the National Assistance Act 1948?

MA: That’s where residential care is provided outside of the MHA for such things as frailty or physical disability. I’ll give you a little scenario. Edna Wilby is 85. She has lived in a care home for 3 years, having been admitted there after she had a fall at home and broke her hip, and was no longer able to manage in her own home. She has been contributing to the cost of her care based on her personal retirement income and savings. Over time, she becomes increasingly demented, and is eventually assessed under the MHA after she assaults a member of the care staff. She is detained under Sec.2 MHA for assessment and admitted to a psychogeriatric ward. She is subsequently detained under Sec.3. She improves with treatment and they hold a S117 aftercare planning meeting at which it is decided that she is able to return to the care home in which she had been living for the last 3 years. She will be followed up by the psychogeriatrician in Outpatients, and a psychiatric nurse from the community team will advise the home on management of her dementia. So, does she have to pay or not?

BR: Well, if the plan to return to the care home is part of the aftercare plan, she shouldn’t have to pay, should she?

MA: You’d think so, wouldn’t you? But some local authorities would argue that the care she is receiving in the care home is not for her mental disorder, but for her physical frailty, which she has been receiving, and paying for, under Sec.21 of the National Assistance Act 1948. They would say that the aftercare covered by S117 was only the outpatient appointments and involvement of a community psychiatric nurse.

BR: Very cunning. Do you think they’d get away with it?

MA: We’ll have to see what the Ombudsman thinks about it, if it’s ever challenged.

BR: Thank you, Masked AMHP. You’ve been very helpful. I’ll be off now.

MA: Wouldn’t you like to hear about the ructions that occur when local authorities can’t agree about who should pay for aftercare?

BR: Er, another time, Masked AMHP, another time.

48 comments:

  1. I was present at an MHA assessment for an elderly man with dementia. Sec 3 was decided upon (although it's aguable whether actually his needs could have been met using the Mental Capacity Act to admit him to a care home). My cynical self wondered whether the son's enthusiam for Sec. 3 was based on the knowledge that his father would never have to pay for his subsequent residential care under Sec 117.....

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  2. Fantastic post. In my own experience of situations like the one anonymous mentions is that families I've been involved in rarely have any knowledge of the s117 provisions but ultimately, of course, if the person meets the criteria for s3 it isn't going to be the decision of the NR that sways between 2 and 3 but rather the cirumstances.
    As for myself, I suspect the end of 117 is on the cards.. many anomalies.

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  3. Section 117. I am an advocate for a person with a learning disability. Currently on Section 117.

    Under Section 117 can you tell me if the care provider/local authority is responsible for paying the expenses of a care provider in the community e.g. taxis, coffee, cinema tickets. This person is blind and some physical disabilities as well as serious neurology issues.

    The point is that the person currently does pay for the service provider out of their own pocket (benefits) for same. Does this contravene the code of Practice on S117 ......"purpose is to equip people to cope with life outside hospital and function there successfully without danger to themselves or other people...."

    " L.A. are not entitled to charge service users for any after care services under S117"

    Without the support of a carer in the community this person could not "cope with life" Could not "function"........."there successfully without danger to themselves or other people"

    Your comments appreciated

    Could it not be said that

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  4. The crucial issue is whether the need specifically arises from the mental health problem for which he was detained under Sec.3, or whether the need relates to a separate and underlying precondition. It could be that the local authority regard the services being provided as meeting his physical disability needs, and are not therefore an "aftercare" need. As the advocate, you could put this to the LA, as to what they regard as an aftercare need, and what they regard as a non aftercare need. There should be a written S.117 Aftercare plan which should identify the aftercare needs -- although there may not be. As the advocate, you should be invlved in those aftercare meetings, which are supposed to take place at least 6 monthly. If there have not been any formal S117 aftercare meetings, you can challenge this and demand that a formal review is held.

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  5. I got a letter offering me an appointment recently, which i was told was 117 related - having heard nothing for 3 years from anyone them, having last been sectioned 6 years ago. Needless to say, as life is better (not perfect) without my psychiatrist (who failed to acknowledge an eating disorder which left me with a BMI of 13) i declined! After no contact for 3 years i was just slightly shocked by the letter.

    Catching up on a years worth of your blog posts that have built up in outlook :)

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  6. Hi Susie, that's quite a few posts to catch up on! Some Trusts and LA's have been realising that they've let S.117 aftercare reviews lapse, and have been trying to rectify this. You can't legally discharge someone from S.117 unless the Responsible Clinician (Consultant) and a representative of the local authority (a social worker) have fomrally concluded that S.117 aftercare is no longer required.

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  7. My Son has been sectioned several times however 3 years ago he was released with section 117 after care in place to supported housing.
    he has been admitted to hospital every year since then for periods of 5 - 6 months not sectioned
    I have just found out the Local Authority will only pay 78 a week towards his living costs leaving a shortfall of 70 a week. I have asked them why they have said because somebody gets carers allowence for him he does not get severe disabled premim therfore not disabled

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    1. They are right to say that he is not entitled to a severe disability premium to his ESA if someone is receiving Carer's allowance to care for him. It does not of course follow that he is not therefore diabled -- after all he is getting DLA. I assume you are talking about a Housing Benefit shortfall. I do not know his exact circumstances, but I would have thought that his housing costs should be met by the Council. If the shortfall is due to the cost of domiciliary support, then I would have thought this should be made up by S.117 aftercare if it is part of his aftercare package. You may need to get advice from the CAB.

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  8. Thanks for a very good article. I don't know whether you cover the recent caselaw on this elsewhere but I was wondering whether, since you take a slightly cynical view of LA intentions, you could clarify the situation in relation to 117 aftercare and accommodation; particularly in light of the TA vs London, Camden (2013). I am writing a 117 operational policy and want to get it absolutely right, particularly in this area.

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  9. This comment has been removed by a blog administrator.

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  10. If someone is in a psychiatric unit having had to hand in their notice on their care home of 14 years in Aug 2012, are they classed as NFA? And, if they have been detained under sec 3 since 11/01/13, who would be the funding authority if a placement was identified in another LSSA?

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    1. They may be NFA, but they would be NFA in the LSSA where the hospital was, if they were detained after having been an informal patient. The LSSA who detained the patient would be responsible for S117 aftercare, even if placed out of area.

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  11. If someone is being discharged into a residential care home on a 117 and the reason for the care home being their mental health; is it he local authority or the NHS that is responsible for funding the placement?

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    1. As this is regarded as social care, then the LSSA will be responsible for funding.

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    2. Thank you, I appreciate your time taken to reply

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  12. Only found been given a fact sheet today concerning a s117 for my mum. This blog has been very helpful to understand the politics to come in the future. THANK YOU

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  13. Can you provide any information on the law in Scotland?
    My mother has been 'sectioned' under the mental health act. There is to be a tribunal next week in which the are applying for a detention order for up to 6 months for assessment. If she is transferred to a care home who is responsible for funding her aftercare?

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  14. why is section 117 not considered for patient in section 2 or voluntary patient

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    1. It's simply the law. A patient at some point has to have been detained under Sec.3 to qualify for S.117 aftercare. An informal patient, or one detained under Sec.2, would be entitled, if they had at some time been detained under Sec.3.

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  15. If someone is being discharged into a residential care home on a 117 and the reason for the care home being their mental health; is it he local authority or the NHS that is responsible for funding the placement?

    ReplyDelete
    RepliesThe Masked AMHP24 September 2013 16:45
    As this is regarded as social care, then the LSSA will be responsible for funding.

    As S117 is a joint responsibiluity and is a standalone piece of legislation and not a gateway to other legislation (e.g. NAA), why would a LSSA be deemed responsible as opposed to a joint funded package with health (ccg).

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    1. The LSSA is responsible for social care, while the NHS/CCG is responsible for nursing/health care. If someone subject to S.117 was placed in a "care" home, providing social care, then the LSSA is responsible. If the person was placed in a nursing home, then the NHS is responsible for the nursing element of care. If the person is eligible for "continuing care", then the NHS is responsible, whether the person is subject to S.117 or not.

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  16. My father in law is currently in a secure mental unit with dementia with extreme aggressive tendencies and is under section 3. Social services have identified 3 carehomes 2 of which, after inspection by family, cannot meet his needs, with both his aggressive behaviour and his constant attempts at escape. The one home that can cope has been rejected as too expensive (why were we given it as an option in the first place) and we have been told he will be discharged and be moved into one of the unsuitable homes. Where do we stand?

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    1. I'm afraid it is for the local authority to determine the appropriate accommodation for someone subject to S.117. If the family chose a different care home, the local authority could decide that they wouldn't pay for it. But it would be perverse of the local authority to place someone in accommodation that did not meet their needs and would be bound to fail. Your father in law could have an IMHA (an independent mental health advocate), who might be able to advocate for him. Althernatively, you could involve a solicitor on behalf of your father in law to get invlved in after care decisions. The family should be involved in aftercare planning decisions, and legitimate concerns should be heard at a S.117 aftercare meeting.

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  17. Can someone help.. if a s117 is applied can a person be assessed under the Care Act 2014 for assessment?

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    1. Being subject to s.117 should make no difference to their entitlement to an assessment under the Care Act. The only difference would be that they would not be chargeable for any identified services.

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  18. If a s117 patient was discharged by the psychiatrist back to their GP on psychiatric medication, can the CCG and the LA discharge the s117? Or would medication for mental disorder by itself constitute a s117 aftercare service?

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  19. If a patient in Scotland is subject to compulsion in the community and then transferred to England under the relevant regulations he is treated as if the CTO started on date of arrival in England. Does Section 117 aftercare apply and if so who has responsibility?

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  20. I can only really tell you about transfers from England/Wales to Scotland under the MHA 1983. However, I imagine that since a CTO can only be made on someone subject to Sec.3 MHA detention, then it is implied that there is in existence an underlying Sec.3, therefore Sec.117 aftercare would apply. Under the English/Welsh Care Act, responsibility lies with the area in which the patient was living at the time he was detained under Sec.3, but I've no idea if thee are reciprocal arrangements with Scotland.

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  21. Hello Masked AMHP,

    First of all, this blog is wonderful, thank you for sharing your knowledge and experience.

    I'm a social worker and have been given a case where my client has a significant psychiatric history (although my team are working with him for different reasons).

    He has moved around several local authorities throughout his life. He believes that he has been detained under section in the past. I have his medical records, but they don't include this information. I've tried contacting the LA where he lived most recently, but they couldn't trace him.

    I'm a bit stumped as to how to find out whether he was ever detained under S3 and is therefore entitled to S117. Do you have any suggestions?

    Thank you in advance for your help.

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  22. If there's nothing in his GP medical records, then he may never have been detained. Itinerant patients who are detained are usually tracked down by their NHS number and letters etc should eventually end up in their GP records.

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    1. Thank you, much appreciated.

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  23. hi my son is on a 117 aftercare under guardianship is he expected to pay the entrance fees when a carer takes him out

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    1. Sec.117 aftercare would cover such things as residential care, day care in a day care facility, etc if it was part of his rehabilitation/care needs. But things like cinema entry fees, the cost of a carer to take him would be covered, but he would be expected to pay for his own entry.

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  24. Hello

    Thanks for a great blog. I want to ask you about a situation - lets say an elderly man (my father in law) is detained under section 2, and then under section 3, and so qualifies for aftercare under s.117, does he have any entitlement to move to a new area when he is discharged from hospital? And separately, does he have the right to choose a better care/nursing home than the social services or NHS would have chosen for him and pay the "extra" costs of this from his own funds? My father in law is currently on the verge of being sectioned I think but he lives a long way away from us and we would want him to be in a care/nursing home near to us and of good quality when and if this happens. Also we would not want him to have to first of all go into a basic provision then be moved later i.e. that this could all be worked out in advance if possible. Your advice would be very much appreciated.

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    1. Anyone detained under Sec.3 will be entitled to Sec.117 aftercare. If that aftercare includes placement in a specific care home that meets their needs, if they would prefer to be in another care home elsewhere that met those needs but which cost more, then they can "top up" the fees. The patient and relatives should be fully involved in aftercare plans. However, if the patient was admitted informally or under Sec.2 and subsequently became an informal patient, they would still be entitled to assessment of their aftercare needs but would have to contriubte towards them, or pay the full amount, depending on their personal capital.

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    2. Thanks for the reply Masked AMHP. And, to clarify, does my father in law have a right to choose which area he resides in (if he is detained under section 3 then released to a care/nursing home)?

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    3. Yes, providing it meets his needs.

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  25. Hi, I am working with a client who has been recalled under her s.37/41. she was in her flat prior to being recalled and her belongings were left. the local authority said that they wanted her to remove all her belongings otherwise they were going to destroy them. they also refused to help her remove her property or pay for it to be placed in storage.

    does the local authority have a duty to ensure her belongings etc were removed and stored safely? can they also refuse to apy for the items to be p[laced in storage. this is her second recall and they did pay for all of this the alst time.
    thanks

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    Replies
    1. Under the Care Act 2014, the local authority does have a responsibility towards the protection of property for people in hospital, if there is no-one else, such as a relative, to undertake this.

      Sec.47 states:
      Protecting property of adults being cared for away from home
      (1) This section applies where—
      (a) an adult is having needs for care and support met under section 18 or 19 in a way that involves the provision of accommodation, or is admitted to hospital (or both), and
      (b) it appears to a local authority that there is a danger of loss or damage to movable property of the adult’s in the authority’s area because—
      (i) the adult is unable (whether permanently or temporarily) to protect or deal with the property, and
      (ii) no suitable arrangements have been or are being made.
      (2) The local authority must take reasonable steps to prevent or mitigate the loss or damage.

      However, even if the patient is eligible for Sec.117 aftercare, Sec.47(7) states:
      (7) A local authority may recover from an adult whatever reasonable expenses the
      authority incurs under this section in the adult’s case.

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  26. Hello.my mum is in a nursing home under s117 for last 2 years. She is currently physically well with alzheimers. She was placed under s 117 as she is very active and busy and in need of a lot of support and supervision.she is 79. My question is whether in the future, if she were to become less mobile and busy, therefore easier to manage, might they remove the section and I would then have to pick up cost of care? (Which I could not afford in current home she is In and of course I would not wish to move her!)many thanks as am worrying about this in the future.

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    Replies
    1. As long as she continues to require aftercare, she will remain subject to S.117 aftercare, even if her actual aftercare needs reduce. If she continues to require residential care to manage her needs, then no-one can legally discharge her from Sec.117 aftercare. As the disease progresses, she may become less mobile, but other needs might increase, eg. helping her to eat, etc.

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  27. Thanks for the useful blogs above. Quick question: client placed on section 3 in one London borough and then taken off section without 117 responsibilities being stopped or transferred. Client then moved to a neighbouring borough and placed on a section 3. Which borough holds responsibility for sec 117??.

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    Replies
    1. The rule is that the LA where the patient lived at the time he became subject to Sec.117 will continue to be responsible for Sec.117 aftercare.

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  28. Hi my mother was sectioned under section 3 in 2005 and released from hospital after a short stay with s117 aftercare. She has since gone back into hospital but voluntarily. The social worker is now saying they are unsure if she was discharged from s117 - we cannot remember the discharge should there be a formal record?? This is now really important as the hospital want to move her to a care home.

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    1. If the SW was "unsure", then they should work on the basis that she wasn't. There should be a clear record via a Sec.117C review form as to whether or not a patient is discharged from Sec.117 aftercare. It would/should only happen if the patient requires no treatment for mental disorder at all. This does not seem to be the case here. Having an informal admission subsequent to a Sec.3 makes no difference to Sec.117 entitlement.

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  29. My mother was sectioned under Section 3 in 2011 and has been receiving care in her own home for the last year. I am my mother's carer and I also live with my mother but I required extra help at home as I was struggling to cope with all my mother's needs so now carers come in 4 times a day to my mother's home as well as the support and care that I still provide as a carer. The problem is is that I've only just found out about section 117 aftercare and she has been paying a contribution towards her care at home for the last year and I am not sure if my mother was removed from section 117 aftercare when she was discharged from hospital after being sectioned under Section 3 in 2011 as I was looking after her at that point when she came back home and she had no other support apart from myself. My mother also got diagnosed with Alzheimer's in Sept 2016. I think my mother may have to go into a care home eventually but I am confused now as to what happens if she was removed from section 117 aftercare back in 2011. I hope she wasn't removed from section 117 aftercare back then but I'm not sure if she was or not and now I don't know what is going to happen if she was removed from it in regards to costs and if my mum now has to pay for everything herself if she was removed from section 117 aftercare back in 2011 when she was sectioned under Section 3.
    Any advice would be greatly appreciated.

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  30. Hi. A young person 17 years old is on a section 3 and due to be discharged. The NHS have identified a step down residential unit and are asking that the Local Authority pay for this? Is this correct given the need is a health need?

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    Replies
    1. If it's residential care, then it's a social care need and therefore the local authority should pay, as long as it's part of her Sec.117 aftercare plan.

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