Janine Hudson, who is a recent member of The Masked AMHP's Face book Group (see how much fun it is? Join today!) would like your help on a research project she is undertaking into stress and burnout in AMHP's.
Here are the details in her own words:
Fellow AMHPs we need your help:
We’re looking for Approved Mental Health Professionals practising in England to complete a survey about stress and burnout. The survey aims to determine whether there is a difference in experiences of stress and burnout between the professional groups that perform the AMHP role.
The study has been approved by King’s College London Psychiatry, Nursing and Midwifery Research Ethics Subcommittee (REC reference number PNM/11/12-23). It is the first survey of its kind since the AMHP role was introduced and with your help we hope it will yield some useful and valuable data.
It is important that AMHP’s from all professional backgrounds complete the study. However we would particularly like to encourage those from a non-social work background to take part as they are still relatively small in number. An information sheet containing further details about the study is displayed on the first page of the online questionnaire. If you would like to read more about and or complete the survey please click on the link below:
https://www.surveymonkey.com/s/stressandthestatutoryrole
We would also be grateful if you would forward this link to any AMHP’s you know that might be interested in taking part.
Thank you in advance for your time and support.
Janine Hudson
Approved Mental Health Professional
Student, MSC Mental Health Social Work with Children and Adults'
I've already taken the survey. It doesn't take too long!
Wednesday, 28 December 2011
Sunday, 18 December 2011
The Masked AMHP’s™ Essential Christmas Merchandise!
Now's your chance to stock up with the Masked AMHP’s™ Essential Merchandise!
Your AMHP colleagues will be delighted to find one (or more) of these essential items in their stocking this Christmas!
Never go out on a Mental Health Act assessment without wearing one of The Masked AMHP’s ™ MHA Tee Shirts! They are designed to save valuable time explaining the reasons for two doctors and an AMHP turning up at the patient’s door!
There are two stylish and useful versions:
For when you’re in a real hurry!
Ever found yourself going down your list with increasing desperation trying to find a Sec.12 doctor for your Mental Health Act assessment? With the Masked AMHP™ Inflatable Section 12 Doctor, such worries will be a thing of the past! Comes with realistic looking stethoscope and white coat for added authenticity! The Deluxe version speaks 3 useful phrases: “Tell me, how long have you been hearing voices?”, “I think you ought to go into hospital,” and “Have you got an expenses form?” – just like the real thing! When not in use, stows easily in your glove compartment!
Buy one and get a second for exactly the same price!
Anatomically correct! (Contains small parts)
Your AMHP colleagues will be delighted to find one (or more) of these essential items in their stocking this Christmas!
The Masked AMHP™ MHA Tee Shirts
Never go out on a Mental Health Act assessment without wearing one of The Masked AMHP’s ™ MHA Tee Shirts! They are designed to save valuable time explaining the reasons for two doctors and an AMHP turning up at the patient’s door!
There are two stylish and useful versions:
The Politically Correct MHA Tee Shirt
The Politically Incorrect MHA Tee Shirt
For when you’re in a real hurry!
The Masked AMHP™ Magic Wand
No more long waits for a hospital bed, the police or an ambulance! Simply wave The Masked AMHP™ Magic Wand, make a wish, and whatever you require will magically materialise! (Warning: if an ambulance is still in use after midnight, it is likely to turn into a pumpkin.)
The Masked AMHP™ Telepathic Section Papers
With The Masked AMHP™ Telepathic Section Papers you no longer need to worry about filling in the details correctly! When you give the papers in to the MHA Administrator, they will see exactly what they want to see!
The Masked AMHP™ Inflatable Sec.12 Doctor
Buy one and get a second for exactly the same price!
Anatomically correct! (Contains small parts)
Thursday, 8 December 2011
More on Section 117 Aftercare: Clash of the Titans
Masked AMHP: Hi, Blog Reader. Nice of you to drop by.
Blog Reader: Clash of the Titans, eh? What’s that all about then?
MA: I’m glad you asked me that. This post is all about when S117 Aftercare Goes Bad.
BR: Ooer! Tell me more…
MA: Don’t worry, I will. This is essentially all about Local Authorities and their efforts to avoid their financial responsibilities to provide aftercare under S117. But don’t go away, it’s fascinating. Honest. Just to briefly recap on my last post about S117, the MHA 1983 established the duty of PCT’s and Local Authorities to provide aftercare to people who had been detained under Sec.3 and certain other sections imposed by the Criminal Courts. From then on, many local authorities challenged the implication that they could not charge for aftercare services under S117. As far back as 1994, the Department of Health had to issue guidance stating clearly: “Services provided under section 117 of the Mental Health Act 1983 are not subject to charging”. In 1998, a Parliamentary written answer stated: “"Charges cannot be levied for services, residential or non-residential, which are provided as part of the programme of after care for a patient . . . under section 117" (Hansard Written Answers, 28 July 1998, col. 172).
BR: I’ve think I’ve got that. Carry on.
MA: If only local authorities were as astute as you! A number of local authorities over the years have sought to either challenge this statement or find ways around it. A good example is Regina v. Manchester City Council Ex P Stennett and Two Other Actions [2002] UKHL 34. This involved consideration by the Court of Appeal of 3 cases of people with mental illness who had been detained under Sec.3, discharged into residential care and then charged for their accommodation. These cases were appealed by the individuals, and their appeals were upheld. The 3 local authorities involved then took the cases to the House of Lords. They argued that S117 merely operated as a gateway section to trigger provisions under other statutory provisions, for example, Sec.21 National Assistance Act 1948, under which services can be charged. The Court of Appeal dismissed this argument and the appeals.
BR: Quite right, too. Justice prevails.
MA: But then another tack is to simply try to avoid providing appropriate aftercare at all. AK v Central and North West London Mental Health NHS Trust and The Royal Borough of Kensington and Chelsea, Queen’s Bench Division, 30th May 2008 concerned the case of a man with schizophrenia who made an apparent suicide attempt by jumping from the second floor window of bed and breakfast accommodation whilst he was under the care of a Mental Health NHS Trust and the local authority. He was seriously injured. He brought a case of negligence against them for failure to provide appropriate aftercare under S117, as he had previously been detained under Sec.3, specifically, for “failing to provide or arrange for the provision of a competent social worker or care-coordinator to address the Claimant’s need for high to medium supported accommodation, and to ensure his safety by securing such a placement”. The original case was dismissed, but there was a further appeal to the Court of Appeal, which found that both the NHS Trust and the Local Authority, as well as acting negligently, had breached Articles 3 & 8 of the European Court of Human Rights, and the appeal was allowed.
BR: The European Court of Human Rights, eh? This goes right to the top, doesn’t it? By the way, just remind me what Articles 3 & 8 are?
MA: I do like your questions. It’s almost as if I wrote them myself. Article 3 prohibits torture and inhuman and degrading treatment or punishment, and Article 8 concerns the right to respect for private and family life.
BR: Do you think that’s why the present Government has been talking about getting rid of the Human Rights Act?
MA: I couldn’t possibly comment.
BR: Do local authorities always get a hammering?
MA: Mmmm, let me think – not always, there’s the case commonly known as “Mwanza” (R v Greenwich London Borough Council and Bromley London Borough Council, ex parte Michael Mwanza (2010) [2010] EWHC 1462 (Admin) QBD (Admin) (Hickinbottom J) 15th June 2010). This case involved a Zambian national who was in this country on the basis that his wife had a student visa. He was subsequently detained under Sec.3. He and his wife stayed in this country for several years, during which time his wife’s student visa ran out and they were then considered to be residing in this country unlawfully, so they were unable to work or claim benefits. He applied for accommodation and financial support. When this was refused, he applied for judicial review on the basis that S117 aftercare covered both eventualities, as they could be considered to be necessary in order to prevent a deterioration in his mental health. The Court found that a local authority’s duty to provide aftercare was limited to the services necessary to meet a need arising from a person’s mental disorder. As his mental disorder had not been the cause of his homelessness or destitution, then there was no requirement on the local authority to meet this need.
BR: That must have been a relief.
MA: You’re right, it does put clear limits on what can be considered to be aftercare, ie services only need to be provided under S117 in order to meet an assessed mental health need.
BR: Any other problems around provision of S117 aftercare?
MA: This is where it gets really dirty. Local authorities mud wrestling with each other over which one is responsible for providing aftercare! Figuratively speaking, of course. I’m not suggesting that representatives of local authorities literally get into a pool of mud and resolve disagreements over funding by wrestling with each other.
BR: I didn’t think you were.
MA: Although, come to think of it, it could be a good way of sorting out disputes…
BR: So, what sort of disagreements do they have? Are they fighting over the opportunity to pay for aftercare?
MA: Hardly. I’ll give you a theoretical, but not unusual, scenario. Mr X lives in the area covered by Authority A. He has paranoid schizophrenia, becomes unwell, and is detained under Sec.3 MHA. The S117 aftercare planning meeting concludes that he needs specialist long term care that can only provided in a care home. They find an appropriate home in the area covered by Authority B and he is placed there. A year or so later, his mental state deteriorates and he is again detained under Sec.3. So who is responsible for his aftercare when he recovers?
BR: Well, if Authority A placed him there, then surely they are still responsible for his aftercare?
MA: Wrong. You see, he has changed the place of his residence. He no longer resides in Authority A, but Authority B. Therefore Authority B has to pick up the tab for aftercare.
BR: Let me think about this – so Authority A might be quite happy for Mr X to become unwell and need detaining again, because they would no longer have any responsibility for providing aftercare?
MA: I’m sure that no local authority would be so unscrupulous as to permit that to happen. But there are some local authorities in the country that have a lot of care homes compared to other places, and therefore other local authorities frequently make placements out of area. Those local authorities can therefore end up with a disproportionate number of complex cases for whom they become responsible for the duty to provide S117 aftercare. And they’re often not terribly happy about it. Consequently, they go to law from time to time. There have been a couple of very recent court cases in which the Courts have been asked to make judgments about which local authority is responsible: R (Hertfordshire County Council) v LB Hammersmith and Fulham (JM as Interested Party) Court of Appeal, Carnwath, Rimer and Sullivan LJJ, [2011] EWCA Civ 77, 15th February 2011, and R (on the application of Sunderland City Council v South Tyneside Council [2011] EWHC 2355 (Admin) QBD (Admin) (Langstaff J) 15th July 2011. The first case looks at the concept of “ordinary residence” as defined by Sec.21 National Assistance Act 1948, and dismisses it for the purposes of S117 aftercare. During the court case, the argument was explicitly advanced that there was a need to reduce the temptation for local authorities to place people for whom provision was made under Sec.21 out of their area so that the authority in which they were placed became responsible if Sec.3 of the MHA was invoked. This argument, however, was dismissed. In the second case, one of the conclusions was that there was no material difference between “resident”, “ordinarily resident” and “normally resident”, and also that a hospital could not be considered to be a place of residence for these purposes. That would be a relief to local authorities who have hospitals where people from out of area may frequently be admitted.
BR: Well, thanks again, Masked AMHP, for yet another enlightening post. I will in particular be left with an indelible image of Directors of Adult Services slugging it out together in a pool of mud over who’s going to pay for Mr X’s aftercare.
MA: It’s my pleasure.
Blog Reader: Clash of the Titans, eh? What’s that all about then?
MA: I’m glad you asked me that. This post is all about when S117 Aftercare Goes Bad.
BR: Ooer! Tell me more…
MA: Don’t worry, I will. This is essentially all about Local Authorities and their efforts to avoid their financial responsibilities to provide aftercare under S117. But don’t go away, it’s fascinating. Honest. Just to briefly recap on my last post about S117, the MHA 1983 established the duty of PCT’s and Local Authorities to provide aftercare to people who had been detained under Sec.3 and certain other sections imposed by the Criminal Courts. From then on, many local authorities challenged the implication that they could not charge for aftercare services under S117. As far back as 1994, the Department of Health had to issue guidance stating clearly: “Services provided under section 117 of the Mental Health Act 1983 are not subject to charging”. In 1998, a Parliamentary written answer stated: “"Charges cannot be levied for services, residential or non-residential, which are provided as part of the programme of after care for a patient . . . under section 117" (Hansard Written Answers, 28 July 1998, col. 172).
BR: I’ve think I’ve got that. Carry on.
MA: If only local authorities were as astute as you! A number of local authorities over the years have sought to either challenge this statement or find ways around it. A good example is Regina v. Manchester City Council Ex P Stennett and Two Other Actions [2002] UKHL 34. This involved consideration by the Court of Appeal of 3 cases of people with mental illness who had been detained under Sec.3, discharged into residential care and then charged for their accommodation. These cases were appealed by the individuals, and their appeals were upheld. The 3 local authorities involved then took the cases to the House of Lords. They argued that S117 merely operated as a gateway section to trigger provisions under other statutory provisions, for example, Sec.21 National Assistance Act 1948, under which services can be charged. The Court of Appeal dismissed this argument and the appeals.
BR: Quite right, too. Justice prevails.
MA: But then another tack is to simply try to avoid providing appropriate aftercare at all. AK v Central and North West London Mental Health NHS Trust and The Royal Borough of Kensington and Chelsea, Queen’s Bench Division, 30th May 2008 concerned the case of a man with schizophrenia who made an apparent suicide attempt by jumping from the second floor window of bed and breakfast accommodation whilst he was under the care of a Mental Health NHS Trust and the local authority. He was seriously injured. He brought a case of negligence against them for failure to provide appropriate aftercare under S117, as he had previously been detained under Sec.3, specifically, for “failing to provide or arrange for the provision of a competent social worker or care-coordinator to address the Claimant’s need for high to medium supported accommodation, and to ensure his safety by securing such a placement”. The original case was dismissed, but there was a further appeal to the Court of Appeal, which found that both the NHS Trust and the Local Authority, as well as acting negligently, had breached Articles 3 & 8 of the European Court of Human Rights, and the appeal was allowed.
BR: The European Court of Human Rights, eh? This goes right to the top, doesn’t it? By the way, just remind me what Articles 3 & 8 are?
MA: I do like your questions. It’s almost as if I wrote them myself. Article 3 prohibits torture and inhuman and degrading treatment or punishment, and Article 8 concerns the right to respect for private and family life.
BR: Do you think that’s why the present Government has been talking about getting rid of the Human Rights Act?
MA: I couldn’t possibly comment.
BR: Do local authorities always get a hammering?
MA: Mmmm, let me think – not always, there’s the case commonly known as “Mwanza” (R v Greenwich London Borough Council and Bromley London Borough Council, ex parte Michael Mwanza (2010) [2010] EWHC 1462 (Admin) QBD (Admin) (Hickinbottom J) 15th June 2010). This case involved a Zambian national who was in this country on the basis that his wife had a student visa. He was subsequently detained under Sec.3. He and his wife stayed in this country for several years, during which time his wife’s student visa ran out and they were then considered to be residing in this country unlawfully, so they were unable to work or claim benefits. He applied for accommodation and financial support. When this was refused, he applied for judicial review on the basis that S117 aftercare covered both eventualities, as they could be considered to be necessary in order to prevent a deterioration in his mental health. The Court found that a local authority’s duty to provide aftercare was limited to the services necessary to meet a need arising from a person’s mental disorder. As his mental disorder had not been the cause of his homelessness or destitution, then there was no requirement on the local authority to meet this need.
BR: That must have been a relief.
MA: You’re right, it does put clear limits on what can be considered to be aftercare, ie services only need to be provided under S117 in order to meet an assessed mental health need.
BR: Any other problems around provision of S117 aftercare?
MA: This is where it gets really dirty. Local authorities mud wrestling with each other over which one is responsible for providing aftercare! Figuratively speaking, of course. I’m not suggesting that representatives of local authorities literally get into a pool of mud and resolve disagreements over funding by wrestling with each other.
BR: I didn’t think you were.
MA: Although, come to think of it, it could be a good way of sorting out disputes…
BR: So, what sort of disagreements do they have? Are they fighting over the opportunity to pay for aftercare?
MA: Hardly. I’ll give you a theoretical, but not unusual, scenario. Mr X lives in the area covered by Authority A. He has paranoid schizophrenia, becomes unwell, and is detained under Sec.3 MHA. The S117 aftercare planning meeting concludes that he needs specialist long term care that can only provided in a care home. They find an appropriate home in the area covered by Authority B and he is placed there. A year or so later, his mental state deteriorates and he is again detained under Sec.3. So who is responsible for his aftercare when he recovers?
BR: Well, if Authority A placed him there, then surely they are still responsible for his aftercare?
MA: Wrong. You see, he has changed the place of his residence. He no longer resides in Authority A, but Authority B. Therefore Authority B has to pick up the tab for aftercare.
BR: Let me think about this – so Authority A might be quite happy for Mr X to become unwell and need detaining again, because they would no longer have any responsibility for providing aftercare?
MA: I’m sure that no local authority would be so unscrupulous as to permit that to happen. But there are some local authorities in the country that have a lot of care homes compared to other places, and therefore other local authorities frequently make placements out of area. Those local authorities can therefore end up with a disproportionate number of complex cases for whom they become responsible for the duty to provide S117 aftercare. And they’re often not terribly happy about it. Consequently, they go to law from time to time. There have been a couple of very recent court cases in which the Courts have been asked to make judgments about which local authority is responsible: R (Hertfordshire County Council) v LB Hammersmith and Fulham (JM as Interested Party) Court of Appeal, Carnwath, Rimer and Sullivan LJJ, [2011] EWCA Civ 77, 15th February 2011, and R (on the application of Sunderland City Council v South Tyneside Council [2011] EWHC 2355 (Admin) QBD (Admin) (Langstaff J) 15th July 2011. The first case looks at the concept of “ordinary residence” as defined by Sec.21 National Assistance Act 1948, and dismisses it for the purposes of S117 aftercare. During the court case, the argument was explicitly advanced that there was a need to reduce the temptation for local authorities to place people for whom provision was made under Sec.21 out of their area so that the authority in which they were placed became responsible if Sec.3 of the MHA was invoked. This argument, however, was dismissed. In the second case, one of the conclusions was that there was no material difference between “resident”, “ordinarily resident” and “normally resident”, and also that a hospital could not be considered to be a place of residence for these purposes. That would be a relief to local authorities who have hospitals where people from out of area may frequently be admitted.
BR: Well, thanks again, Masked AMHP, for yet another enlightening post. I will in particular be left with an indelible image of Directors of Adult Services slugging it out together in a pool of mud over who’s going to pay for Mr X’s aftercare.
MA: It’s my pleasure.
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.
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.
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