Ask the AMHP -- This Week: A Mixed Bag of Sec.117 After-care Issues

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

I receive a lot of enquiries relating to Sec.117 after-care. Some are from professionals struggling to make sense of the regulations, and some are from distressed relatives of patients who frankly appear to be being misled by professionals regarding the rights to receive after-care.

Here are a few of them.

This one is from a relative of an elderly woman with dementia and challenging behaviour who was detained under Sec.3 MHA who was then eventually placed in a care home.

Social services called a Continuing Health Care meeting saying her needs were such that she should have CHC funding for one to one care, but at the time nobody seemed to know she was funded by the local authority under Sec.117 aftercare. Health told me at the meeting if she failed to get CHC then she was eligible for the full fees and I queried this as she was funded under Sec.117 aftercare. They checked on this and then walked out of the meeting saying Sec.117 supersedes CHC, leaving us all astounded.

Mum's behaviour quickly deteriorated on the new antipsychotic she had been given and the home evicted her within a week and she ended up in the local psychiatric unit again.

With the attention she has received there she improved, but they had to move her from the more severe unit to the more "residential " one as she was still in danger of fights with staff and patients. Sometimes she was on one to one but the staff got to know her and she was somewhat more settled.

A home assessed her but this time I did not ask any questions and they accepted her. On moving in her behaviour deteriorated . The home have now given her two weeks notice of eviction as they feel the hospital have misled them and they cannot meet her needs without one to one care.

The hospital refuse to take her back. The home has had to organise one to one care for two days as I was so concerned for her safety.

Social Services say she will need to go out of the county because there isn’t anything here without one to one that could cope.

I don’t want my Mum to be hours away from family support if she is dying.

I know this is all about money and the council cannot fund one to one, but I am told I can’t even use mum’s money for the extra support she needs. If she was on CHC she would get the help but with 117 aftercare she cannot get the care she needs.

The Masked AMHP replies:

Sec.117 and Continuing Health Care are not mutually exclusive. Just because someone is subject to Sec.117 aftercare does not mean they cannot be assessed for their needs under CHC, and if they need hospital care, this should be provided regardless.

If your mother's behaviour is too much for residential care or nursing homes to manage, then consideration should be given to admitting her to hospital for further assessment and/or treatment. The MHA could be used for this.

Under the new changes to the Mental Health Act by the new Care Act, a patient’s own funds can be used to “top up” their care.

The newly inserted Sec.117A is concerned with “preference for particular accommodation”. Subject to regulations to be issued by the Secretary of State, it will place a duty on the local authority not only to take into account a person’s preferences, but “must provide or arrange for the provision of the person’s preferred accommodation” as long as the preferred accommodation meets the identified aftercare needs. However, it is likely to allow the local authority to charge for the difference between the actual cost of this preferred accommodation and “the usual cost of providing or arranging for the provision of accommodation of that kind”.

Another nearest relative writes:

I am the mother of A, who is under section 3 in a psychiatric hospital. He has been ready for discharge for eight weeks but this has been blocked because there is a problem over funding the section 117.

A is Autistic and had been funded by X local authority to stay in a residential care home specialising in helping young adults with Autistic Spectrum Disorder to cope independently in Y local authority. He was due to leave there very shortly to a new placement organised by X.

Whilst there A's mental health deteriorated and he was detained under section at the local hospital in Y local authority. This was changed to section 3 and he was put on to medication. This all worked well and he was prepared for discharge. At this time X announced that they would not fund his section 117. As soon as he went onto section 3 they 'dumped' him saying that it was Y's responsibility. Y initially said no but then came up with a plan to share the costs with X but X flatly refused.

The urgent problem that we have is that all the time the rowing has gone on A has been detained with the loss of liberty that entails. As mentioned before he is Autistic and finds the environment very upsetting. He has now been there 8 weeks longer than he should. We have been told that he will be there until the dispute is resolved.

I would appreciate your advice on how we can get A out of there whilst the 2 warring authorities fight out who can shirk their responsibilities.

 The Masked AMHP replies:

It is truly appalling that your son has to suffer because local authorities are haggling over who should pay for his aftercare.

When someone is detained under Sec.3, the responsible authority for providing aftercare is the one in which the person was residing at the time he was detained. The residential care home would be considered to be his normal residence, as he was living there at the time, even though the placement was being funded by X, and you would probably consider that your home would be his permanent address. That means that X’s legal obligation to fund aftercare ended when he was detained under Sec.3. It also means that Y is now the authority responsible for funding any future aftercare, as whether they like it or not, they have now taken on that duty.

Although I agree that it appears heartless that X have refused to share the costs of aftercare, legally, they have no responsibility to fund your son any longer. I am sure that Y would have taken the same tack if they placed someone in X who was subsequently detained under Sec.3.

Case law is now very clear about this: the responsible authority is the one in which the patient was residing at the time they were detained. These authorities ought to know this and Y should accept responsibility.

Your son would be entitled to free legal representation by a lawyer who specialises in mental health. I would suggest that you get your son to appeal against his detention. He will then get a legal representative who can argue in a Manager’s Hearing or Tribunal that Y are shirking their legal responsibility.

It has been my experience that Tribunals can speed up these decisions by summoning senior staff in the local authority to appear before them to explain why there is a delay. The Tribunal is a court of law, and this sort of threat often concentrates the minds of intransigent senior managers!

 An AMHP asks:

The advice in my mental health trust at present is that we shouldn’t be discharging people if they continue to have Sec.117 status because the GP’s can’t /won’t review; and that the receipt of medication for their mental disorder represents aftercare! This means that patients who have no need of a service other than the on-going prescribing of their medication would remain in secondary care? Do you have a view on this?

The Masked AMHP replies:

The new Code of Practice (just issued and coming into force from 1st April 2015) has this to say:

33.3 After-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition.

33.4 CCGs and local authorities should interpret the definition of after-care services broadly. For example, after-care can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.

33.20 The most clearcut circumstance in which after-care would end is where the person’s mental health improved to a point where they no longer needed services to meet needs arising from or related to their mental disorder.

33.21 After-care services under section 117 should not be withdrawn solely on the grounds that the patient has been discharged from the care of specialist mental health services.

 

All of this would seem to indicate that the only circumstances in which a patient could be discharged from S.117 aftercare would be if they ceased to have any service provision relating to mental health needs, including medication for mental disorder. We tend to have no quibble about a patient having a depot injection remaining on S.117, so why should it be any different if they are having a prescription of oral medication from their GP?

I would tend to lean to the view that a patient who has made such a good recovery from their mental illness that they no longer need input from secondary services should perhaps no longer be subject to formal aftercare reviews. After all, the concept of "recovery" is based on the idea that people can actually get better. I have to confess that I did once have a patient with bipolar disorder who made such a good recovery that he had no symptoms and was working full time, making it difficult for him to see me as his care coordinator, or the psychiatrist, and we decided to discharge him from S.117 aftercare, even though he was still taking mood stabilising medication, which he obtained from his GP.

But the Code seems to indicate otherwise. I guess that there is no harm in having 6 monthly aftercare meetings to monitor a patient's mental state, even if they have recovered. There is research that indicates that patients receiving a depot injection from a CPN were less likely to relapse than patients receiving a depot from their GP practice nurse, so there seems some mileage in ongoing contact with a mental health specialist of some sort.

 

The Masked AMHP tries to be accurate, but should not be relied on as a definitive statement of law.