Ask
The Masked AMHP for the answers to your thorny MHA related problems. He might
know the answer. Or not.
The
Masked AMHP always tries to assist people, whether professionals or patients,
who ask for assistance or advice. However, I cannot guarantee that my advice is
definitive.
My
postbag continues to receive requests for advice from relatives who are being
misled about responsibility for S.117 aftercare. Whether through ignorance, or
a desire to save money, I can only guess. The son of an elderly lady wrote to
me with this problem.
My
mother was recently discharged from a Psychiatric Hospital in Area A. She
has a history of depressive mental illness having been hospitalised at least
six times over the years and each time receiving ECT therapy to get better. She
was placed on S.2 MHA and subsequently S.3 MHA, and was given a
diagnosis of severe depressive disorder with psychotic symptoms as well as
dementia.
I
attended her discharge meeting in the hospital and was told she would be
subject to S.117. I was told that I should ‘Google it’ to see what it meant
when I got home. The doctor at the hospital stated that it would not be a
possibility to return home as she would need a substantial care package. As it
was Christmas, I decided to take her home to spend Christmas with me. I live in
Area B.
While
she was with me it became clear that she would need some form of residential
care. I contacted the community mental health team in Area A, but was told that
she was now in Area B and that I should contact social services in Area B.
Following a Care Act assessment conducted by Area B social services, she was placed
in a care home near where I live.
I
contacted Area A social services regarding help with her care home fees under
S.117 to be told that it was nothing to do with them now she was in Area B.
However, Area B then told me the responsibility was with Area A.
It
appears that because I took my mother home for Christmas she has received no
consideration regarding her after-care and I really should have let her go into
respite care.
The
Masked AMHP replies:
As
your mother was detained under S.3 MHA, she will be entitled to free S.117
aftercare. She should also have a Care Act assessment of her needs. The costs
of any needs identified should not be chargeable.
I
received this reply:
In
principal there appears to be agreement that my mother is entitled to S.117
aftercare, the argument now is who is responsible, is it Area A or Area B? My
understanding is that when she was taken into hospital her GP was in Area A,
she lived in Area A and was hospitalised in Area A, therefore they are
responsible despite the fact she is now in a care home in Area B. Area A are
apparently seeking legal advice.
The Masked AMHP replied:
This
issue is covered by the Care Act 2014.
Sec.39(1)
of the Care Act gives a clear definition of “ordinary residence”. Essentially,
this applies to adults requiring residential care. “Ordinary residence” in the
case of your mother is “in the area in which the adult was ordinarily resident
immediately before the adult began to live in accommodation of a type specified
in the regulations”.
Sec.39(4)
then explicitly applies this to Sec.117 after-care, stating:
“An
adult who is being provided with accommodation under section 117 of the Mental
Health Act 1983 (after-care) is to be treated for the purposes of this Part as
ordinarily resident in the area of the local authority in England or the local
authority in Wales on which the duty to provide the adult with services under
that section is imposed.”
I'm
not sure why Area A is seeking legal advice since it seems quite clear.
If
your mother was living in her own home in Area A at the time she was detained
under S.3 MHA (or S.2 followed by S.3), then Area A are responsible for S.117
aftercare. The fact that you took her to live with you in Area B is immaterial.
It is the "ordinary residence" at the time of admission to hospital.
Assuming she has been assessed by the local authority as needing residential
care to meet her care needs because of mental disorder, then Area A would
be responsible for paying for it.
Here’s
another relative with problems around S.117 aftercare:
Hi,
wonder if you can advise. My elderly aunt has diagnoses of advanced
Parkinson’s/Dementia, Psychosis, Paranoia, Anxiety and Depression. She was
detained under s.2 then subsequently discharged to self funded residential
care. This placement broke down and she was again detained under S.2, and this
was followed by detention under S.3.
Her
social worker recommended several possible placements for us to view, to be
funded under S.117, that could meet her needs upon discharge and the deal was
about to be done when she got Pneumonia and fractured hip and transferred from
MH Hospital to regular hospital. This social worker then left their post and we
were left to the mercies of the hospital discharge team.
The
CCG said no to S.117 funding as they considered there were no ongoing health
needs. They based this on the fact that her MH was now much improved, The new
social worker told us they would only provide funding up to their standard
maximum, and anything above that would have to be topped up by my aunt.
We
reluctantly agreed to this so as not to delay discharge even though the
placement was as the original social worker’s recommendation!
We
then received a phone call the day before discharge saying that we had to sign
the top up agreement that day or she could not be discharged. It was the
standard ‘means tested’ top up agreement and we remarked at the time that we
were surprised there was not specific paperwork for S.117.
5
months later a newly allocated social worker is saying S.117 funding was never
agreed and a financial assessment must take place.
The
Masked AMHP replies:
As
your relative was detained under S.3 MHA she will be entitled to S.117
aftercare.
Unless there
has been a formal meeting with Health and Social Services agreeing that your
relative has no needs whatsoever for mental health aftercare, then S.117
responsibilities will continue, which means at the least that there have to be
regular review meetings to review her needs. The CCG cannot unilaterally say
she has no needs, although they may consider that her needs can be met through
social care.
If
your relative is in a nursing home, then nursing costs should in any case be
met by the CCG.
It
is very curious that one social worker identified a placement which presumably
reflected her mental health needs, but another social worker is now saying this
is not covered by S.117.
Under
S.117, all the costs of a care home identified as being the most suitable
should be met. A top up would only be required if you and she chose to go to
another care home that was more expensive.
Even
if the current social worker says no S.117 funding was ever agreed, that does
not negate the local authority's duties under S.117. It just means that they
have not fulfilled their duties under S.117.
The
only complication would be if the care provided was solely arising from
physical care needs, but this would be hard to establish, as care homes for
elderly people will generally care for a mixture of people with physical and
mental frailty.
Even
if your relative's other mental health conditions have been successfully
treated, she must still be receiving some sort of medication for mental
disorder, eg antipsychotic and/or antidepressant medication, which proves an
ongoing requirement for mental health aftercare. Also, Parkinson's Disease,
which can produce dementia, and any other underlying dementia, are not
curable, so she must still have these conditions, which are covered by S.117
aftercare.
I
would point these matters out to the current social worker – the bottom line is
that as she has at some point been detained under S.3 MHA, she is entitled to
S.117 aftercare, whether local authority likes it or not.
If
they refuse to budge, then I would make a formal complaint to the local
government ombudsman, who has taken a dim view of local authorities trying to
dodge their S.117 responsibilities in the past.
I
received this reply:
The
CCG pretty much said that her needs going forward were social care needs. She
currently resides in a residential care home registered for EMI. This is what
we told she needed.
As
far as we know she is not taking any MH meds. She was taken off them because
they were causing complications with her Parkinson's meds and she had a couple
of episodes of 'dropping' which they felt was due to the MH meds. On balance,
they felt it was the lesser of two evils not to take them.
Thank
you for the reassurance that we have not got completely the wrong end of the
stick. I shall be making the case that we should not be (and should never have
been) paying a top up. We have been truly let down as a family with no mental
health follow up being put in place after either of her stays in mental health
hospitals and had to beg to have a social worker allocated again when the
current placement was looking dodgy a few months ago.
The Masked AMHP replied:
They
are clearly accepting that she is entitled to S.117 aftercare, and furthermore
she is in an EMI care home. In the circumstances, it is irrelevant what
medication she might or might not be taking.
As
this is the specific care home identified to meet her needs, they cannot
legitimately insist on top-up payments, and S.117 should cover the entire cost.
They're
really trying it on!