6.10 Joint Policy for the Management of Section 117 Aftercare, Reviews and Discharge

2. Scope

People with mental health needs are entitled to request an assessment under the Care Act to establish any unmet social care needs and what services they might require (see Assessment of Needs policy). However, Section 117 of the MHA 1983 (Section 117 Aftercare) goes much further than this and imposes a duty on Integrated Care Boards (ICBs) and local authorities to provide aftercare services to people who have been detained under specified sections of the Mental Health Act.

Any person who has been treated under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act is entitled to receive aftercare services from the point at which they are discharged from hospital/prison. It applies to people of all ages including children and young people.

This applies even if:

• The person remains in hospital for a period on a voluntary basis having been discharged from these sections.
• The person is released from prison having spent some of their sentence in hospital under these sections of the Act.
• The person is going onto a Supervised Community Treatment (also known as Community Treatment Orders (CTO)). It would be advisable for local areas to have agreed standard funding protocols in place where a person is discharged under a CTO to prevent delayed discharge.
• The person is granted S17 leave under the Mental Health Act.

3. What is Section 117 Aftercare?

Chapter 33 of the Mental Health Act Code of Practice (“the Code”) sets out guidance in relation to aftercare. It should be read alongside Chapter 34 (Care Programme Approach).

Paragraph 33.3 says:

“Aftercare 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 (and, accordingly, reducing the risk of the patient requiring admission to hospital again for treatment for mental disorder. Their ultimate aim is to maintain patients in the community, with as few restrictions as are necessary, wherever possible.”

It is an enforceable, free standing joint duty on the local authority and ICB in collaboration with voluntary agencies to provide free Aftercare services for patients under Section 3, 37, 45A, 47 and 48 of the Mental Health Act.

The Mental Health Act Code of Practice says that ICBs and the local authority should interpret the definition of aftercare services broadly. For example, aftercare can include healthcare, social care, employment services, supported accommodation and services to meet the person’s wider social, cultural, and spiritual needs if these needs arise directly from or are related to the person’s mental disorder and help to reduce the risk of deterioration in the person’s mental condition.

4. What is the Purpose of Section 117?

The primary purposes of Section 117 of the MHA 1983, as defined in Section 117 (6), are:

• To meet the need arising from the individual’s mental disorder.
• Reduce the risk of deterioration of the person’s mental condition.
• To minimise the need for repeated admissions for treatments

“Aftercare is a vital component in patients’ overall treatment and care. As well as meeting their immediate needs for health and social care, Aftercare should aim to support them in regaining or enhancing their skills or learning new skills, to cope with life outside hospital” (Mental Health Act Code o Practice, paragraph 33.5).

The provision of accommodation in and of itself is not considered to be Section 117 aftercare need unless:

• Need for accommodation is a direct result of the reason that the person was detained under the MHA; and
• The accommodation is enhanced specialised accommodation to meet needs directly arising from the mental condition; and
• The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising because of the mental condition.

Case law on the scope of aftercare is summarised in R (Afework) v London Borough of Camden 2013 and the Section 117 Guidance for Practitioners (published by the Local Government and Social Care Ombudsman (LGSCO), Parliamentary and Health Service Ombudsman (PHSO) in 2022) to help prevent common and repeated mistakes in the provision of care.

4.1 What it does not cover

• Storage of property
• Housing pets
• Household bills
• Food
• Holidays

See Section 47 of the Care Act, Chapter 10 of the Care and Support Statutory Guidance and the policy for Protecting Property of Adults being Cared for away from Home, including Pets for information regarding the requirements to protect “moveable property” such as personal possessions and furniture, including pets, and the storing or safekeeping of such.

The Care Act also may allow for the meeting of other eligible needs.

5. Section 117 and Ordinary Residence

See also Ordinary Residence policy.

‘Ordinarily resident’ refers to a man’s abode in a particular place of country which he has adopted voluntarily and for settled purpose as part of the regular order of his life for the time being, whether of short or of long duration” 

R v London Borough of Barnet ex parte Shah (1983)

According to Sections 18 and 20 of Care Act, local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence. In this regard, people who have no settled residence, but are physically present in the local authority’s area, should be treated in the same way as those who are ordinarily resident.

Section 75 of the Care Act amends Section 117 of the Mental Health Act 1983 to provide that the local authority responsible for providing or commissioning aftercare services is the local authority in which the person was ordinarily resident immediately before the person was detained.

Section 39(4) of the Care Act provides that an adult who is being provided with accommodation under Section 117 is to be treated for the purposes of Part 1 of the Care Act 2014 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 Section 117 aftercare services lies.

If there are disputes regarding ordinary residency, local authorities should try to resolve these locally if possible, following locally agreed procedures. Legal advice must be sought, and efforts made to resolve disagreements. If the issues cannot be resolved, they become a formal dispute and can be referred to the Secretary of State. Any disputes regarding where a person was ordinarily resident must be resolved through application of Section 40 of the Care Act 2014.

The adult must not suffer lack of, or delay in provision of, services because of an ordinary residence/ Section 117 aftercare dispute. Provision of services may be on a “Without Prejudice” basis and the costs of provision may be recouped by the successful body.

Current Department for Health and Social Care guidance on the process for managing disputes and the impact of the Worcestershire case can be found on the gov.uk website

5.1 Change of responsible local authority for Section 117 aftercare 

 Where a person who is Section 117 eligible in one local authority (authority A) is re-detained under a Section 117 qualifying section, and it appears that as a result of their ordinary residence prior to admission that a different authority (authority B) will have Section 117 responsibility upon discharge the following action is required.

Local authority A should make a request in writing to transfer the responsibility for Section 117 aftercare to Local Authority B. The information provided to support good decision making and accuracy on ordinary residence should include:

1. Dates of MHA detention and detaining section(s).
2. Details of address/residence immediately prior to admission and duration at the address.
3. Residence type e.g., funded care placement / living with family / hostel etc.
4. Any other relevant information which may indicate ‘settled purpose’ in the receiving authority’s area.

As the new Section 117 duty does not arise until the person leaves hospital, there is an expectation that authority A will remain involved in order to support discharge planning and to ensure a safe and effective transfer of care. A collaborative approach is best practice in any transfer of care, as per chapter 20 of the Care and Support Statutory Guidance:

“The key to ensuring that the adult’s care is continued is through both local authorities working together.”

On this basis, authority A should provide the following information to authority B at the earliest opportunity:

1. The name and contact details of a worker who will support with discharge planning and transfer of care.
2. Copies of health and social care assessments / care and support plans.
3. Copies of risk assessments.

If previously Section 117 eligible, Section 117 aftercare plans / details of Section 117 eligible needs / Section 117 review documents should also be provided.  These are important to ensure that the aftercare needs have been reviewed and the identified needs are aftercare needs under the Mental Health Act.

5.2 No recourse to public funds

Aftercare services must be provided free of charge and are not subject to any immigration exclusions. Therefore, nationality and immigration status are not factors that affect whether a person can be provided with aftercare under Section 117.

6. Planning Section 117 Aftercare

Section 117 aftercare status will be recorded on the relevant local authority electronic record and the health record. It is the responsibility of each organisation to maintain an accurate record. Information should be shared to ensure records are kept up to date. Each party to this policy is committed to sharing information with neighbouring authorities and/or organisations in respect of whether someone holds Section 117 eligibility.

Section 117 aftercare should be planned with the person, their family and carers, as well as professionals, including representatives from both health and social care, and should look at both health and social care needs. The type of Section 117 aftercare required will depend on the circumstances of the person and their mental health needs. Local authorities are entitled to take their resources into account when planning how to meet assessed need.  

Section117 aftercare starts once the person has been discharged from hospital, prison, or secure hospital where they were detained under a qualifying section of the MHA.   

However: Good practice would be to commence aftercare planning from the point of admission and fully advise the person and their family members of the options available. Challenges have been brought under Article 5 and Article 8 of the Human Rights Act 1998 for failure to implement discharge planning arrangements within ‘a reasonable time’. Health and social care staff responsible for discharge planning need to ensure that the reasons for any delay are well documented and evidenced. Discharging remains a joint responsibility between the ICB and the local authority.  

 Where a Tribunal or Hospital Manager Hearing has been arranged, the local authority and ICB should try to put in placed services that would allow the discharge to happen.  

The multi-disciplinary team and Lead Professional (this is the Responsible Clinician whilst the person is an inpatient) should ensure that the following key actions under Section 117 aftercare planning are taken:

• Screening for Continuing Health Care (CHC) is carried out only in relation to any physical health needs which are unrelated to mental health needs which will be addressed under Section 117. A decision regarding entitlement should be recorded. If the person is in a terminal phase of illness, consideration should be given to Fast Track Pathway.
• A Section 117 meeting is held to agree the Section 117 aftercare plan, which will include the multi-disciplinary team, representatives from health and social care, the person, their family and/or carers, and an advocate where appropriate.
• Funding arrangements for the Section 117 aftercare plan are agreed by the appropriate budget holder(s) before the Section 117 aftercare plan is implemented.
• Details of all services (including those provided to meet eligible needs which are no related to the person’s mental health) that will be provided to the person upon discharge are clearly stated in the plan – the plan should clearly state Section 117 aftercare, and detail which services are provided under Section 117, and which are provided under any other provision.
• Details of informal care provided by non-statutory bodies are clearly stated in the plan.
• If social care services are provided for reasons other than mental health, these services can continue to be provided under the Care Act. This may result in the person being required to make an assessed contribution towards the cost of their social care.
• The person is informed, in writing, about the financial implications of any services provided which are not related to their mental health after care needs.

There is no obligation to take up Section 117 aftercare services, and the person has a right to decline. It is essential to record this decision and that the person remains eligible for Section 117 aftercare.

A refusal of services or to engage does not mean the person should be discharged from Section 117 aftercare.

It is important to continue to work with the person to try to support them to accept the services to meet their mental health care needs under Section 117 aftercare. Details of the Lead Professional who will organise and chair the next review at six weeks must be clearly documented.

7. Funding Section 117 Aftercare

Section 117 aftercare responsibility comes into effect at the point of discharge. It is therefore essential as part of the discharge planning process to identify the relevant funding bodies prior to discharge.

Attention should be paid to any local pathways agreed between the local authority and the ICB relating to decision-making processes for the funding of Section 117 aftercare and Continuing Health Care. There are currently different working practises between different local authorities, in Lancashire and South Cumbria.

The responsibility of ICBs has been changed regarding residency and is set out in regulations. The responsibility of local authorities was changed by the Care Act, with effect from April 2015. As the regulations are not retrospective, the following provisions apply:

• Patient’s residency prior to 1st April 2013 should be determined according to their residence prior to detention.
• Patient’s residency on or after 1st April 2013 should be determined according to the new regulations.
• Patient’s residency on or after 1st April 2015 should be determined in accordance with the amendments made to Section 117 by the Care Act.

7.1 Funding responsibility and residency: discharge before 1^st April 2013

The responsible ICB and local authority are identified by the area the patient was resident at the time they were detained under the relevant section of the MHA. If the person did not have a place of residence, the area they are being sent to on discharge would assume responsibility.

Residency in the context of Section 117 should be interpreted as a “settled presence in a particular place other than under compulsion” (R. (on the application of M) v Hammersmith and Fulham London BC, 2010). This applies regardless of the duration of the residence. In cases of dispute, the matter of residency should be determined on a case- by-case basis (including the person’s views of where they reside), seeking legal advice if required.

Decisions regarding ordinary residence may often be complex and for this reason advice should be sought via Senior Managers, who may escalate issues to legal services as appropriate.

7.2 Funding responsibility and residency: discharge prior to 1^st April 2013 and on or after 1st April 2016

The regulations determine that the ICBs responsibility in these circumstances is:

• The ICB responsible for the area where the patient is registered with a GP, or where there is no GP registration.
• The ICB responsible for the geographic area where the patient is “usually resident”.

For ICBs ‘usually resident’ is not the same as ordinarily resident and the main criteria for determining is through the person’s perception as to where they are resident in the UK (currently or most recently).  In cases of dispute, the matter of residency should be determined on a case-by-case basis (which includes the person’s views of where they reside), seeking legal advice if required.

Decisions regarding residence, ICB responsibility and local authority responsibility may often be complex and for this reason advice should be sought via Senior Managers, who may escalate issues to legal services as appropriate.

7.3 Funding responsibility and residency: discharge on or after 1st April 2013 to 31^st March 2016

The ICB responsibility for Section 117 is determined by the ICB whose area the person was discharged to following admission.

7.4 Section 117 and the National Framework for NHS Continuing Health Care and NHS Funded Nursing Care 

The National Framework for NHS Continuing Health Care makes the following point at paragraph 339:

[…] a person in receipt of Aftercare services under section 117 may also have ongoing needs that do not arise from, or are not related to, their mental disorder and that may, therefore, not fall within the scope of section 117. Also, a person may be receiving services under section 117 and then develop separate physical health needs (e.g., through a stroke) which may then trigger the need to consider NHS Continuing Healthcare, but only in relation to these separate needs, bearing in mind that NHS Continuing Healthcare must not be used to meet section 117 needs. Where an individual in receipt of section 117 services develops physical care needs resulting in a rapidly deteriorating condition which may be entering a terminal phase, consideration should be given to the use of the Fast Track Pathway Tool. 

 Under these circumstances (i.e., a terminal phase) the ICB would make the necessary arrangements for the provision of fully funded NHS Continuing Health Care, which may be provided in any appropriate environment, including the person’s home.

7.5 Top up payments

From April 2015, following the introduction of Section 117 aftercare by the Care Act, people who are subject to Section 117 and for whom the ICB are providing or arranging accommodation under Section 117 are entitled to choose their preferred accommodation (and pay any required top-up for it themselves) provided that the conditions set out in the Regulations are met.

It must be noted, however, that the placing body must offer at least one alternative placement which would meet needs without a top up, for the person to be personally liable for a top up payment.

A person subject to Section 117 is entitled to purchase additional services over and above those identified to meet their assessed care needs. Any additional services must be separately invoiced directly to the person. Any ‘top up’ payment arrangement for Section 117 must be agreed by the relevant manager and Forum because of the risks involved.

7.6 Top up payments and risks

Top up payments for accommodation are subject to the Regulations. The Regulations provide that to apply Top up payments:

• The local authority is satisfied that a person (“the payer”) is willing and able to pay the additional cost of the preferred accommodation for the period during which the local authority expects to meet needs by providing or arranging for the provision of that accommodation; and
• The payer enters into a written agreement with the authority in which the payer agrees to pay the additional cost.

There is no need to undertake a financial assessment, but the risk mitigations detailed above must be clearly explained and recorded.  If the person is discharged from Section 117 and meets the eligibility criteria for social care services, then the usual financial arrangements will apply.

7.7 Section 117 and prescription charges

Section 117 does not automatically entitle people to free prescriptions. The Regulations (National Health Service (Charges for Drugs and Appliances) Regulations 2000(b)) state the criteria required, so that people may be able to claim free prescriptions if, at the time the prescription is dispensed, they were in receipt of a qualifying benefit or exempted condition.

7.8 Direct payments

Local authorities have a duty to offer direct payments to people who are subject to mental health legislation with the principal exception of people who are on conditional discharge from hospital under Part III of the MHA where there is now a power (but not a duty) to offer direct payments. Local authorities also have a power (but not a duty) to offer direct payment arrangements for conditions attached to a Guardianship Order.

7.9 Section 117 and personal health budgets

From December 2019, people eligible for Section 117 aftercare have a legal right to a personal health budget. A personal health budget is an amount of money to support a person’s identified health and wellbeing needs, which is planned and agreed between the person, their representative, or in the case of children, their families or carers and the local NHS.

8. Reviewing Section 117 Aftercare

A review date is set so that the Section 117 aftercare is not left to run indefinitely without thought of discharge.  All people discharged from hospital with Section 117 aftercare arrangements in place should have their care reviewed within six weeks from the date of discharge and, following that, at least annually – and more often if there are changes in need or circumstances. Each review must consider whether Section 117 aftercare can be discharged. Where care and support are delivered by the local authority, Section 117 will be considered alongside the review of all other care and support needs and planned for in the care and support plan.

If there is to be any change to the care and support plan because of a Section 117 review, it must be documented clearly whether or not the Section 117 arrangements are to continue, in which case funding needs to be agreed by the budget holder(s).

The Care Programme Approach (CPA) is changing in line with the NHS Long Term Plan and Community Mental Health Transformation. Whilst the LGO and PHSO guidance references CPA, the new model represents an opportunity to improve and to align with the Care Act. Where there is still a need for mental health professional involvement, there will be named workers (“keyworkers”) involved in delivering care and support. Care and support plans will still be developed with the person who requires support at the centre of those plans.

Where the case is open to health and or social care, only the allocated worker will contact the key workers involved in the person’s care and support and invite them to the review.

For people managed in this way, the responsibility for ensuring Section 117 aftercare reviews is undertaken lies with the named worker. This will involve:

• GP, Consultation with the Responsible Clinician and other health professionals (Lancashire and South Cumbria NHS Foundation Trust and ICB, district nurses, learning disability nurses etc), including a representative of social care services, the person, their carer(s), relatives, significant persons, and an advocate where appropriate.
• Assessing if there are any changes in circumstances which might lead to consideration of alterations to any part of the Section 117 aftercare plan.
• Where there is any query over the care and support plan or Section 117 aftercare status, a face to-face review must be requested from a professional from the partner organisation, including an assessment if there may be reason to consider discharge from Section 117 aftercare.
• The relevant worker will record reviews and outcomes on the appropriate electronic system and ensure information is appropriately shared so all organisational reporting systems can be updated, clearly stating who was involved, any changes to the Section 117 aftercare plan, and the status of Section 117 aftercare following review.

People with a mental disorder may continue to meet the requirement for Section 117 aftercare for some time. They may not, however, need regular input from a mental health professional.  For example:

• Mental health needs are well met by the Section 117 aftercare plan, the situation is very stable, and arrangements are in place for raising any concerns.
• The person has moved into residential care, their mental health needs, as well as their physical and social care needs, are well met in accordance with the Section 117 aftercare plan and the situation is stable.

 Section 117 reviews will continue to take place on an annual basis as part of the care and support review until it is felt that there are no longer any aftercare needs. At such a point consideration will be given to discharge.

9. The Decision to Discharge from Section 117 Aftercare

Aftercare under Section 117 is to be provided until such time as the local authority and ICB are jointly satisfied that the person concerned is no longer in need of statutory aftercare. The person and relevant carers and advocate (where appropriate) must be consulted prior to any decision to change Section 117 aftercare status. This would need to be a negotiated discussion, and any substantive objections to discharge by the person, relevant carer or the person’s advocate need to be recorded.  Discharge of aftercare can only be recommended if the person’s progress has been monitored in the community since discharge from hospital.

The duty to provide services continues until both organisations have come to a decision that the person no longer has needs arising from a mental disorder. Therefore, if any part of the Section 117 aftercare plan is continuing – such as regular outpatient appointments or the provision of medication – it may not be possible to say that the person no longer has Section 117 aftercare needs. However, only those needs that are identified as part of the Section 117 aftercare plan will be provided free of charge.  A person should not be discharged from Section 117 aftercare solely because they have been discharged from the care of a consultant psychiatrist, or where an arbitrary period of time has elapsed, even if the person is well settled in the community.

Section 117 aftercare cannot be ended retrospectively and can only be ended at the time the decision to end it is taken.

The Lead Professional and the multi-disciplinary team should consider the appropriateness of continuing or discharging a Section 117 aftercare arrangement at every review meeting.  The joint decision to discharge Section 117 aftercare should be on the basis that the person no longer needs any Section 117 aftercare service. A person’s entitlement to Section 117 aftercare cannot cease while they continue to be subject to a Community Treatment Order.

Consideration should be given to discharging the Section 117 aftercare if the person:

• has been stable, and
• no longer requires any Section 117 aftercare service to manage or treat an assessed mental health need, and
• would not be at risk of relapse, nor of being re-admitted to hospital if the Section 117 aftercare plan was no longer in place.
• is not a risk to themself or others.

The decision to discharge from Section 117 aftercare should not be based on a level of stability and mental well-being which is dependent on the services provided through the Section 117 aftercare plan.

When a person is to be discharged from Section 117, the agreement of both the ICB/Trust and relevant local authority should be formally recorded.

10. Further Reading

Discharge from Mental Health Inpatient Settings (DHSC)