Aftercare under Section 117 of the Mental Health Act 1983

1. The Duty to Provide Aftercare Services

Section 117 of the Mental Health Act 1983 requires Integrated Care Boards (ICBs) (previously Clinical Commissioning Groups ('CCGs')) and local social services authorities to provide aftercare services to patients who were detained in hospital for treatment under section 3, 37, 45A, 47 or 48 of the Mental Health Act and who are no longer detained. Services under this section must be provided in co-operation with relevant voluntary agencies.

Section 117(3) provides that the responsible bodies will be those:

'if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which [they were] ordinarily resident'.

The interpretation of this provision has been the subject of case-law. In R (Worcestershire County Council) v SSHSC [2023] UKSC 31, the Supreme Court held that:

1. A duty under section 117(2) to provide after-care services automatically ceases when the patient is detained again (‘the second detention’) for treatment under section 3 (or another provision specified in section 117(1) – a hospital order or direction under section 45A or a transfer direction under section 47 or 48) (but not a voluntary admission or an admission for assessment under section 2 Mental Health Act 1983);
2. Upon the second discharge (i.e. discharge from the second detention), a new duty is placed on the local authority of the area in which the patient was ordinarily ordinarily resident immediately before the second detention;
3. The words ‘is ordinarily resident’ must be given their usual meaning, with the adaption where there is lack of capacity that the mental aspects of the Shah test (voluntary adoption and settled purpose) must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned.

In light of this ruling, it is anticipated that the government will provide updated guidance but, until such time, legal advice should continue to be sought as necessary.

The sections of the Act to which this duty relates are all concerned with compulsory detention in a hospital:

• Section 3 deals with patients who are detained in hospital for treatment;
• Section 37 gives the magistrates' court or crown court a power to direct that a person will be detained in hospital either following conviction for an offence or on being satisfied that the person carried out the action that would have constituted the offence;
• Section 45A gives the higher courts a power to direct that a person convicted of an offence shall be detained in hospital instead of being detained on prison;
• Section 47 authorises the Secretary of State to direct that a person serving a prison sentence shall be detained in hospital;
• Section 48 authorises the Secretary of State to direct that a person who has been remanded to custody or detained under immigration legislation shall be detained in hospital.

The duty to provide aftercare services remains in force until the health authority and the Birmingham Children's Trust are satisfied that the person concerned is no longer in need of such services.

Aftercare services provided under section 117 can include services provided directly by the Birmingham Children's Trust or by the NHS or services they commission from other providers. Services should aim to support the person in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital.

Although the duty to provide aftercare services begins when the young person leaves hospital, planning should start as soon as possible after s/he is admitted. The worker should discuss with health professionals how and when the young person's needs for aftercare will be assessed and the arrangements for identifying appropriate services to address these needs.

Aftercare planning will involve a number of medical, nursing and other practitioners; the issues that should be considered in the assessment of need are listed below. A single assessment under the guidance in Working Together to Safeguard Children could be used for this provided that particular attention is given to these issues.

It is important that those who are involved in discussions about aftercare plans are able to make commitments about their own continuing involvement and the services to be provided or commissioned by the Children's Trust. If the worker will need to seek approval for this, extra time must be set aside for planning so that this does not delay the date for the young person's discharge from hospital.

Practitioners should be aware that the plans to provide aftercare services will be a significant factor in deciding when the young person will be discharged from hospital. It is important to ensure that assessments are up to date and commitments in principle to provide services have been made in advance of any hearing.

The practitioners concerned, in discussion with the young person, should agree an outline of the young person's needs and a timescale for implementing the various aspects of the aftercare plan. The plan should clearly allocate responsibility and deadlines for completing each task.

The aftercare plan must be recorded in writing. It will be reviewed regularly until it is agreed that it is no longer necessary. It is essential that any changes are discussed with the young person, his/her parents and others likely to be affected before they are implemented.

The duty to provide aftercare services exists until both the Birmingham Children's Trust and the Integrated Care Board are satisfied that the young person's mental health has improved to a point where s/he no longer requires them. Services must not be withdrawn solely because the young person has been discharged from the care of specialist mental health services, or because an arbitrary time limit has passed.

2. Issues to be Considered in Aftercare Planning

A thorough assessment is likely to involve consideration of:

• Continuing mental healthcare;
• The psychological needs of the young person and of their family;
• Physical healthcare;
• Daytime activities or employment;
• Appropriate accommodation - if the aftercare plan includes the provision of accommodation, and the young person has committed one or more criminal offences, the circumstances of any victims of the offence(s) and of their families should be taken into account when deciding where the young person should live;
• Identified risks and safety issues;
• Any specific needs arising from, for example, co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder;
• Any specific needs arising from drug, alcohol or substance misuse;
• Any parenting or caring needs;
• Social, cultural or spiritual needs;
• Counselling and personal support;
• Assistance in welfare rights and managing finances;
• The involvement of authorities and agencies in a different area, if the young person is not going to live locally;
• The involvement of other agencies, for example the probation provider or voluntary organisations;
• Any conditions likely to be imposed by the Secretary of State for Justice or the Tribunal;
• Contingency plans (should the young person's mental health deteriorate); and
• Crisis contact details.