Summary

Section 117 of the Mental Health Act 1983 (MHA) sets out the legal obligation on relevant Local Authorities and CCGs to provide aftercare to certain detained patients once they cease to be detained. This is a 'stand-alone' duty and services provided under Section 117 cannot be charged for. Due to the financial implications of Section 117, identifying which bodies have responsibility for Section 117 aftercare has long given rise to dispute.

Section 117(3) MHA currently provides that the responsible CCG and Local Authority is that in whose area the patient was ordinarily resident immediately before being detained. If the patient had no such ordinary residence, then the relevant bodies are those in whose area the patient was resident immediately before being detained. If the patient had no such residence, responsibility defaults to the area he or she is sent to on discharge.

This may seem simple enough on the face of it, but the reality is that CCGs and Local Authorities operate within differing legal and regulatory frameworks in terms of commissioning responsibilities. Added to this, there have been numerous shifts in the legal position on Section 117 over the years. This has led to a complex legal landscape. This complexity impacts particularly in cases where disputes over Section 117 responsibility span back over time.

This briefing sets out the recent changes and pulls together some of the key guidance to assist CCGs and Local Authorities in assessing their Section 117 responsibility.

Key Changes

Local Authority

Pre-Care Act 2014

Prior to the Care Act coming into effect on 1 April 2015, Section 117(3) provided that the responsible CCG and Local Authority is that in whose area the patient was resident immediately before being detained. If the patient had no such residence, then the responsibility defaulted to the bodies for the area the patient was sent to on discharge.

Case law clarified that any 'deeming provisions' (i.e. where, in certain circumstances, the person is placed out-of-area but continues to be deemed in law as ordinarily resident in the placing Local Authority's area) did not apply for Section 117 purposes.

Case law had also established that the test in Section 117 was 'residence' not 'ordinary residence' used to determine responsibility for other services.

Post-Care Act

From 1 April 2015, the Care Act (Section 75) amended Section 117 to identify the responsible CCG and Local Authority as those in whose area the patient was ordinarily resident immediately before being detained. If the patient had no such ordinary residence, the relevant bodies are those whose area he or she was resident immediately before being detained. If the patient had no such residence, responsibility defaults to the area the patient is sent to on discharge.

The intention of this amendment may have been to bring responsibility for Section 117 into line with responsibility for other services. However, the amended wording did not have this effect because the way the legislation was drafted means that the deeming provisions contained in the Care Act (i.e. provisions deeming someone to be ordinarily resident in the placing Local Authority's area when they are moved out-of-area) do not apply to Section 117.

This has led to confusion over whether the deeming provisions which led to placing authorities retaining responsibility in relation to other services could also be applied to Section 117.

The position was however clarified in March 2016 by a revision to the statutory Care Act Guidance which makes clear that the deeming provisions in the Care Act do not apply to Section 117:

'19.47 There are several provisions in the Care Act...which deem a person to be ordinarily resident in a particular local authority’s area in specified circumstances for the purposes of Part 1 of the Act. These deeming provisions do not apply to section 117 of the 1983 Act, nor have they been incorporated into section 117 of the 1983 Act.'

The practical effect of all this is that responsibility for a person's Section 117 aftercare falls to the Local Authority in whose area the person was in fact ordinarily resident (under the common law test) immediately before being detained rather than where they were deemed to be ordinarily resident for the purposes of other Local Authority services under the Care Act.

Where accommodation forms part of Section 117 aftercare, the Care Act deems the person to be ordinarily resident in the Section 117 authority's area for the purposes of other Local Authority services as well.

CCGs

Under Section 117 itself, the route to identifying the relevant CCG has always been the same as it is for identifying the relevant Local Authority - i.e. responsibility is based on where the person was resident (or, since 1 April 2015, ordinarily resident) immediately prior to detention.

In practice, however, healthcare commissioning regulations have meant a changing and sometimes complicated picture in terms of identifying which health service body is responsible for Section 117 aftercare.

This changing legal landscape looks like this:

Post 1 April 2013

The NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 came into effect on 1 April 2013 and set out CCG commissioning responsibilities.

In relation to Section 117, Regulations 14 and 15 provided for the moving of Section 117 responsibility from one CCG (CCG A) to another (CCG B) broadly in line with ordinary CCG commissioning rules – i.e. following GP registration (apart from some specific cases such as where NHS England has commissioning responsibility).

Unfortunately, the precise effect of these regulations was confused and unclear in a number of respects. What was clear, however, is that patients discharged onto Section 117 after 1 April 2013 could find that the CCG responsibility for their aftercare moved to another CCG area, whilst the Local Authority responsibility remained with the original Local Authority.

Post 1 April 2015

As noted above, on 1 April 2015, the Care Act introduced ordinary residence as the Section 117 test. However the effect of Regulations 14 and 15 continued to mean that Section 117 responsibility shifted between CCGs, as above.

Post 1 April 2016

The NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2016 came into effect on 1 April 2016, effectively reversing much of Regulation 14 (although some elements remain in certain cases).

As a result, Section 117 responsibility no longer moves with ordinary commissioning rules (i.e. it will no longer follow GP registration) but, instead, is determined by where the patient was ordinarily resident (or resident, if they had no ordinary residence) immediately prior to detention.

This means that for patients discharged onto Section 117 on or after 1 April 2016, the CCG fixed with the Section 117 responsibility will retain it, even as the patient moves from area to area, in line with the Local Authority position.

For those patients to whom Regulation 14 applied (i.e. those whose Section 117 CCG body changed with, for example, GP registration), the 'clock stops' as at 1 April 2016, with the effect that whichever the relevant CCG was at that point, that CCG remains the relevant Section 117 body thereafter, until the patient is either discharged from Section 117 or is re-detained under a relevant section of the Mental Health Act, starting the whole process again.

NHS England's 'Who Pays?' guidance is to be amended to reflect this change to the regulatory position, with revised paragraphs (paragraphs 33 and 34) being circulated in March this year.

Summary

The legal position for patients discharged onto Section 117 aftercare on or after 1 April 2016 is now relatively clear - i.e. responsibility for Section 117 aftercare services falls to the Local Authority and CCG for the area where the patient was ordinarily resident (or resident, if they had no ordinary residence) immediately prior to being detained under the Mental Health Act. Neither GP registration (for CCGs) nor the usual deeming provisions around ordinary residence (Local Authorities) come into play for cases going forward.

However, the position in relation to Section 117 remains complex, with a number of issues still unclear, particularly when trying to unravel CCG/Local Authority responsibility for periods prior to 1 April 2016.

In practice, there also continues to be considerable confusion arising from the mis-match between how responsibility for Section 117 services is determined as compared with responsibility for other health/social services, perhaps fuelled by the hope that changes in the law (particularly the Care Act) would bring greater clarity and consistency than they have.

How we can help

Our national team of mental health specialists have extensive experience in advising health and social care providers and commissioners in relation to all aspects of Section 117 aftercare.

We can provide bespoke training in relation to all aspects of the Mental Health Act, including issues arising out of Section 117 from an NHS and Local Authority perspective.