People who have been compulsorily detained under particular sections of the Mental Health Act are entitled to aftercare on their discharge.
The provision of aftercare has been held by a court to be a completely separate service to all the other community care functions of the local authority, and there are various aspects to the wording of the function which make it complicated for local authorities and health authorities to discharge.
the illegality of charging for the services provided and the anomalies this produces in relation to benefits and other features of residential care homes;
the undefined scope of the services which can constitute aftercare; for instance, is medicine aftercare? If it is, people should get it for free, and not have to pay for a prescription. If (as is our gut feeling) it does not count as aftercare, why not, in law?
the joint duty to provide it, imposed by the statute on health and social services authorities – unlike any other function in the statutory framework;
the variety of ways in which people can be discharged from hospital making it difficult to be formal about s117 aftercare planning;
the uncertainty as to whether any service needed ‘after’ the point of discharge, has to count as an aftercare service – or whether the scope of aftercare has to be related to a mental health need, and one connected with the need for the original detention;
the perverse incentives produced by this ban on charging for clients to refuse to go to hospital voluntarily; and likewise the pressure on professionals to use a s2 instead of a s3 application;
the uncertainty as to the exit criteria – ie the grounds on which free aftercare can or should be brought to an end – bearing in mind that a person with schizophrenia will probably always be regarded by professionals as ill;
the absence of choice for s117 patients of where services will be provided, in contrast to the right to choose accommodation (subject to various factors), if one is not having aftercare, but needs National Assistance Act care;
the ambiguity of the section’s wording regarding the question of which authority ought to be liable for aftercare, if the person wants to move during the period of aftercare services.
Although after care services are not defined in the Act, it has been assumed in case law that they may include accommodation (residential, nursing, hostel, etc) and own home or supported living domiciliary care services; social supervision (by ASW, Probation Officer, Community Psychiatric Nurse); outpatient appointments; day care centres; as well as employment, career and welfare benefits advice.
It is worth noting that >s32(3) of the current Mental Health Act provides
‘Without prejudice to subsections (1) and (2) above, but subject to section 23(4) above, regulations under this section may determine the manner in which functions under this Part of this Act of the managers of hospitals, local social services authorities, Health Authorities, Special Health Authorities, Primary Care Trusts or National Health Service trusts are to be exercised, and such regulations may in particular specify the circumstances in which, and the conditions subject to which, any such functions may be performed by officers of or other persons acting on behalf of those managers authorities and trusts.
There are no regulations biting on s117 functions at the moment, but we expect that the DH will introduce some once the House of Lords decision in the Watson and other cases comes out (see below for an account of these) and settles the charging issue once and for all.
Watson is the most important ruling in relation to s117 and concerned the problem that around 50% of local authorities have been charging for aftercare services, whilst the court has held that it has been unlawful so to do.
Local authorities and health authorities should have confirmed that their policies and charging procedures were compliant with this ruling in 1999/2000, in accordance with DoH guidance.
These cases concerned a number of persons who had previously been detained under the Mental Health Act 1983 and who upon discharge from detention were provided by the local authorities with residential accommodation. The service users successfully applied for judicial review of the authorities’ decision to charge them for the provision of their accommodation.
The local authorities sought to argue that s117 after care was provided under the Mental Health Act 1983 which was a ‘gateway’ to sections 21 and 22 of the National Assistance Act 1948, and accordingly that the local authorities were duty bound to charge for the residential accommodation provided. The local authorities argued that although s117 created a duty to provide after care services, these were not a free-standing raft of undefined services but that in law s117 was a ‘gateway’ provision which referred to the body of services which the local authorities had other powers to provide, under other enactments. In opposition, the service users argued that the duty of local authorities and health authorities to provide after care was a ‘stand alone’ duty (and not a ‘gateway’ duty) as clearly set out in the Mental Health Act, which is an Act to which there are no charging provisions attached.
As a creature of statute, the local authority and the health authority can only do what statute allows them to do, ie what legislation expressly or impliedly authorises. Every act, decision, policy or practice must adhere to express or implied authority, without which the public body acts outside its powers, ie ultra vires, and may be successfully judicially reviewed. Unlawful charges give rise to a claim for repayment which is unable to be defeated other than by a Limitation Act defence.
We are certain that any authority which continues to charge for after care services would be doing so unlawfully on the present state of the law, and if they continued to do would be at risk of audit attention or other legal action for misfeasance in public office, for which insurance cannot lawfully be obtained by local authorities.