After-care services
Introduction
19.110Persons who cease to be detained under certain provisions of the MHA 1983 (sections 3, 37, 45A, 47 and 48) are entitled to after-care services from the relevant CCG (or, in Wales, Local Health Board) and local authority, until both organisations are satisfied that the person is no longer in need of such services.
After-care services comprise any service within reason necessary to meet a need arising from a person’s continued mental disorder including (most commonly) medication, counselling and accommodation plus care and social support.
1R (Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin), (2010) 13 CCLR 454 at paras 61–67; R (Afework) v Camden LBC [2013] EWHC 1637 (Admin) at para 19.The statutory definition is as follows:
117(6) In this section, ‘after-care services’, in relation to a person, means services which have both of the following purposes–
(a)meeting a need arising from or related to the person’s mental disorder; and
(b)reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).
19.111In addition:
•the duty to provide services arises on the actual discharge of the patient but, while there is no duty to monitor the patient’s progress, the authorities have a power to take preparatory steps before discharge and are under a duty to use reasonable endeavours to fulfil the conditions imposed by a conditional discharge or similar;
2R v Camden and Islington Health Authority ex p K [2001] EWCA Civ 240, [2002] QB 198, (2001) 4 CCLR 170; W v Doncaster MBC [2004] EWCA Civ 378, [2004] MHLR 201; R (B) v Camden LBC [2005] EWHC 1366 (Admin), (2005) 8 CCLR 422. •the duty to provide after-care services applies to patients with leave of absence from hospital;
•there is a duty to provide social care but a duty only to use reasonable endeavours to provide professional medical services because medical professionals remain entitled to decline to provide a service they consider to be clinically inappropriate;
3R (H) v Secretary of State for the Home Department [2003] UKHL 59, [2004] 2 AC 253, (2004) 7 CCLR 147. •no charge can be made for services under section 117(3),
4R v Manchester CC ex p Stennett [2002] UKHL 34, [2002] 2 AC 1127, (2002) 5 CCLR 500. even when the patient is in receipt of a personal injury award designed to cover the cost of such services,
5R (Damien Tinsley) v Manchester CC [2016] EWHC 2855 (Admin). although the preferred accommodation and top up provisions now apply to accommodation provided under section 117(3) (see ‘Preferred accomodation’, paras
9.45–
9.52 above);
•under section 117(3) of the MHA 1983, the clinical commissioning group/local authority responsible for providing after-care services is the one for the area where the patient was ordinarily resident before his or her detention or, if the patient had no settled residence, where the patient was present before his or her detention, or (if that cannot be established) the area where he or she is sent on discharge;
•after-care services will usually be delivered under the Care Programme Approach, which requires joint, multi-disciplinary working between social and health care professionals. See the following:
19.112Section 117, as amended by the Care Act 2014, now reads as follows:
After-care
117(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.
(2)It shall be the duty of the clinical commissioning group or Local Health Board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the clinical commissioning group or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services ; but they shall not be so satisfied in the case of a community patient while he remains such a patient.
(2A) […]
(2B) Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.
(2C) References in this Act to after-care services provided for a patient under this section include references to services provided for the patient–
(a)in respect of which direct payments are made under
(i)sections 31 to 33 of the Care Act 2014 (as applied by Schedule 4 to that Act),(ii)…(iii)regulations under section 12A(4) of the National Health Service Act 2006,
(b)which would be provided under this section apart from those sections (as so applied) or the regulations.
(2D) Subsection (2), in its application to the clinical commissioning group, has effect as if the words ‘provide or’ were omitted.
(2E) The Secretary of State may by regulations provide that the duty imposed on the clinical commissioning group by subsection (2) is, in the circumstances or to the extent prescribed by the regulations, to be imposed instead on another clinical commissioning group or the National Health Service Commissioning Board.
(2F) Where regulations under subsection (2E) provide that the duty imposed by subsection (2) is to be imposed on the National Health Service Commissioning Board, subsection (2D) has effect as if the reference to the clinical commissioning group were a reference to the National Health Service Commissioning Board.
(2G) Section 272(7) and (8) of the National Health Service Act 2006 applies to the power to make regulations under subsection (2E) as it applies to a power to make regulations under that Act.
(3)In this section ‘the clinical commissioning group or Local Health Board’ means the clinical commissioning group or Local Health Board, and ‘the local social services authority’ means the local social services authority
(a)if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;
(b)if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or
(c)in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.
(4)Where there is a dispute about where a person was ordinarily resident for the purposes of subsection (3) above–
(a)if the dispute is between local social services authorities in England, section 40 of the Care Act 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of Part 1 of that Act;
(b)if the dispute is between local social services authorities in Wales, the dispute is to be determined by the Welsh Ministers;
(c)if the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers.
(5)The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under subsection (4)(c); and the arrangements may, in particular, provide for the dispute to be determined by whichever of them they agree is to do so.
(6)In this section, ‘after-care services’, in relation to a person, means services which have both of the following purposes–
(a)meeting a need arising from or related to the person’s mental disorder; and
(b)reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).
19.113Section 117 is supplemented by Regulations:
•the Care and Support and After-care (Choice of Accommodation) Regulations 2014;
11SI No 2670. •the Mental Health (After-care under Supervision) Regulations 1996.
12SI No 294. 19.114Guidance is found in the English Code of Practice to the MHA 1983 and the Welsh Code of Practice to the MHA 1983.