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3.10 Care Act Amendments to Aftercare under the Mental Health Act 1983

CARE ACT 2014

The Act clarifies aftercare services provided under section 117 of the Mental Health Act 1983 to meet need arising from / related to a mental disorder of the person concerned. It aims to reduce the likelihood of deterioration in a person’s mental disorder (and therefore reduce risk of hospital admission for treatment).

RELEVANT CHAPTERS

Ordinary Residence

Direct Payments

Assessment

Choice of Accommodation and Additional Payments (Annex A in Charging and Financial Assessment)

1. Introduction

This chapter relates to Section 75 of the Care Act 2014 (the Act). It clarifies the meaning of aftercare and makes minor amendments to section 117 of the Mental Health Act 1983 (the 1983 Act). The changes remove anomalies in determining the responsible local authority in relation to the provision of aftercare services under the 1983 Act to people who have been detained in hospital for treatment of mental disorder and the provision of care and support services to which the Act applies. This section also inserts new section 117A into the 1983 Act. This allows regulations to be made which enable a person to express a preference for particular accommodation to be provided under section 117 (see Assessment and Choice of Accommodation and Additional Payments). Schedule 4 makes a number of modifications to the application of certain provisions of the Act to enable direct payments to continue to be made in respect of section 117 services (see Direct Payments).

The Act clarifies that local authorities may commission as well as provide section 117 services; a clinical commissioning group however, is under a duty to commission rather than provide section 117 services.

The Act applies the ordinary residence rules (see Ordinary Residence) to section 117 in order to avoid anomalies which can currently arise where one local authority is responsible for commissioning section 117 services whilst another commissions any other services a person may need. The Act applies consistent aftercare ordinary residence rules in England and Wales, in particular, in relation to which health body and local authority are responsible for commissioning aftercare services. One benefit of this is to empower the Secretary of State to resolve disputes as to which authority is liable to commission section 117 services, which could previously only be resolved through the courts. The Secretary of State and the Welsh Ministers will publish arrangements for determining cross border disputes.

The Act defines ‘aftercare services’ for the purposes of section 117. It makes clear that section 117 services must meet a need arising from or related to the person’s mental disorder. Additionally, the purpose of these services must be to reduce the risk of deterioration in the person’s mental condition and, accordingly, to reduce the risk of the person’s re-admission to hospital for treatment for mental disorder.

The definition of aftercare services is nevertheless broad. For example aftercare can encompass

  • health
  • social care and employment services
  • supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.

The Act provides that the changes to the commissioning responsibility will not apply where a person is already in receipt of section 117 services when these changes come into force. The current authority will remain responsible for commissioning those services for as long as the person concerned continues to need them.