Under Section 117 of the Mental Health Act 1983 (the "MHA"), Local Authorities ("LAs") and Clinical Commissioning Groups ("CCGs") have a joint duty to provide mental health aftercare services for people who have been detained in hospital for treatment under certain qualifying provisions of the MHA and who require it.
In recent years, legislation such as the Health and Social Care Act 2012 (the "HSCA"), the Care Act 2014 (the "Care Act"), and various regulations made and statutory guidance issued under these statutes have implemented substantial changes to the provision of and responsibility for s.117 aftercare services. Indeed, s.117 has been transformed from two simple paragraphs into a lengthy and complex section of the MHA.
In order to provide a detailed overview of the changes to s.117 aftercare services, Bevan Brittan will publish a series of articles addressing these important changes and their practical implications.
Our first article looked at what constitutes s.117 aftercare services. Our second article looked at who was financially responsible for s.117 aftercare services.
This article provides an overview of the law on what constitutes s.117 aftercare accommodation and also the recent changes, introduced by the Care Act, regarding patient choice for s.117 aftercare accommodation.
Understanding s.117 aftercare accommodation
Historically, two significant cases defined the criteria for when accommodation will form part of the s.117 aftercare package (these cases were decided based upon the statutory framework for s.117 prior to the Care Act coming into force).
In R (Mwanza) v Greenwich LBC and Bromley LBC  EWHC 1462 (Admin), the High Court held that accommodation is a "common need" for all people and that therefore, in order for accommodation to be an aftercare need it had to be "accommodation plus", i.e. specialist enhanced accommodation that meets a need that arises from a person's mental disorder. Essentially, the crux is that the person's need for accommodation is over and above every human being's common need for shelter and housing. This means that the accommodation needed to have additional features to it and that those additional features needed to arise from or meet a need from the person's mental disorder – over and above a need for basic shelter.
For example aftercare accommodation might include:
- residential accommodation that is specifically designed to care for the needs of a person who has been detained under s.3 MHA and who has left hospital; or
- caring residential accommodation (such as supported living) that provides intensive therapy and treatment or ensures concordance with medication.
That being said, it is important to distinguish between an aftercare need of a package of support from carers – which could be delivered in any accommodation (accommodation would not be aftercare) and actual specialist accommodation itself (could be aftercare).
The court was clear that just because a former patient is unemployed / homeless and that social situation may increase the chance of deterioration in mental condition, it does not require the CCG / LA responsible for s.117 aftercare to provide accommodation; although it may give rise to a need for assistance in gaining employment or housing.
In R (Afework) v Camden LBC  EWHC 1637 (Admin), the Court narrowed the scope of accommodation as s.117 aftercare further by stipulating that accommodation only constitutes s.117 aftercare if:
(i) The need for accommodation is a direct result of the reason that the patient was detained under the MHA; and
(ii) It is enhanced specialised accommodation to meet needs directly arising from the mental condition; and
(ii) The ex-patient is being placed in the accommodation on an involuntary basis (in the sense of being incapacitated) arising as a result of the mental condition.
We should note that this last condition is somewhat contentious amongst legal commentators. Essentially, it suggests that accommodation can only be an aftercare service, if the person lacks capacity to consent to be discharged to that accommodation. It implies that if a capacitated person consents to the accommodation, it cannot be s.117 aftercare.
The inclusion of an element of incapacitated compulsion in the provision of s.117 aftercare is an interesting development, and does not appear to be justified either by wider case-law authority or indeed the logic of the statutory s.117 provisions themselves. The decision in Afework was reached on the basis that the need for accommodation arose from a separate set of injuries caused by an assault and not from the mental health condition (i.e. the substance of the first two requirements). In light of this, and the fact that the third requirement appears inconsistent with the statutory scheme more generally, we take the view that the inclusion of the third requirement is technically not necessary for the Judge's decision. If followed, it would dramatically reduce the number of patients who might be eligible for accommodation as part of their s.117 aftercare. It is also inconsistent with the provisions of s.117A providing for choice on the part of the patient.
In our view, the assessment of whether or not accommodation is an aftercare need for a person should focus on the guidance provided in Mwanza and the first two requirements established in Afework.
Statutory Definition of Aftercare
In our first article, we discussed the new statutory definition of an aftercare service and noted that it increased the scope of what could constitute an aftercare service by including services "relating to" rather than directly "arising from" the mental disorder.
This increase in scope equally applies to accommodation as an aftercare service. This means that the guidance in Mwanza and the first two requirements established in Afework have to be read in light of the new statutory definition. Applying the new statutory definition in conjunction with the bespoke guidance from the caselaw, the test for accommodation as an aftercare need could be said to be:
- Patient requires specialist, enhanced accommodation – i.e. "accommodation-plus"; and
- That requirement arises from or is related to the patient's mental disorder for which he was detained under a Qualifying Detention; and
- The accommodation-plus reduces the risk of:
a. The patient's mental state deteriorating; and
b. The likelihood of the patient requiring re-admission to hospital for treatment of his mental disorder.
The introduction of patient choice for s.117 aftercare accommodation
Section 75 of the Care Act inserts a new s.117A into the MHA which permits the Secretary of State to make regulations that allow a s.117 patient to express a preference for a particular type of accommodation where the accommodation is being provided by a local authority discharging the s.117 duties.
The Secretary of State immediately exercised these powers, bringing the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 into force at the same time as the Care Act on 1 April 2015 (the "Choice Regulations"). Where accommodation is commissioned by a CCG under s.117, there is a more amorphous obligation under s.14V of the NHS Act 2006 to "act with a view to enabling patients to make choices with respect to aspects of health services provided to them" (as such, our view, is that CCGs should adopt a similar approach to the guidance contained within the Choice Regulations for consistency).
By way of context, it is important to note that the Choice Regulations apply to all types of accommodation commissioned by local authorities. They were not brought in force specifically for s.117 aftercare.
Regulation 4 enables an adult (aged 18 and over), who qualifies for care and support or s.117 aftercare, to express a preference for particular accommodation if the accommodation is of the following type:-
- Care home accommodation;
- Shared lives scheme accommodation; or
- Supported living accommodation
AND ALL OF the following conditions are met:
- The preferred accommodation is of the same type that the LA has decided to provide or arrange;
- It is suitable for the person’s needs (i.e. the needs identified in the CPA care plan);
- It is available;
- Where the accommodation is not provided by the LA, the provider of the accommodation agrees to provide the accommodation to the person on the LA’s terms; and
- Where the cost of the preferred accommodation is in excess of what the LA would expect to pay, the LA must be satisfied that the person being provided with accommodation is willing and able to make a top up payment for the additional cost and the payer enters into a written agreement with the LA to pay this additional cost.
In our view, given the approach in Mwanza and Afework, it seems unlikely that shared lives scheme accommodation would constitute an aftercare service; but it is possible that a specialised form of supported living might do so.
If the accommodation is of the above type and the above conditions are met, LAs ARE REQUIRED to provide / arrange the provision of the preferred accommodation.
Regulation 9 requires a LA to give written reasons for a refusal to provide or arrange for the provision of preferred accommodation.
If a person lacks capacity to express a choice for themselves, LAs should provide the choices expressed by the person's advocate, carer or legal guardian unless in the LA's opinion, it would be against the best interests of the person.
Where a LA is providing or arranging accommodation as part of s.117 aftercare, it is open to the person or their family to make top-up payments to secure their preferred accommodation.
The changes introduced by the Care Act influence how the case law interpretation of when accommodation will fall within s.117 aftercare should be read.
By allowing persons eligible for s.117 aftercare to express a preference for a certain type of accommodation and by requiring LA's to action this choice if top-up payments are made, the rights of patients eligible for s.117 aftercare services are broadly bought into line with the rights of any patient receiving care and treatment under the Care Act.
However, whilst patient choice can only be heralded as a good thing, in reality it is likely to require greater time and resources to be applied to proper s.117 aftercare planning. Due to limited housing options, it is likely that certain properties will be highly popular and patients may be left feeling dissatisfied if their preferred options are not available or are declared not suitable to meet their needs. The introduction of top-up payments may help remedy such problems and may in turn free up resources for those patients that are unable to pay, albeit the risk is that it may be perceived that patients who can afford to pay are accessing better aftercare services.
 Under s.3 (admission for treatment), s.37 (hospital order), s.45A (a hospital direction and limitation direction), s.47 (transfer from prison) and s.48 (transfer to hospital of prisoners on remand) if they are in need of such services.