Section 117 places a legal duty to provide health and social care support to an individual once they have left hospital. This duty falls on both the NHS and adult social care (via the local authority) who usually co-ordinate a joint package of care.
We support individual’s and family members in two important areas:
Transfer from section 2 to section 3 (Mental Health Act 1983).
For adults who lack mental capacity to consent to treatment decisions there are two options available to legally authorise their ongoing detention. Health professionals, having regard to the individual and the presentation of their illness, must choose between a section 3 detention (Mental Health Act 1983) or a Deprivation of Liberty Safeguard (DOLS) authorisation. The long-term effect of this choice for individual’s and their families are often felt most when it comes to arranging and paying for care. As we mentioned earlier, those detained under section 3 of the Mental Health Act 1983 are entitled to section 117 aftercare when they are discharged from hospital. This is NOT means tested and is arranged and paid for jointly by health and social care. Transfer onto the DOLS regime will lead to means testing, and, if a person has savings above £23,250 their family are often given information about longer term care and left to get on with arranging and paying for it. When you consider that care home costs can range from £600 - £1300+ per week, it is understandable that many family members would prefer the section 3 route.
David was detained under section 2 of the Mental Health Act 1983 following violent outbursts towards his home carers. He did not settle well on the ward, repeatedly refused to engage with staff members and tried to escape. A mental capacity assessment deemed that he did not have capacity to make decisions regarding his treatment or where he should live. At a multi-disciplinary meeting, it was proposed that he be transferred under the DOLS regime, however, representing David we successfully argued that he should be transferred to a section 3.
Disagreements about what should be funded by health and social care as part of the section 117 aftercare package.
Disputes about how much health and social should pay for a care package, and what that package should include, has been subject to many court cases. More recently, budget restrictions have led ‘caps’ on funding levels which mean it can be difficult to access the most suitable and appropriate care.
Rosa was detained under section 3 of the Mental Health Act 1983, when her anxiety and related behaviour spiralled, due to advancing dementia. Her son, Mark, acts as her attorney and following Rosa’s discharge to a local care home got into a dispute with the council about who should pay what. We represented Mark (as attorney for Rosa who sadly lacked the mental capacity at this time to participate in choosing where she would live) in discussions with the council to clarify their responsibilities and meet the full cost of Rosa’s care provision.
This is a complex area of law so please do not hesitate to contact a member of our team for more information on 01926 491181 or email firstname.lastname@example.org.
A final word about advocacy services…
Individuals detained in hospital under the Mental Health Act 1983 usually have a legal right to access free, independent advocacy. These services can enable you to access independent information and advice and offer support to ensure your views and wishes are heard. If you, or someone you care for, is in hospital for treatment of a mental health disorder, we strongly recommend that you access a local advocacy service (available at certain times on each ward).