Aftercare under Section 117 of the Mental Health Act 1983

Section 117 of the Mental Health Act 1983 requires Integrated Care Boards (ICB's) and local authorities, in co-operation with health and social care providers and voluntary agencies, to provide or arrange for the provision of aftercare to particular patients detained in hospital for treatment who then cease to be detained.

This includes patients granted leave of absence under section 17 and patients going on community treatment orders (CTOs). It applies to people of all ages including children and young people.

The sections of the Act to which this duty relates are all concerned with compulsory detention in a hospital:

• S3 deals with patients who are detained in hospital for treatment;
• S37 gives the magistrates' court or crown court a power to direct that a person will be detained in hospital either following conviction for an offence or on being satisfied that the person carried out the action that would have constituted the offence;
• S45A gives the higher courts a power to direct that a person convicted of an offence shall be detained in hospital instead of being detained in prison;
• S47 authorises the Secretary of State to direct that a person serving a prison sentence shall be detained in hospital;
• S48 authorises the Secretary of State to direct that a person who has been remanded to custody or detained under immigration legislation shall be detained in hospital.

Where eligible patients have remained in hospital informally after ceasing to be detained under the Act, they are still entitled to after care under S117 once they leave hospital. S117 does not apply to patients who have been detained in hospital under any other section of the Mental Health Act, for example S2, 4, 5(2), 135 or 136.

Whether or not a S117 of the Act applies, a young person who has been admitted to hospital for assessment and/or treatment may be a child in need and assessments and services should be provided as appropriate.

Section 117(3) provides that the responsible bodies will be those:

'if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which [they were] ordinarily resident'.

The interpretation of this provision has been the subject of case-law. In R (Worcestershire County Council) v SSHSC [2023] UKSC 31, the Supreme Court held that: 

1. A duty under section 117(2) to provide after-care services automatically ceases when the patient is detained again ('the second detention') for treatment under section 3 (or another provision specified in section 117(1) - a hospital order or direction under section 45A or a transfer direction under section 47 or 48) (but not a voluntary admission or an admission for assessment under section 2 Mental Health Act 1983);
2. Upon the second discharge (i.e discharge from the second detention), a new duty is placed on the local authority of the area in which the patient was ordinarily ordinarily resident immediately before the second detention;
3. The words 'is ordinarily resident' must be given their usual meaning, with the adaption where there is lack of capacity that the mental aspects of the Shah test (voluntary adoption and settled purpose) must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned. 
    
   In light of this ruling, it is anticipated that the government will provide updated guidance but, until such time, legal advice should continue to be sought as necessary.

After-care services are those which are required to meet an assessed need that arises from a person's mental health disorder and are aimed at reducing the risk of a deterioration of the patient's mental health condition and therefore minimising the need for future re-admissions to hospital.

The ultimate aim is to maintain the Child or young person in the community, with as few restrictions as are necessary, in place. Section 117 Aftercare is intended to provide sufficient support for an individual who has been compulsorily detained so that they can leave hospital and return to their home or other accommodation in a manner that minimises the risk of deterioration of their mental health and the chances of them needing further hospital admission for treatment.

ICB's and local authorities are required to interpret the definition of after-care broadly. Services should aim to support the person in regaining or enhancing their skills, or learning new skills, in order to cope with life outside of hospital.

After-care can include healthcare, medical supervision, psychological and psychiatric support, social work support, education, accommodation and wider services to meet the person's social, cultural and spiritual needs, where these services meet a need that arises directly from or is related to the patient's mental health disorder, and will help to reduce the risk of a further deterioration in the patient's mental health.

Consideration will also need to be given to how after-care services integrates with any existing provision made for Cared For children, those with special educational needs or disabilities, ensures safeguards are in place to protect vulnerable children and those subject to YOS interventions.

Although the duty to provide aftercare services begins when the child or young person leaves hospital, planning should start as soon as possible after the child or young person is admitted to hospital. Following admission to hospital we would expect the provider or NHSE alert the Local Authority and relevant ICB to the admission and to ensure they are invited to the 5 day admission meeting. If the CYP is not already open to Childrens Social Care, a referral via the safeguarding hub should be made at the earliest opportunity. This will ensure appropriate focus on the child's current needs and the state of planning around the discharge.

Where a case is referred to Children's Social Care and accepted, a child and family assessment should commence at the point that a child or young person is compulsory detained in hospital. This assessment should determine whether there are any ongoing social care needs both whilst the young person is in hospital and also when they are discharged. The social worker should discuss with health professionals how and when the young person's needs for after-care will be assessed and the arrangements for identifying appropriate services to address these needs.

After-care planning should involve the young person, parent/carer (if the young person is over 16 they need to consent to this) and a number of medical, health and social work practitioners involved which may include the allocated local authority social worker, allocated CYPMHS worker, allocated named community psychiatrist, hospital social worker, hospital treating psychiatrist, GP and may include ICB, NHS England education provider, YOS, school nurse, housing and allocated CYPMHS social worker.

When considering s117 aftercare the child or young person's views, wishes and feelings should always be sought, their views taken seriously and professionals should work with them collaboratively. The child and young person should be fully informed throughout the process.

The duty to provide after-care services continues as long as the patient is in need of such services. In the case of a patient on a Community Treatment Order (CTO), after-care must be provided for the entire period they are on the CTO, and continue past this if needed.

Services must only be ceased when both the ICB and the local authority are satisfied that the patient no longer requires them. It is important that the young person and their carer/advocate are involved in this decision making process.

After-care services under S117 should not be withdrawn solely on the grounds that;

• The patient has been discharged from specialist mental health services;
• An arbitrary period has passed since the care was first provided;
• The patient is deprived of their liberty under the Mental Health Act 3;
• The patient has returned to hospital informally;
• The patient is no longer on a CTO or S17 (Mental Health Act) leave.

After-care services should be reinstated if it becomes apparent that the services have been withdrawn prematurely.

Services should be provided for as long as they are required to prevent a relapse or further deterioration in the child's or young person's mental health. Young people can refuse after-care services but any decision to refuse them should be fully informed. If they initially refuse services but then subsequently change their mind S117 services should be provided.

It is important that section 117 after-care is effectively managed and delivered to improve the outcomes for the child/young person, carers and families. The care programme approach (CPA) is an overarching system for coordinating the care of people with mental health disorders

At the point that a young person is compulsory detained in hospital a child and family assessment should be undertaken.

Where a child is open and has recently had an assessment, the assessment should be updated to include the relevant information in respect of the mental health concerns. This assessment should include the following considerations;

• Background history and impact upon child's emotional wellbeing and mental health needs;
• Continuing mental healthcare needs;
• The psychological needs of the young person and of their family;
• Physical healthcare;
• Any specific needs arising from, for example, co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder;
• Education, training or employment;
• Appropriate accommodation; If the aftercare plan includes the provision of accommodation, and the young person has committed one or more criminal offences, the circumstances of any victims of the offence(s) and of their families should be taken into account when deciding where the young person should live;
• Identified risks and protective factors;
• Any specific needs arising from drug, alcohol or substance misuse;
• Parenting capacity of parent/carer;
• Social, cultural or spiritual needs;
• Counselling and personal support;
• Assistance in welfare rights, managing finances and independence skills (if appropriate);
• The involvement of authorities and agencies in a different area, if the young person is not going to live locally;
• The involvement of other agencies, for example the probation service, YOS or voluntary organisations;
• Any conditions likely to be imposed by the Secretary of State for Justice or the Tribunal
• Contingency plans (should the young person's mental health deteriorate); and
• Any assessed social care needs.

All assessments should be informed by the views of the child/young person, parents/carers and involved professionals.

Assessments must clearly identify any assessed social care needs for the child/ young person. Whilst the majority of young people detained in hospital will have identified social care needs there may be a small number of young people whose only needs relate to their mental health and emotional wellbeing. Whilst this doesn't take away from the local authority's duty to contribute to S117 planning it will be an important consideration when identifying the care coordinator and the provision and funding of services. This assessment will contribute to the Care Programme Approach (CPA) planning.

There is an expectation that the hospital in-patient lead clinician will arrange with the community CYPMHS team and Social Care a meeting within 14 working days of admission. This meeting will address the allocation of roles and responsibilities for ongoing care coordination and in-patient care, community CYPMHS and social care support and the initial discharge planning will commence. Consideration should be given to how long the young person is likely to be detained and how and when the young person's needs for aftercare will be assessed and the arrangements for identifying appropriate services to address these needs. A care coordinator should be identified at this meeting.

The care coordinator from the most appropriate statutory agency must be appointed to pull together the care plan, monitor the care plans implementation, liaise and coordinate and review the implementation of this plan. They must also report any problems to their managers that arise that cannot be resolved through discussion. The care coordinator must be in a position to be able to ensure the appropriate provision and coordination of services is in place including liaising with relevant senior managers.

If no contact has been received from the hospital within 7 days of admission then contact must be made to ascertain the arrangements for this meeting. During the first meeting it should be confirmed that all contributors to the care planning process are aware of the patients S117 status and their agency statutory responsibilities in relation to this status (as set out in this procedure).

The patient's needs should be considered and a CPA care plan should be formulated. All the patients' needs should be considered carefully, identifying those needs which should be met under S117 and those that should be met under existing or additional plans (CIN, CP, Care plans).

The CPA care plan should clearly identify the name of the care coordinator and the services which are to be provided under S117 with clear timescales for the implementation of key actions and the identification of people with specific roles and responsibilities, as well as those services to be provided outside of S117.

The Section 117 review form should be completed after every review. Included within a CPA care plan are:

• A treatment plan which details medical, nursing, psychological and other therapeutic support for the purpose of meeting individuals needs promoting recovery and/or relapse;
• Details regarding any prescribed medications;
• Details to address any physical health problems or reduce the likelihood of health inequalities;
• Details of how the patient will meet their personal goals;
• Support to be provided in relation to social needs including housing, education, finances etc.;
• Support to be provided to carers;
• Actions to be taken to prevent a deterioration of a patients presentation;
• Actions to be taken in the event of a crisis;
• Any support to be provided outside of S117 to meet the child's and young person's wider assessed needs.

The CPA care plan should set out the practicalities of how the patient will receive treatment, care and services. The care plan should be set out in writing and a copy should be given to the patient, parents/carers and all involved professionals including the GP. It is the responsibility of the care coordinator to oversee the implementation of this plan and to arrange regular review meetings once the CYP is discharged from hospital.

It is important to ensure that assessments are completed in a timely manner, assessed needs identified and decisions regarding the provision of services in place. If these are likely to involve the accommodation of a child or young person into local authority care or the provision of an expensive placement then permissions must be sought at the earliest opportunity and prior to the child's/young person's discharge or any mental health tribunals. (See section: if a child needs to be accommodated)

A child's or young person's discharge should not delayed by the seeking of appropriate permissions. The case should remain open through the duration of the child's or young person's detention in hospital, through the provision of S117 services and should only cease when S117 planning has ended and there is no ongoing role for children's social care. Local authorities should make arrangements to provide suitable education for all children and young people of compulsory school age. Children and young people who are admitted to hospital should have access to education that is on par with their mainstream education provision. Social workers should ensure that the young person is receiving education. If the young person is not, contact should be made with the education welfare service.

The CPA care plan should be reviewed on a regular basis. It will be the responsibility of the care coordinator to arrange reviews of the plan until it is agreed between all parties, including the young person that it is no longer required.

The review meeting should give consideration to:

• S117 needs identified in the CPA care plan and whether these needs have been met/continue to exist;
• Consideration to whether any additional S117 needs have been identified;
• Ensure all present have opportunity to contribute to discussion around on going care needs;
• Any additional care needs not subject to S117 should be recorded and addressed in the CPA care plan;
• The CPA care plan should be updated as appropriate;
• Where all professionals in attendance agree that the patients S117 needs have been satisfactorily met, this needs to be clearly evidenced and documented along with the decision to discharge the patient from S117;
• The young person may require ongoing support for assessed needs outside of S117 services;
• All review meetings must be clearly documented and care plans updated;
• Where a young person or their representative doesn't agree with the decision to discharge from S117, they should be advised of their right to appeal the decision and their views and supported information recorded. The care coordinator should support the young person with the process.

Local authorities should ensure that they arrange visits to see children in hospital who are Children and young people accommodated or intended to be accommodated for three months or more by NHS funded providers.

Local authorities should consider, in the circumstances outlined above whether financial assistance should be provided to families to enable them to visit children and young people placed in hospital. Such duties arise when children and young people are Cared For or who have been detained for three months or more.

Where a young person is a Cared for Child under section 31 of the 1989 Children Act, they will continue to be so, whilst they are detained under the mental health act. They will continue to have a social worker and will be subject to all the statutory arrangements that are in place for Children in Care (CIC).

In particular, they will continue to have a care plan and will be subject to statutory reviews. It will be important for these reviews to be informed by the CPA reviews. When a CIC young person is discharged from hospital, the local authority will continue to have responsibility for them and for their accommodation. If the placement is joint funded with the ICB outside of s117 aftercare, these arrangements should remain in place.

Where specialist accommodation is required due to their mental health needs this should be included in the 117 aftercare plan and presented at Complex Needs Panel to establish joint funding arrangements. It will be crucial for the support that will be co-ordinated via the CPA process with the support that will be offered to the young person through their legal status as a CIC young person. The social worker must keep the IRO up to date with all significant matters.

Where a young person is Cared For under section 20 of the 1989 Act (usually referred to a voluntary accommodation) they will lose their CIC status when they are detained under the Mental Health Act.

The social worker must ensure that the discharge is conducted in line with council policies and statutory requirements, e.g. Care planning meeting, Statutory Review and DCS sign off if the young person is 16 or 17.

However, the Local Authority will continue to need to keep in contact with the young person and this will normally be done by the social worker who was previously working with the young person.

Where a young person is Care Experienced, they will continue to have support under the Leaving Care Act. This will mean that they will continue to have a Personal Advisor and a Pathway Plan. The duties of the local authority towards care experienced adults may be more limited than they are for CIC depending on their leaving care status.

In particular there is no duty on the local authority to provide accommodation for former relevant or qualifying young people. It will be important that the CPA and Pathway Plan link, but that the CPA reflects the more limited role of the Pathway Plan.

There are specifics responsibilities for YOS staff relating to young people transferred back to custody or released from hospital whilst still subject to a Licence/Notice of supervision to YOS. Please refer to the link NHS England » Transfer guidance under Mental Health Act 1983 for children detained on youth justice and welfare grounds

Where a child or young person is detained and they have either a learning disability and/ or autism they will require a Care, Education and Treatment review, which will be arranged by NHS England or an individual from the responsible ICB.

Care, Education and Treatment Reviews will support the individual and their family to have a voice and will support the team around them to work together with the person and their family to support a discharge into the community.

Where resources and support are not in place to facilitate someone's discharge, the reviews will make clear recommendations on what needs to be done to get to the point of a safe discharge, where appropriate. Each review will be led by the local commissioner responsible for the person's care and treatment, supported by an “expert by experience” and a clinician. The “experts by experience” will be people with learning disabilities or family carers who have experience of inpatient admission, or of supporting people who present challenges to live safely in the community. It is important that commissioners (or their delegates) who are to be responsible for the care of the reviewee following discharge, are involved in the review process, including local authority commissioners where this applies.

Children and young people with special educational needs or disabilities who are detained within Tier 4 provision may have, or may need an education, health and care plan (EHC) as a result of their special education needs. Where young people are undergoing an EHC assessment at the time of admission into Tier 4, consideration should be given to coordinating the EHC meetings with those of the CPA or CTR to avoid duplication for families and practitioners.

If a young person cannot go home and requires accommodation as part of the discharge from hospital, the normal case directions (legal Gateway) procedure must be followed. If agreement is given by the Senior Manager/AD and if there are funding implications the case will then be discussed with the ICB and presented to the Complex Needs Panel for joint funding arrangements.

Local Authorities and ICB's have a joint responsibility for the funding of agreed s117 aftercare services that are over and above those that can be provided by Core Commissioned Services.

This does not necessarily mean the cost of these services will be shared equally between the local authority and ICB. The allocation of costs will depend on the specific aftercare services the person needs. To ensure an eligible CYP receives the free aftercare services they need, it is important to establish which council and ICB hold the statutory duty for that person.

For local authorities the responsible local council is the one in which the person was 'ordinarily resident' immediately before they were detained under the Mental Health Act.

To establish the responsible ICB, guidance can be found within the Who Pays document.

At every CPA meeting, consideration must be given as to whether any Section 117 responsibilities require specific funding, including accommodation.

For cases in Westmorland & Furness (Barrow, Kendal & Eden), any additional services that require s117 funding should be discussed with responsible commissioners within the ICB and then presented to the Complex Needs Panel for ratification. In most instances, services will be joint funded on a 50/50 split but this should be discussed on a case by case basis.

For cases in South Cumbria, discussions around additionally funded services should be discussed with the Clinical Support Unit (CSU) and where necessary the ICB. These cases will then be ratified at the IPA eligibility panel.

A tribunal is an independent judicial body which reviews cases of detained and conditionally discharged patients and patients subject to CTO's under the Act. The tribunal will direct the discharge of any patient where it thinks it is appropriate. The tribunal will give due consideration to the young person's wishes and feelings and medical condition. It is for those who believe that a patient should continue to be detained or remain a community patient to prove their case. Not for the patient to disprove it. Clinical and Social Circumstances Reports are essential to the effective running of the tribunal.

Tribunals usually take place because a young person appeals against their section. The outcome of tribunals vary but include the following, remain on section, power to discharge a young person from their section, recommend home leave, recommend supervised community treatment instead of staying in hospital (CTO), decide on delayed discharge or conditional discharge, transfer to another hospital (or mental health facility), arrange another meeting if their recommendations are not followed.

However, the hospital is not legally obliged to follow their recommendations. It is the expectation that the allocated social worker attends every tribunal and presents a Social Circumstances Report. (See Below)

It is a statutory duty on the local authority to provide a report to the tribunal. All young people who have not had tribunal for 12 months who meet the criteria for one will be automatically referred for a tribunal to take place.

A tribunal must consist of; a legal member (usually a solicitor or a barrister), a doctor (usually a psychiatrist), and a lay member (a person who is not medically or legally trained) with some mental health experience, the young person, parent (s) or carers and the responsible clinician.

The tribunal will consider a range of evidence and information provided by all involved. A main consideration will be what support, risks and protective factors are in place should the young person be discharged that day.

The tribunal will make reference to a social circumstances report prepared specifically for the case. Where possible a CPA planning meeting should take place prior to the tribunal to ensure that appropriate discharge planning arrangements are in place should the tribunal direct the discharge of the young person.

The social circumstances report should provide the tribunal with an up to date overview of the young person's situation and should take account of the views of the young person, family, the wider multi-disciplinary team and relevant others. Information provided in the social circumstances report must always be attributed to source.

This may prompt the tribunal to request additional information from or attendance of individuals/sources at the hearing. The Social Circumstance Report must be up-to-date and specifically prepared for the tribunal.

It should include full details of the following:

• The young person's home and family circumstances;
• The names and addresses of any individuals with parental responsibility, and how they acquired parental responsibility;
• So far as it is practicable, the view of any person who plays a substantial part in the care of the young person but is not professionally concerned with it;
• The views of the young person, including their concerns, hopes and beliefs in relation to the tribunal proceedings and their outcome;
• The opportunities for education/training/employment and the housing facilities available to the young person;
• What community support is or will be made available to the young person and its effectiveness. This would involve Community CYPMHS but could also include cooperative working or primary mental health services.
• The families financial circumstances (including entitlement to benefits);
• An assessment of the young person's strengths and any other positive factors that the tribunal should be aware of in coming to a view on whether the young person should be absolutely discharged;
• An assessment of the extent to which the young person or other persons would be likely to be at risk if the young person were to be absolutely discharged by the tribunal, and how any such risks could best be managed.

The transition from children to adult services can be a difficult time for young people. This is often compounded by many other changes in a young person's life, including: transitions from school to further/higher education or employment; changes in self-identity and relationships and changes which arise from the shift from childhood to adulthood. This can result in uncertainty, anxiety and stress. It is important that any required transition process is managed sensitively and collaboratively to ensure there is continued support and engagement of the young person and their parents /carers

Arrangements should be made to involve respective adult health and children's social care services in line with relevant agency transition policies. Whilst these may slightly differ between agencies, the general agreement for s.117 is that adult services should be notified once a young person reaches 17.5 years of age or above before their 18th birthday.

Legislation, Statutory and Government Non-Statutory Guidance

Mental Health Act 1983: Code of Practice Chapter 33 After-care and Chapter 34 Care Programme Approach

Good Practice Guidance

Section 117 Aftercare: Guidance for Practitioners (Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman)

Who Pays?

Self-harm: Assessment, Management and Preventing Recurrence NICE Guidance