14th May 2014, the Care Bill received the Royal Assent and as such the Care Bill became the Care Act 2014. The Care Act 2014 consolidates, streamlines and codifies over 60 years of patchwork legislation in Adult Social Care. The Care Act attempts to bring together the Law Commission’s recommendations on Adult Social Care and to implement the changes suggested by the Dilnot Commission on Funding of Care and Support.
In this article, I will specifically focus on the changes being made to section 117 of the Mental Health Act 1983 (MHA) by section 75 of the Care Act 2014. Section 75 makes 3 fundamental changes to S.117 as detailed below.
Definition of “after care services”
Section 117 of the MHA 1983 requires local authorities and CCGs jointly to provide “after care services” to patients upon their discharge from hospital, but the Mental Health Act 1983 (as amended) does not define what “after care services” are. The Courts, including the House of Lords, have been asked numerous times to provide a definition.
Most recently, in the case of R (Afework) v London Borough of Camden  EWHC 1637 (Admin), Mostyn J was asked to consider whether a mere roof of the head could, without more, fall within the definition, but decided that it could not. He observed that the linking of the word “after” with “care” meant that the services in question must be consequential to the detention in hospital and relate to the reason for the detention in the hospital. S.117 would only require accommodation to be provided where: (i) the need for accommodation is a direct result of the reason that the ex-patient was detained in the first place; (ii) the requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) the ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.
The Care Act amends s.117 MHA 1983 and will for the first time provide a definition of what comprises “after care services”. It modifies the first two of Mostyn J’s requirements and, notably, does away with the third all together. It now defines “after care services” as services which (i) meet a need arising from or related to the person’s mental disorder; and (ii) reduce 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 the disorder).
Another major change to s.117 is in respect of ordinary residence. Currently section 117 allocates responsibility to the local authority or NHS Trust by determining where the discharged patient is “resident”.
The new provisions amend the position so that responsibility is given to the local authority in which the person was “ordinarily resident” immediately prior to being detained. Ordinary residence will be determined in accordance with the usual Ordinary Residence Guidance, with any disputes arising to be determined by the Secretary of State.
Choice of Accommodation (Section 75 (6)) The last major change to after-care services is that by a new s.117A the Secretary of State is empowered to make Regulations requiring a local authority to comply with a preference by P for particular accommodation, with P paying a top-up fee if the preferred accommodation is more than the authority’s usual cost. In discharging the s.117 duty, the Council is permitted to provide the person with direct payments.
This is a welcome change and brings the position into line with the current s.21 National Assistance Act 1948 and National Assistance (Choice of Accommodation) Directions 1992. On the other hand, local authorities who are increasingly dealing with litigation over the issue of preferred accommodation pursuant to s.21 may now see similar challenges arising under s.117.
Until now, the current practice for most local authorities has been to delegate their mental health duties to the mental health teams within the hospital trust. But they have been prohibited by statute from delegating their duties in respect of financial assessments and P’s contribution (s.22 National Assistance Act 1948). As a result, mental health teams have not had responsibility of P’s direct payments or personal budgets. With the proposed change, these teams will now need to ensure that they are trained to be able to deal with this.
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