Clinical Section 117 Aftercare Policy Shropshire / Telford and Wrekin Document Control Summary Status: Version: Author/Owner: Approved by: Ratified: Related Trust Strategy and/or Strategic Aims Implementation Date: Review Date: Key Words: Associated Policy or Standard Operating Procedures Replacement Replaces C/YEL/mh&ca/01 e.g. v1.0 Date: 20.10.2016 Policy and Procedures Committee Date: Date approved Trust Board Date: Date ratified Provide high quality recovery focused services. Deliver regulatory, financial, performance and quality standards 3 years from ratification Mental Health Act (MHA), Code of Practice, Section, Detention, Formal, Informal, CPA. SOP Section 117 Aftercare: Acceptance; Review; Discharge 1
Contents 1. Introduction... 3 2. Purpose... 3 3. Scope... 4 5. Responsible Authority... 4 6. Qualifying patients... 5 7. Funding and NHS Continuing Healthcare..5 8. Funding of Aftercare Plans.. 6 9. Disputes 7 10. Funding Reviews.8 11. Statement of procedures and guidance.8 12. Management of and authority to accept or discharge section 117 8 13. Transfer of section 117 responsibilities..9 14. Process For Monitoring Compliance And Effectiveness... 10 15. References... 10 2
1. Introduction 1.1 Section 117 of the Mental Health Act 1983 (as amended by the Mental Health Act 2007) (MHA) places a joint legal duty on Clinical Commissioning Groups (CCGs and local social services authorities (LSSAs) to provide (or arrange for the provision) of aftercare for certain patients who have been detained under specified sections of the Mental Health Act 1983 once they leave hospital. These bodies are known collectively as the responsible aftercare bodies. 1.2 Shropshire Council, Telford and Wrekin Council, Shropshire CCG and Telford and Wrekin CCG, in conjunction with South Staffordshire and Shropshire Foundation NHS Trust, Shropshire Community NHS Trust or other designated providers should provide such services in co-operation with the relevant voluntary agencies. 1.3 The responsible aftercare bodies are required to provide (or arrange for the provision of) aftercare services in co-operation with relevant voluntary agencies (section 117(1)). They may commission services from other people and organisations as well as (or instead of) providing services themselves. It may also be possible to provide a direct payment to the patient for aftercare services. 1.4 Chapter 33 of the MHA Code of Practice, and chapter 29 of the MHA Reference Guide contain further guidance. 1.5 This policy supersedes those detailed on the cover page to this document and must be read in conjunction with the statutory references at 15 below and associated Standing Operating Procedures on the Document Control Summary on the front pages of this document. 1.6 Standard Operating Procedures will be developed by partner CCGs and Councils relating to points 7 to 10 below in due course. 2. Purpose 2.1 Aftercare can be a vital component in patients overall treatment and care. As well as meeting immediate applicable needs for health and social care, aftercare should aim to support them in regaining or enhancing their skills, or learning new skills in order to cope with life outside hospital (MHA Code of Practice (33.5) 2015). It is therefore important that section 117 aftercare is effectively managed and delivered to improve the outcomes for service users, carers and families. 2.2 The purpose of this document is to support staff of partner agencies in the effective implementation of section 117 of the MHA, and in doing so, treating patients in accordance with legal requirements and maintaining their rights. 3
3. Scope 3.1 This policy relates to all staff from partner agencies detailed below responsible for and/or working with patients with section 117 entitlement, including those in support functions. It also informs staff from other agencies involved in the care and treatment of patients. All staff caring for patients should be familiar with the requirements of the MHA and related documents. They must pay due regard to the MHA Code of Practice, apply the Code s 5 Guiding Principles when carrying out their work, and ensure they keep up to date with MHA practice commensurate with their role. 3.2 Specifically this document relates to the following organisations: 3.2.1 Shropshire Council and Telford and Wrekin Council Both Councils have the status of responsible aftercare body and are required to provide (or arrange for the provision of) aftercare services for patients as per 5.1 below. 3.2.2 Shropshire CCG and Telford and Wrekin CCG Both CCGs have the status of responsible aftercare body and are required to arrange for the provision of aftercare services for patients as per 5.2 below. 3.2.3 South Staffordshire and Shropshire Healthcare NHS Foundation Trust (SSSFT) Is the designated provider of aftercare services for eligible patients within the Shropshire and Telford and Wrekin areas. 3.3.4 Shropshire Community NHS Trust Is the designated provider of aftercare services for eligible children and young people within the Shropshire and Telford and Wrekin areas. 4. Definition 4.1 Section 117(6) of the MHA (as amended by the Care Act 2014) defines aftercare services as services which: a. Meet a need arising from or relating to the persons mental disorder; and b. Reduce the risk of a deterioration of the persons mental condition (and accordingly reducing the risk of the person requiring admission to hospital again for treatment for the disorder) 4.2 This means that the aftercare may relate to a different mental disorder other than the one for which the patient was originally detained. 5. Responsible Authority 5.1 The duty to provide Section 117 services is a joint duty of the relevant CCG and the LSSA. The MHA (as amended by the Care Act 2014) sets out how to ascertain the relevant LSSA and CCG (see section 117(3)) and this is based on ordinarily resident. 4
5.2 The relevant responsible CCG and LSSA are those for: 5.2.1 (in England and Wales) the area in which the person was ordinarily resident immediately before being detained; 5.2.2 if the person was not ordinarily resident in England or Wales immediately before being detained, the area in which the person is resident or to which they are sent on discharge by the hospital in which they were detained. 6. Qualifying patients 6.1 Patients who have been detained in hospital for treatment under section 3, 37, 45A, 47 or 48 of the MHA are entitled to the provisions of section 117. This includes those granted leave of absence under section 17 and patients on Community Treatment Orders (CTO) and those conditionally discharged. (Reference Guide 29.5 29.6) 6.2 The duty to provide aftercare services continues as long as the person is in need of such services. In the case of a patient on CTO, aftercare must be provided for the entire period they are on CTO, but this does not mean that their need for aftercare will necessarily cease as soon as they are no longer on CTO (33.6 MHA Code of Practice 2015). 6.3 Where eligible patients have remained in hospital informally after ceasing to be detained under the MHA, they are still entitled to aftercare under section 117. 6.4 Eligible patients are under no obligation to accept the aftercare services they are offered, but any decisions they may make to decline them should be fully informed. An unwillingness to accept services does not mean that the individual does not need to receive services, nor should it preclude them from receiving services later under section 117 should they change their minds. Where a patient disengages with services or refuses to accept aftercare services, the entitlement does not automatically lapse and the care team should ensure that needs and risks are reviewed and, where possible, communicated to the person. 7. Funding and NHS Continuing Healthcare 7.1 There is no specific guidance within the Mental Health Act regarding the apportionment of funding between the LSSA and the CCGs. CCGs and LSSAs are expected to establish a jointly agreed policy for deciding on section 117 services and who should fund what. This Policy sets out that understanding for its signatories. 7.2 Responsibility for the provision of section 117 services lies jointly with LSSA and the CCGs. Where a patient is eligible for services under section 117 these should be provided under section 117 and not under NHS continuing healthcare (NHS CHC). It is important for CCGs to be clear in each case whether the individual s needs (or in some cases which elements of the individual s needs) are being funded under section 117, 5
NHS CHC or any other powers, irrespective of which budget is used to fund those services. 7.3 There are no powers to charge for services provided under section 117, regardless of whether they are provided by the NHS or LSSA. Accordingly, the question of whether services should be free NHS services (rather than potentially charged-for social services) does not arise in respect of section 117 aftercare services. It is not, therefore, necessary to assess eligibility for NHS CHC if all the services in question are to be provided as after-care services under section 117. However, a person in receipt of aftercare services under section 117 may also have ongoing care/support needs that are not related to their mental disorder and that may, therefore, not fall within the scope of section 117. Also a person may be receiving services under section 117 and then develop separate physical health needs (e.g. through a stroke) which may then trigger the need to consider NHS CHC only in relation to these separate needs. 7.4 This means that funding responsibility is determined by the primary need of the individual and the nature of the services provided. Please see paragraph 8.1.1 below for further agreement and clarification on the interface between section 117 funding and NHS CHC. 8. Funding of Aftercare Plans 8.1 There are several funding frameworks to be considered for services when a person leaves hospital to live in the community. The CCG s and LSSA s agreed understanding of these frameworks and their relationship to section 117 is outlined below: 8.1.1 NHS Continuing Healthcare (NHS CHC) Where a patient is eligible for services under section 117 these should be provided under section 117 and not under NHS continuing healthcare. NHS CHC is arranged and funded solely by the NHS to meet a primary health need. The actual services provided as part of that package should be seen in the wider context of best practice and service development for each service user group. Eligibility for NHS CHC places no limits on the settings in which the package of support can be offered or on the type of service delivery. A person in receipt of after-care services under section 117 may also have needs for continuing healthcare that are not related to their mental disorder and that may, therefore, not fall within the scope of section 117. The CHC assessment and decision process should be completed to ensure the person s eligibility has been considered. The parties to this policy agree therefore that where a patient is entitled to section 117 services, and those services would be properly described as a healthcare need then the appropriate CCG shall be responsible for the provision and funding of those healthcare section 117 services. Accordingly, where a section 117 service would be properly described as a social care need then the LSSA shall be responsible for 6
the provision and funding of those section 117 social care services. The reasoning for this is that the LSSA does not have the power, legally, to provide/fund healthcare. To avoid doubt in regard to the above, the parties acknowledge that section 117 obligations are a joint duty and that section 117 services are not the automatic sole responsibility of the LSSA or the relevant CCG. For clarification, where a patient has health needs that are not assessed section 117 needs, such health needs may still be eligible for NHS CHC notwithstanding that some of the person s needs are provided for by section 117 services. In other words, having some section 117 needs does not exclude the patient from receiving other health and social care services under NHS CHC. 8.1.2 NHS Funded Nursing Care (NHS FNC) Services provided under this framework are free at the point of delivery, and are a set weekly amount paid to a care home with nursing for the nursing element of a placement. Funding is accessed via a specific assessment provided by the CCG. NHS FNC may be paid in respect of placements that meet mental health need and services other than those designed to meet mental health needs. 8.1.3 Local Authority Services - The Care and Support Planning Process An assessment to determine eligibility for care and support, some of which may relate to a person s mental health and some which might not will need to be undertaken. Services that are arranged to meet mental health needs may be section 117 aftercare services, and these would be exempt from charges. Services associated with other needs, such as physical health or disability, are not subject to section 117, so they may be subject to financial assessment and charges may apply. 8.1.4 Section 117 People whose services are section 117 aftercare services will not be financially assessed or charged by the LSSA and the cost of these services will be met by the CCG and LSSA as agreed between the LSSA and the CCG in each individual case. Only individual services identified as such within the aftercare plan will be considered to be section 117 services In summary: The CCG and LSSA agree that section 117 only applies to services required by the person to meet their assessed section 117 needs, and that in some cases more than one funding arrangement may combine to fund the aftercare plan. Services arranged as section 117 aftercare services will be funded on a proportional split based on the individuals needs as assessed by the CCG and LSSA. 9. Disputes 9.1 Where there is a dispute between local authorities regarding where the patient was ordinarily resident before being detained, this will be determined by the process set out 7
by the Care and Support (Disputes Between Local Authorities) Regulations 2014 (SI 2014/2820). 9.2 Where there is a dispute regarding funding and/or commissioning authority the jointly agreed NHS and Social Care CHC disputes resolution process will be followed, including the provision of without prejudice funding by the authority with the primary duty of care at the time, pending resolution of the dispute and if neither is currently funding or prepared to fund, this should be on a 50/50 basis between the LSSA and the CCG. This will avoid funding disputes detrimentally affecting an individual s care or causing undue delay in discharging someone from hospital. 10. Funding Reviews 10.1 Neither the CCG nor an LSSA should unilaterally withdraw from an existing funding arrangement without a joint reassessment of the individual, and without first consulting one another and informing the person about the proposed change of arrangement. Any proposed change should be put in writing to the person by the organisation that is proposing to make such a change. If agreement cannot be reached on the proposed change, the local disputes procedure should be invoked, and current funding arrangements should remain in place until the dispute has been resolved. 11. Statement of procedures and guidance 11.1 Guidelines in respect of procedures and implementation of Section 117 aftercare are contained in the Section 117 Aftercare: Acceptance; Review; Discharge SOP that accompanies this policy. 12. Management of and authority to accept or discharge section 117 12.1 Acceptance of and discharges from section 117 have to be accepted by representatives from both agencies, Health (Trust on behalf of CCG) and LSSA, and joint agreement between those with the authority to agree discharge. 12.2 LSSA 12.2.1 Where a person is known to have an entitlement to aftercare services, the social worker/named worker should discuss and agree the section 117 responsibilities with their line manager in advance of all care meetings. If the issues about accepting/discharging section 117 are clear (e.g. accepting not continuing health care; discharging the services are no longer related to the hospital admission) then the social worker/care co-ordinator can accept/discharge the section 117 responsibilities on behalf of the LSSA in the meeting. 12.2.2 Normally this power is delegated on behalf of the LSSA. If the issues are not clear, then the line manager should be invited to attend the integrated CPA meeting and take responsibility for accepting/discharging section 117. 8
12.3 Health 12.3.1 The consultant psychiatrist/approved clinician/care coordinator has overall responsibility for accepting/discharging section 117 on behalf of the CCG. 12.3.2 The consultant psychiatrist/approved clinician/care coordinator should attend the CPA meeting and take responsibility for accepting/discharging section 117 on behalf of the CCG when discharge from section 117 is being proposed. 12.4 Where there is a dispute about accepting/discharging section 117, provision of care to the service user must continue until the dispute is resolved. 12.5 Where agreement cannot be reached within a CPA meeting, the issues should be taken to senior management in the LSSA and to the appropriate lead clinician/team manager within the mental health service provider or the decision may be referred to the joint funding panel, where there are senior representatives from the Health provider, LSSA and the CCG. 12.6 If users and/or carers disagree with decisions, they may go through the complaints procedures for the relevant health or social services organisation. These generally contain options for resolution, including access to independent review and/or external scrutiny. 13. Transfer of section 117 responsibilities 13.1 From 1 April 2016, Who Pays guidance applies as follows: 13.1.1 where a patient who is resident in CCG A s area is discharged to CCG B s area, CCG A will retain responsibility to pay for the patient s aftercare along with the relevant local authority 13.1.2 CCG A will continue to be responsible for the patient s s.117 aftercare even where the patient is subsequently readmitted or recalled to hospital (except where the admission is into specialised commissioned services) 13.1.3 for the avoidance of doubt, the Guidance states that CCG A would remain responsible for the NHS contribution to their subsequent aftercare under s.117 MHA, even where the person changes their GP practice (and associated CCG) i.e. s.117 patients are now an exception to the general rule that the responsible CCG commissioner is determined by registration with a GP or, if unregistered, by usual residence. 13.1.4 The guidance is not intended to have retrospective effect, and so should only apply to those patients where the s.117 duty under the MHA arises (i.e. the patient is discharged from detention under the MHA) after 1 April 2016. 13.2 The position immediately prior to 1 April 2016 (with certain exceptions) was that the responsible commissioner should be established by the location of where a patient has registered with a GP practice, or if not registered, where the patient is usually resident. Those rules were in place from 1 April 2013 to 31 March 2016. The Guidance at that time 9
stated that if a patient who is resident in one area (CCG A) is discharged to another area (CCG B), and registers with a GP in CCG B s area, it was then the responsibility of the CCG in the area where the patient moves (CCG B) to pay for their aftercare under section 117. Before April 2013 the rule was broadly that the responsible commissioner for the health component of s.117 aftercare was determined by where the patient was resident immediately prior to detention. 13.3 The table below provides a distinction of the changing commissioner responsibilities for patients discharged under section 177: Patients discharged pre 1 April 2013 come under the pre August 2013 PCT Who Pays Guidance and the legacy/originating CCG continues to be responsible for subsequent compulsory admissions under the MHA, and current and subsequent section 117 services until such time as they are assessed to no longer need these services. Patients discharged between 1 April 2013 and 31 March 2016 fall under August 2013 Who Pays Guidance CCG B would be responsible if a patient is discharged into a location in CCG B and registers with a GP in CCG B. Patients discharged from 1 April 2016 will revert back to the pre 1 April 2013 position where the legacy/originating CCG continues to be responsible in most cases. 14. Process For Monitoring Compliance And Effectiveness 14.1 The standards set out in the Mental Health Act 1983 (revised 2015) and associated Codes of Practice will apply. Compliance with these standards and the recording of section 117 activities will be monitored and audited (audits as required) via the IT systems in place (Care First/RiO) and information reported to the LA Directors Management Team and via the NHS contract monitoring process. 15. References Care Act 2014 Care Act Guidance. Department of Health (September 2016) Mental Health Act 1983 Code of Practice Mental Health Act 1983 (revised 2015) Reference Guide to the Mental Health Act (revised 2015) Mental Capacity Act 2005 Mental Capacity Act Code of Practice National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (November 2012 (revised)) NHS England Who Pays? Determining responsibility for payments to providers (2015) 10