S117 – A shared responsibility and how to resolve disputes
15th August, 2024
Section 117 of the Mental Health Act 1983 ("MHA") imposes a joint duty on Integrated Care Boards ("ICBs") and Local Authorities ("LAs") to work with voluntary agencies to provide after-care services for anyone discharged from detention under section 3, section 37, section 45A, section 47 or section 48 of the MHA when they leave hospital[1].
This collaborative duty is absolutely essential to the success of the after-care system for mental health patients.
After-care services are those services which meet a need arising from, or related to, the person’s mental disorder and which reduce the risk of a deterioration of the person’s mental condition and the further risk of re-admission to hospital for further treatment of their mental disorder.[2] After-care can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.[3] It is for ICBs and LAs to work together to effectively discharge their collective duty to meet these needs.
This shared responsibility should lead to discussion between ICBs and LAs as to the apportionment of resources and funding. There is no statutory provision setting out how funding should be split between the public bodies but ICBs and Local Authorities are encouraged to have agreements in place which describe how they will discharge their s117 aftercare duties, which of their services fall within the remit of s117 and how they will apportion funding. Inevitably, there are occasions when matters cannot be agreed and in such cases advice may need to be sought on resolving commissioning disputes.
On 26 January this year, statutory guidance was issued on the subject (see ‘Discharge from mental health inpatient settings‘). Annex B, entitled ‘National guidance on how budgets and responsibilities should be shared to pay for section 117 aftercare (Mental Health Act 1983)’ is instructive and sets out the systems that public bodies may use to support their joint decision making. However, there is no clear guidance as to how funding should be apportioned in individual cases, or how individual care plans should be tailored to individual needs. So, how should commissioning disputes be resolved?
Disputes about care provision
The first point to be made is that it is essential to ensure that there is no delay in effecting patient discharge and providing the after-care services even where there is dispute on the commissioning of services. Commissioners should be aware that delays may attract criticism from the PHSO and in some cases may lead to litigation via judicial review. If funding disputes cannot be resolved, the disputed element of care should be provided to the service user and funded on a 50 / 50, “without prejudice” basis pending resolution of the dispute via mediation.
If the dispute cannot be resolved a claim in restitution could be brought. In the case of Surrey CC v NHS Lincolnshire CCG[4] the LA brought a claim in restitution against a CCG for money that the LA had paid for accommodation and care when the CCG erroneously declined to assess whether P was eligible for NHS-funded care. Whilst not a s117 case, the judgment sets out that a claim for unjust enrichment could be brought against a public body if another public body had been discharging that public body’s liability.
Disputes as to the identity of the responsible commissioner
Sometimes disputes arise because the patient has moved area during or after treatment and it may not be clear which authority holds responsibility for them at the point of discharge. The Who Pays guidance establishes that it is the authority in whose area the service user was registered with a GP or in whose area they were ordinarily resident at the time of their detention who retains responsibility for aftercare funding.
The recent Worcestershire case[6] provides clarity as to when the duty for after-care ceases and how ‘ordinary residence’ should be determined.
In that case the service user, JG was residing in a Worcestershire County Council (“Worcestershire”) property at the time of her detention under the MHA in March 2014. She was discharged from detention near to her daughter’s home in Swindon (in July 2014). Worcestershire funded JG’s s117 after-care services at this point and also when she was moved to another home in Swindon.
JG was detained again under s3 MHA in June 2015. In August 2017, JG was discharged from detention. At this point disagreement arose as to which LA was the responsible commissioner of her s117 aftercare. It was Worcestershire’s position that JG had been ordinarily resident in Swindon prior to the second detention.
The Supreme Court held that Swindon Borough Council (“Swindon”) was responsible for providing JG with after-care services on discharge in August 2017. The court held that JG had ceased to be a person to whom s117 applies when she was detained in hospital under s3 MHA in June 2015. During a detention a person does not require after-care services and so Worcestershire’s duty ended upon the second detention.
The court confirmed the provisions of s117(3) MHA in finding that responsibility for after-care for JG, on discharge from the second detention, fell to the LA where JG was “ordinarily resident” immediately prior to that detention i.e. Swindon. This was the case even though that residence was funded by another LA.
It should be noted that, unlike the LA position in Worcestershire, a second detention made before the person is actively discharged from after care does not bring to end the responsibility of the originating ICB .
Conclusion
If your organisation should find itself facing a commissioning dispute, where discussions between the public bodies have been ineffective and there is nothing set out in pre-agreed documents, then we would advise that you seek to agree a 50 / 50 split “without prejudice” whilst the matter is resolved. This prevents any delay to the patient’s discharge.
Our experienced team can then provide you with tailored advice as to the next best steps, whether this be an informal or formal mediation or consideration of litigation. Please do not hesitate to contact Victoria Parker or one of our specialist health and advisory care lawyers for an initial discussion as to how we can help you.
[1] S117(1) and (2) MHA
[2] S117 (6) MHA
[3] Paragraph 33.4 of the Mental Health Act 1983: Code of Practice
[4] R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [2020] EWHC 3550 (QB)
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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