The profound effect the Coronavirus pandemic has had upon mental health has been widely reported on in the media recently.
The mental health charity “Mind” has identified that new mental health problems have developed as a result of the pandemic and existing mental health problems are getting worse. It is feared that the UK is heading towards a mental health crisis and it is therefore more important than ever that patients are aware of their rights under the Mental Health Act 1983.
Section 117 of the Mental Health Act 1983 stipulates that patients detained under certain sections of the Act are entitled to free “aftercare” services once they leave hospital. “Aftercare” is defined by the Act as services that meet needs arising from or relating to a mental health condition and that reduce the risk of that condition getting worse so that you do not need to go back into hospital. The cost of care home fees can, therefore, be included as part of section 117 aftercare services if the need to be in the care home is linked to a mental health condition. This can be the case even if a patient was residing in a care home and paying the full cost of their care fees before being hospitalised under one of the relevant sections of the Act and then discharged back to the care home.
A patient is only entitled to section 117 aftercare services if they have been in hospital under sections 3, 37, 45A, 47 or 48 of the Mental Health Act 1983. Crucially, it is important to note that patients detained under section 2 of the Mental Health Act 1983 are not entitled to section 117 aftercare services. Aftercare under section 117 will be arranged between the patient’s local authority and local clinical commissioning group (in England) or local health board (in Wales).
Free aftercare under section 117 has to be provided by the local authority and NHS for as long as it is needed. The local authority and NHS can discharge a patient from section 117 but this must be done by fully involving the patient in the decision and usually through a discharge meeting. A patient should not be discharged from section 117 just because they have been discharged from mental health services; if a patient still requires the services that they receive as part of the section 117 aftercare services then the section should not be discharged.
It is possible to challenge a decision made in respect of section 117 aftercare services and whether that should include the payment of care home fees as part of those services or the decision to stop fully funding a patient’s care home fees by discharging a patient from section 117. The Nursing Care Department at Hugh James have been successful in recovering care fees from local authorities for clients who discovered years later that they had been wrongly discharged from section 117 and for clients who were not informed of their entitlement under section 117 despite having been detained in hospital under section 3.