Mental health law briefing 204 – Section 117 aftercare responsibilities

The introduction of clinical commissioning groups on 1 April 2013 has led to an alteration in the responsibility for section 117 aftercare.

S117 Mental Health Act 1983 (“the Act”) concerns the aftercare of patients detained under s3, 37, 45A, 47 or 48. It places an obligation on the clinical commissioning group (CCG) and the local social services authority (LSSA) to provide aftercare services until they are satisfied that the person concerned no longer needs such services. Under the Act, the obligation rests with the CCG and LSSA for the area in which the person concerned is resident or to which they are sent on discharge by the hospital in which they are detained.

Amendments to the above statutory framework have changed how aftercare is now funded. The NHS Commissioning Board and Clinical Commissioning Groups Regulations 2012 provide that the obligation on a CCG may be imposed on another CCG or in some circumstances, outside the remit of this briefing, on the NHS Commissioning Board.

The circumstances where the obligation may be imposed on another CCG include by virtue of section 3(1A) of the National Health Service Act 2006 which places a duty on a CCG to commission health services for persons who are provided with primary medical services by a member of the CCG; and persons who usually reside in the CCG’s area and who are not provided with primary medical services by a member of any CCG.

The duty to commission services for persons provided with primary medical services by a member of the CCG does not apply if the patient is temporarily registered elsewhere. In those circumstances, the duty rests with the CCG for the practice with which they are temporarily registered.

For those persons not provided with primary medical services by any CCG, their usual or most recent address should be ascertained and if this is not possible, they should be treated as being usually resident where they are present.

Additional persons for whom a CCG has responsibility include certain categories of children; anyone in the CCG area but resident outside the UK and not provided with GP services by any member of any CCG; residents of Scotland, Wales and Northern Ireland present in the CCG area who are qualifying patients within the meaning of s130C Mental Health Act and not provided with GP services by a member of any CCG; and finally, anyone who is a qualifying patient within the meaning of s130C and liable to be detained in the CCG’s area.

The changes to the statutory framework are complicated. There is a plethora of legislation that needs to be considered when ascertaining who has s117 responsibility. The legislation is not easy to navigate and parts of it are unclear and open to interpretation thus making litigation seem likely.

Marianne Frall
e: marianne.frall@rlb-law.com
t: 020 7227 7260
April 2014

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Disclaimer

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