Thursday, 16 October 2014

The Care Act 2014: Implications for Sec.117 After-care

The Care Act 2014 is already partly enacted. Receiving Royal Assent on 14th May 2014, some of the provisions came into force from 1st October, while most of the rest comes into force on 1st January 2015.

Some sections of the Care Act actually amend the Mental Health Act 1983. These changes principally affect Sec.117 after-care arrangements. They seem to be explicitly designed to resolve the disputes that local authorities often have over who is responsible for providing Sec.117 aftercare, in particular by bringing the definition of “ordinary residence” into line with other legislation, such as the National Assistance Act.

Sec.39(1) gives a clear definition of “ordinary residence”. Essentially, this applies to adults requiring residential care. “Ordinary residence” is either “in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”, or for adults with no fixed address, “in the area in which the adult was present at that time.”

Sec.39(4) then explicitly applies this to Sec.117 after-care, stating:

“An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.”

Sec.75 of the Care Act is all about Sec.117 after-care. Besides changing some of the wording and inserting some new clauses into Sec.117 of the Mental Health Act, Sec. 75(6) of the Care Act also inserts an entire new section, Sec.117A.

Sec.117A is concerned with “preference for particular accommodation”. Subject to regulations to be issued by the Secretary of State, it will place a duty on the local authority not only to take into account a person’s preferences, but “must provide or arrange for the provision of the person’s preferred accommodation” as long as the preferred accommodation meets the identified aftercare needs. However, it is likely to allow the local authority to charge for the difference between the actual cost of this preferred accommodation and “the usual cost of providing or arranging for the provision of accommodation of that kind”.

This section of the Care Act also clarifies the definition of after-care under Sec.117. It inserts a subsection (6) into Sec.117 which states that after-care should have “both of the following purposes”:

“(a) meeting a need arising from or related to the person’s mental disorder; and
(b) reducing 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 mental disorder).”

 Finally, Sec.79 of the Care Act rather ominously allows for the delegation of local authority functions, stating: “A local authority may authorise a person to exercise on its behalf a function it has under…section 117 of the Mental Health Act 1983 (after-care services).”

I am not at all sure what this means. Does it simply permit staff not employed by the local authority, but who may be nurses or occupational therapists employed by local mental health trusts, to discharge LA functions relating to the provision and supervision of aftercare? Or does it permit the full scale privatisation of these functions?

16 comments:

  1. Re section 79; does this mean that if a person subject to 117 moves from the responsible LA area to another LA that the responsible LA can delegate 117 functions to the host LA?

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    1. That certainly could occur as a function of Sec.79 -- let's hope it's not a gatewa to more privatisation.

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  2. http://www.madinamerica.com/2014/10/may-force-never-ever-case-abolition/

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  3. http://www.cchr.org.uk/latest-news/hooked-false-ideas-hooked-psychiatric-drugs/

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  4. Anonymous, if you want to make relevant comments about posts, that's fine. If you want to put relevant links to illuminate your comments, that's fine. If you just want to post links regardless of the content of the post, do it on Twitter or write your own blog. I will remove contextless links in future.

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  5. Your absolutely right.

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  6. Sounds to me as if sec 79 is intended as enabling further privatisation. We should not be surprised, after all many older people are already transferred from the NHS to privately provided care in residential homes

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  7. If I have read the new Act correctly, disputes about which LASS is responsible for s117 after-care may hinge on what regulations are made about 'specified type[s]' of accommodation and whether these impact on the transfer or not of a person's 'ordinary residence' when someone is placed out of borough. E.g. initially in a registered Care Home paid for by the home borough, but then moving on to a Supporting People project - then, depending on how carefully the Care Act Regulations are drafted, this project might become their ordinary residence.

    If the drafting is sloppy then it won't stop the original borough of residence trying to get of the s117 funding hook any more than they often do now will it?

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  8. Could I ask does subsection (6) Sec.117 which states that after-care should have the purpose of ...
    (a) meeting a need arising from or related to the person’s mental disorder; does this relate to the prescribing of medication by the GP in primary care? Can or should s.117 responsibility continue if the person is not in receipt of after care other than medication.

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    1. I would interpret after care as including prescribing of medication in primary care if it is for the patient's mental disorder.

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  9. There was an attempt to get scripts paid for a few years ago under s117 - but it failed - I think you might find the details here mentalhealthlaw.co.uk - whether this new wording will change matters may need someone to make a claim and if necessary take a case.
    http://www.mentalhealthlaw.co.uk/National_Health_Service_(Charges_for_Drugs_and_Appliances)_Amendment_Regulations_2008

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  10. Further to my earlier comment - the fact that most communiyt patients get their scripts form primary care (the GP) and not the MH Trust means these Regs, which say drugs supplied BY THE MH TRUST [my emphasis) to s117 patients cannot be charged for, do not confer an exemption from payment. This arrangement is clearly a bureaucratic technicallity and I wonder whether patients with other conditions subject to exemption, e.g. TB, cancer etc, have to pay if the script for follow up drugs comes from the GP and not the hospital?

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  11. I am still unclear whether the long running disputes we experience between the health & social care split for funding for placements under s117 will be resolved by the care act - particularly when a person is placed in another area and it is deemed their health need should be met from the new area of residence.

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  12. The SW from the LA says that although the cAre hone meets dads needs its too much money so he or us can top up - after looking at over 20 unsuitabke homes & finally finding one she drops this bombshell - their own legislation says they HAVE to pay it all so I'm totally confused again now - dad has no property, no money just his pension

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  13. http://www.nelft.nhs.uk/_documentbank/Section_117_Aftercare_under_the_MHA_1983_MHA014_May_2009.pdf

    Their own legislation 5:1 & 5:2

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