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When Care is Free
If someone goes into a care home arranged by a local authority social services department, there will be a financial assessment of their means and, depending on their income and assets, they will end up paying a contribution or even the full cost of their care. Well, this is usually, but not always, what happens. Thanks to one particular section of the Mental Health Act 1983, service users who have been subject to detention and treatment in hospital may get future care completely free of charge. The section in question is section 117 and causes widespread debate in local authorities, not surprisingly! A recent court judgement clarifies what this free after-care is for.
For those not familiar with section 117 it goes something like this ... if someone is detained in hospital under section 3 of the Mental Health Act, for care and treatment of 6 months or more, when they are discharged from hospital they are entitled to the provision of after-care at no charge to the person. The responsibility for this after-care lies jointly with health and social service authorities. For the health service, after-care is not an issue about charging – after all, NHS provision is free to the user. For local social services authorities it is a big issue, because the majority of councils in England and Wales operate a charging policy for residential and nursing home care and domiciliary care . That's potentially a loss of a lot of income. Does this really mean that for someone who has been detained under section 3 that they are entitled to free provision of a whole range of care services for the rest of their lives? Well, not necessarily, and there's a recent court case judgement which makes it clearer what constitutes after-care under the Mental Health Act. In his judgment in R (Afework) v Camden, Justice Mostyn said that s.117 after-care services “relate to the reason, and only to the reason, for the detention in hospital”. That really is the essence of section 117. Section 117 is about providing care that will meet the needs arising from the person’s mental disorder and hopefully prevent the person being re-admitted to psychiatric in-patient care.
As for the question as to whether section 117 provides after-care free for life, the answer is that it can only be ended as part of a joint decision by health and social service authorities, but only on the basis that after-care needs arising from the person’s mental health problems are no longer there. Just because someone is well settled in a care home does not mean that entitlement to after-care under section 117 should be ended.
David Beckingham – QCS Expert Mental Health Contributor