Changes to Section 117 of the Mental Health Act 1983.

Posted by Eve Piffaretti on
Changes to Section 117 of the Mental Health Act 1983.

The Care Act 2014 ("the Act") reforms the law relating to care and support for adults and the law relating to support for carers, and also empowers the government to make secondary regulations to implement those reforms. Section 75 of Act amends section 117 if the MHA to define after-care; assist in determining which local authority is responsible for aftercare; deal with preferences for accommodation; and allow direct payments.

On 14 May 2014, the Care Bill gained Royal Assent and became the Care Act 2014. The Act is not yet in force but introduces some important changes. The majority of its provisions will come into effect in July 2015. This article focuses on the changes to section 117 of the MHA envisaged by the Care Act 2014. After-care services
The new section 117(6) of the MHA defines 'after-care services' as services which have both of the following purposes:

  • meeting a need arising from or related to the person's mental disorder; and
  • 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).

The new section 117(6) therefore amends Mostyn J's definition of after-care services, as set out in the case of R (Afework) v London Borough of Camden [2013] EWHC 1637 (Admin), in which Mostyn J held that the duty owed by the state to provide after-care services must be a direct result of the reason that the person was detained in the first place (the 'original condition'). He further directed that the requirement for enhanced accommodation must be to meet the needs arising directly from the original condition. Mostyn J also held, somewhat controversially, that the "ex-patient must also be placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition" (paragraph 19).

Section 75(5) of the Care Act 2014 introduces a new statutory definition of 'after-care services' for the purposes of section 17. In common with Mostyn J's definition, it makes it clear that after-care services must meet a need arising from or related to the person's mental disorder. Additionally, and in accordance with the second point of Mostyn J's definition, the purpose of these services must be to reduce the risk of deterioration in the person's mental condition and, accordingly, to reduce the risk of the person's re-admission to hospital for treatment for mental disorder.

However, the new section 117(6) removes the requirement for the patient to be placed in the accommodation on an 'involuntary' or 'incapacitated basis'. This was a novel requirement introduced by Afework and was concerning to practitioners, as it was not clear what was meant by either involuntary or incapacitated. Further, 
literal reading would tend to have suggested that a person with the mental capacity to decide where to be accommodated could not have their need for enhanced accommodation met by section 17.

Ordinary residence

Another significant change to section 117 is in respect of ordinary residence. Currently, section 117 allocates responsibility to local authorities or NHS bodies by determining where the patient is 'resident'. However, the Care Act 2014 amends the position so that responsibility is given to the local authority in which the person was 'ordinarily resident' immediately prior to being detained. Ordinary residence will be determined in accordance with the current guidance, with any disputes arising to be determined by the Secretary of State in England or, in respect of an ordinary residence dispute which only involves local authorities in Wales, the Welsh Ministers.

Preference for accommodation

By a new section 117A, the Secretary of State is empowered to make regulations requiring a local authority to comply with a formed detained person's preference for particular accommodation and allowing the person concerned to pay for some or all of the additional cost if the preferred accommodation is more than the local authority's usual cost. This enables local authorities to charge a top-up fee if the former detained person's accommodation is more than the authority's usual cost. In discharging the section 117 duty, local authorities are permitted to provide the former detained person with direct payments, as section 75 of the Care Act 2014 amends the Social Services and Well-being (Wales) Act 2014 to provide that a local authority in Wales may make direct payments to the former detained patient. Section 117A therefore enables former detained patients to express a preference for a particular accommodation and local authorities to charge a top-up fee if the person's preference is for more expensive accommodation than their usual cost.

For further information please contact Professor Richard Jones by email or on 029 2068 6000 or Eve Piffaretti, contact details below.

About the Author

Eve heads our Commercial team in Wales and the Public Law Group. She acts for public sector organisations across the UK advising on public law and regulatory issues.

Eve Piffaretti
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029 2068 6143

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