Section 117 aftercare under the Mental Health Act

What is section 117 aftercare?

Section 117 puts a joint duty on the integrated care board (ICB) and the local authority to provide or arrange aftercare (s117(2)). It's owed to people who've been detained for treatment and then leave hospital. The duty stands on its own, separate from the Care Act and the NHS Act (Reference Guide 29.7).

Aftercare services have two purposes together: meeting a need arising from or related to the mental disorder, and reducing the risk of it getting worse and of readmission (s117(6)). The aim is to keep people well in the community, with as few restrictions as possible (Code 33.3).

Who is entitled to section 117 aftercare?

People who've been detained under one of these, then stop being detained and leave hospital, whether or not straight away (s117(1)):

• Section 3, admission for treatment.
• Section 37, a hospital order, with or without restrictions.
• Section 45A, a hospital direction.
• Section 47 or 48, a transfer from prison or immigration detention.

That covers patients on s17 leave, on a CTO and conditionally discharged, at any age (Code 33.2; Reference Guide 29.6). It also covers someone who stayed on informally after their section ended, and someone sent back to prison after a s47 or s48 transfer (Code 33.9; Reference Guide 29.6).

Section 2 alone doesn't qualify, and nor do s4, s5, ss135 and 136, or remand and interim orders under ss35, 36 and 38. Immigration status makes no difference (discharge guidance, Annex B).

What does section 117 aftercare cover?

ICBs and councils should read it broadly (Code 33.4). It can include:

• Health and social care, including packages of care at home.
• Accommodation, such as supported living, shared lives or a care home, where it meets an aftercare need.
• Work and skills, such as employment services, and help to regain skills or learn new ones to cope outside hospital (Code 33.4, 33.5).
• Wider needs, including social, cultural and spiritual ones, if they arise from the disorder and meeting them helps prevent deterioration.

The test is always the two purposes in s117(6). Needs that aren't related to the mental disorder fall outside s117 and are met under other law. A council can't provide nursing care by a registered nurse under s117 (s117B).

Who pays for section 117 aftercare?

The ICB and the council, jointly. The council is the one where the person was ordinarily resident immediately before they were detained, even if they move after leaving hospital (s117(3); Annex B). The ICB is set by NHS England's Who Pays? rules.

Local areas share the cost through pooled or aligned budgets, and should keep joint s117 records (Code 33.7; Annex B). Disputes between councils in England go through s40 of the Care Act (s117(4)). Whoever pays, a dispute mustn't delay assessment, care or treatment (Annex B).

Is section 117 aftercare free?

• Yes. The Act gives no power to charge anyone for s117 services, so they must be free (Reference Guide 29.20).
• Top-up fees. If the person chooses accommodation that costs more than the council would usually pay for that kind, they or someone else can pay the difference (s117A; Code 33.18).
• Direct payments. The council can make direct payments for s117 services, and so can the ICB or NHS England (Code 33.17, 33.19).
• Personal budgets. People eligible for s117 have a legal right to a personal health budget (discharge guidance).

Section 117 aftercare and continuing healthcare

If a need is eligible for s117, it must be met under s117, not NHS continuing healthcare (CHC). You don't need a CHC assessment if all the services are being provided as s117 aftercare (discharge guidance, Annex B).

CHC only comes in for needs that aren't related to the mental disorder, or that are new. Someone receiving s117 aftercare who has a stroke, for example, may need a CHC assessment for those separate needs.

The section 117 aftercare plan

The duty starts when they leave hospital, but planning starts at admission (Code 33.10). Identify who'll be entitled early, and hold a s117 discharge planning meeting before they leave (discharge guidance).

Before discharge, a CTO or more than very short leave, the RC should make sure aftercare needs are assessed and discussed with the patient and carers. They should be in the care plan (Code 33.13). Tribunals and managers' panels will expect to hear what aftercare would be in place (Code 33.11).

The ICB and council should review the plan jointly at least every 12 months, taking the person's views into account. Tell people they're entitled to free aftercare, and remind them at review (Annex B).

How long does section 117 aftercare last?

Until the ICB and the council are both satisfied the person no longer needs it (s117(2)). There's no time limit, and it can't end while they're on a CTO. The clearest case for ending it is when their mental health has improved so they no longer need services for needs arising from it (Code 33.20).

It mustn't be withdrawn just because the person has left specialist mental health services, or an arbitrary time has passed (Code 33.21). Nor because they're deprived of liberty under the MCA, back in hospital informally or on s2, or off a CTO or s17 leave.

Services can be reinstated if they were withdrawn too early (Code 33.22). A person can turn aftercare down, but that doesn't mean they've no need, and they can have it if they change their mind (Code 33.24).

If they're detained again under s3 or another qualifying section, the duty ends. A new duty starts when they leave, owed by the area where they were ordinarily resident just before that detention (R (Worcestershire CC) v SSHSC [2023] UKSC 31). The 2025 Act will require joint written notice before it ends (s46). That isn't in force yet.

Common mistakes with section 117

• Counting s2. It doesn't qualify, however long the admission.
• Charging. Means-testing or charging for qualifying services isn't allowed.
• Letting it drift. Ending it because someone's been well for a while or left the CMHT, without a joint decision that the need has gone.
• Using CHC instead. CHC must not be used to meet s117 aftercare needs (Annex B).
• Restricting liberty through the plan. Section 117 gives no authority to restrict or deprive anyone of liberty. That needs separate legal authority, such as DoLS (Annex B).

A worked example: dementia and a care home

She's entitled to s117 aftercare. If the placement meets needs arising from her dementia and reduces the risk of readmission, it's aftercare and it's free. If she lacks capacity and the placement deprives her of liberty, she'll need DoLS too, which doesn't end her s117 entitlement. If she later has a stroke, new needs from it may be assessed for CHC.