Healthcare Features
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The scope of the aftercare services that authorities are required to provide has been clarified by a recent High Court ruling. Laura Forsyth, Simon Lindsay and Tracey Lucas assess the judgement and set out what councils should do.
In R (Mwanza) v Greenwich LBC and Bromley LBC [2010] EWHC 1462 (Admin), Mr Justice Hickinbottom clarified the meaning of section 117 of the Mental Health Act 1983 and the scope of the aftercare services which authorities must provide.
The case concerned a patient who was discharged from section 3 in January 2001. He initially engaged with services in the community but from late 2001 onwards had little contact with them and generally appeared to be doing well. The services did not hear from him again until mid 2009 when his mental health was reported to have deteriorated. It was clear to the court that the reasons for this deterioration were linked to his immigration status and were, in the main, the effect of destitution and his inability to work.
The patient argued that the scope of section 117 is wide and includes any services which could be provided to prevent a possible deterioration in his mental health and reduce his chances of relapse or readmission. The London Borough of Greenwich (against whom the section 117 argument was made) said that section 117 only required the provision of services to meet needs arising from or related to his mental disorder. Greenwich said that therefore ordinary accommodation and basic living costs (e.g. food) did not fall within its scope.
The judge, in the main, preferred Greenwich’s interpretation and stated that section 117 was to provide for the specific needs of those with mental disorders and not to provide general support to those who needed it. He gave an example of a person’s need for assistance to find employment or housing (which may fall within section 117) as opposed to a person’s need for that employment or housing. However, he disagreed with Greenwich’s submission that ordinary accommodation could never fall within section 117 (although he appeared to admit that it was difficult to envisage when this may occur).
The judge also made it clear that it was for the authorities, who have the necessary professional expertise, to decide what needs a person has and that they have a degree of discretion as to what services are required to meet those needs. The judge approved the following quote from the judgment of Lord Phillips MR in R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240 at [29]: “The nature and extent of those [after-care] facilities must, to a degree, fall within the discretion of the [authorities] which must have regard to other demands in [their] budget.”
This judgment provides much needed clarification on the extent of section 117 services. When determining what services fall within section 117, authorities should consider the patient’s needs arising from their mental disorder first and provide services to meet these needs. If a patient has a need for accommodation or similar services for reasons other than their mental disorder, they should be directed to other sources. Further, a service which, if provided, is likely to reduce the patient’s chances of relapse or readmission does not have to be provided under section 117 unless required to meet an assessed mental health need.
What should you do as a result of this judgment:
- Consider issuing guidance to relevant staff on the scope of section 117 and/or review existing guidance
- Ensure staff making decisions about the provision of section 117 services are cautious not to widen the scope of services beyond those needed for mental health
- Review existing section 117 care arrangements to ensure you are only providing services required to meet an assessed mental health need.
Laura Forsyth (solicitor), Simon Lindsay (partner) and Tracey Lucas (senior associate) are at Bevan Brittan (www.bevanbrittan.com). For more information, contact Simon on 0870 194 1710 or via
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The government should enable councils to work in partnership with the charity sector, ensure there is a more consistent commissioning process and reduce the regulatory burden on the third sector, charity finance directors have urged.
In a submission to the Treasury’s comprehensive spending review, the Charity Finance Directors’ Group (CFDG) said: “Local authorities should be enabled and encouraged to work in partnership with the charity sector, rather than simply ‘turning off the tap’, transferring the bulk of spending cuts onto the services currently delivered by charities.”
The group argued that greater consistency in the commissioning process, allowing full cost recovery and removing some of the barriers to participating in public service delivery would help to level the playing field for charities in bidding for contracts.
Other key recommendations included:
- Longer-term contract periods should be provided wherever possible to enable services time to develop, deliver real value for money and produce real outcomes
- Accountability and transparency – incorporating effective cost-benefit analysis – should be applied to the cutting of services as it is with service procurement. This should also be reflected at a local level
- The regulatory burden for charities should be cut down. This replication of information and unnecessary governance and administration costs should be reduced
- Government departments should be aware of wider implications of public funding cuts on sector sustainability, community cohesion and service delivery
- The Big Society is undermined when projects which are already underway or have had initial funding for set-up costs are not continued. “This ultimately wastes resources and impacts negatively on communities,” the CFDG said
- The gift aid regime should simplified and updated
- The government should consider how the sector can be best supported in terms of the tax and regulatory environment it works in. “Charity trading regulations and the impact of VAT need to be addressed as burdens for the sector in seeking different sources of funding.”
The CFDG said charities have a significant part to play in bringing the government’s Big Society to life within communities.
Calling on the government to take into account the longer term impacts on the charity sector of any cuts, it added: “Furthermore, while the government has expressed that frontline services will be protected, there also needs to be recognition of the role that charities play in identifying local needs and in working with vulnerable and difficult to reach groups.”
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MPs on the health select committee have endorsed Dame Jo Williams’ candidacy for chair of the Care Quality Commission.
However, they warned that while the CQC had “made encouraging progress in many areas of its agenda, a substantial number of issues remain”.
In a report the committee called on the CQC to address several areas of concern:
- The need to implement robust processes to allow whistleblowers to provide information to the Commission without necessarily prejudicing their own position. In her evidence Dame Jo said the CQC recognised the challenge of helping people speak out
- Handing ‘soft data’ a proper role in assessing the quality of care, particularly in residential social care settings. “We strongly support the use of soft data but believe that for it to be truly valuable it must be collected and applied in a rigorous, structured manner rather than on an informal basis”
- The need to consider the implications of the shortage of doctors to provide second opinions under sections 57 and 58 of the Mental Health Act, which the committee believes leads to the inappropriate use of section 62 (urgent treatment)
- The need to work closely with ministers and established LINk groups to ensure the effective discharge of the “significant” responsibilities involved in establishing HealthWatch England within the CQC. This new body is designed to provide leadership to local HealthWatch bodies, advice to the NHS Commissioning Board, Monitor and the Secretary of State for Health. It will also propose CQC investigations of poor services
- The quality and accessibility of the information available from the CQC both to the public and to commissioners and providers of care. The committee welcomed the CQC’s consultation on making its findings understandable to the public and helping them make informed choices.
The health committee, which plans to review the CQC’s work on an annual basis, said a number of the Commission’s challenges related to continuing work to consolidate it as a single unified body following the merger of its three predecessor bodies (the Healthcare Commission, the Commission for Social Care Inspection, and the Mental Health Act Commission).
The MPs said there was a need to establish a clear understanding of the distinctive roles of the chair and board on the one hand, and the chief executive and management on the other – and to establish an effective working relationship between the two.
They added that there was a need to develop a common “CQC” culture across the different historic fields of responsibility, and a need to develop clear internal cost and efficiency targets and procedures for reporting performance against these targets to the board.
Practical challenges arising from the merger – such as the consolidation of information technology systems and the development of an integrated management structure – were also still an issue.
The committee said it recognised that the CQC’s objectives needed to be achieved against the background of declining real resource.
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The Care Quality Commission has unveiled an overhaul in its approach to assessing quality for health and adult social care.
The watchdog will now focus on three outcomes for 2010/11, rather than seven. They are:
- Improved health and wellbeing
- Increased choice and control, and
- Maintaining personal dignity and respect.
“We will pay particular attention to the way in which safeguarding, putting people first and use of resources have been key drivers for effective delivery of these outcomes,” the CQC said.
“This will provide a clear focus to the assessment and has been developed with key stakeholders, including people who use services.”
The Commission insisted that its approach would be “targeted, proportionate, risk-based and make the most efficient use of publicly available data”. It said it will publish detailed guidance on the 2010/11 assessment of councils in the autumn.
The current programme of service inspections will conclude this month, and the CQC is proposing to develop the new approach by spring 2011.
“These revised service inspections will have a focus on the primary responsibility of local authorities in adult safeguarding, though with the flexibility to address over time other areas of concern in terms of outcomes for more vulnerable groups in the community,” it said.
The shake-up follows a consultation that received more than 462 responses to the CQC’s proposals.