Mind Rights Guide 6. Community care and aftercare

Mind Rights Guide 6 Community care and aftercare

2 Introduction This booklet is designed to answer some of the more common questions about obtaining mental health support services in the community or on leaving hospital. It is not, however, a substitute for a statement of the law or for legal advice. Public funding may be available to pay for professional advice from a solicitor. This is meanstested (so it depends on your income and savings) for most purposes. If you want advice from a solicitor who has knowledge of community care law and issues, you can contact the Law Society or Community Legal Advice for lists of specialists solicitors in your local area (see Useful organisations ). Legal terms, as they appear in the Mental Health Act (MHA) 1983 and other legislation, are printed in bold when they are used for the first time in this booklet (subsequently, they appear in ordinary type). Where we use section numbers, they are from the MHA. To keep this guide as straightforward as possible, we have kept technical terms to a minimum and have summarised the effects of the law and good practice, where appropriate. Who s who Below are some brief explanations of the people and organisations involved in community care and aftercare. Approved mental health professional (AMHP) a social worker, nurse, occupational therapist or psychologist, approved by a local social services authority to carry out certain functions under the Mental Health Act Community Mental Health Team (CMHT) team which provides mental health care support in the community and which usually includes social workers, community psychiatric nurses (CPNs), psychologists and psychiatrists. Hospital managers the people who make sure a hospital s responsibilities under the MHA are carried out.

Independent Mental Health Advocate (IMHA) a specially trained advocate. You qualify for help from an IMHA service if you are detained under certain sections of the MHA, if you are under guardianship, if you are on a community treatment order, or if you discuss certain rare treatments with health staff. Informal patient the term used for a person who is being treated in psychiatric hospital, who is not detained under a section of the MHA: also known as a voluntary patient. Nearest relative the person defined by section 26 of the MHA who has certain rights and powers under the Act in respect of the person for whom they are the nearest relative. Responsible clinician the mental health professional with overall responsibility for a person s care and treatment in hospital. Mental Health Act 1983 (MHA) the main Act of Parliament that restricts the liberty of individuals defined as having a mental disorder. The MHA has been amended several times, most notably by the Mental Health Act 2007. Mental Health Review Tribunal (MHRT) an independent panel that decides if a person should remain subject to detention or supervised community treatment 3

4 What is community care? The phrase community care is used to describe the various services available to help individuals manage their physical and mental health problems in the community. These services include, for example, nursing or social work support, home help, day centres, counselling and supported accommodation. Community care is usually arranged by social services departments or Community Mental Health Teams (CMHTs). The system for delivering community care services to most adults for example older people and people who have a physical disability is called care management. What is the Care Programme Approach? The Care Programme Approach (CPA) is a process similar to care management but is used for people who have significant mental health needs. The CPA involves mental health professionals assessing your needs and drawing up a care plan. A care co-ordinator is appointed under the CPA to ensure that the services in your care plan are put in place and that the care plan is meeting your needs. The care co-ordinator should also make sure that your care plan is reviewed regularly. The care co-ordinator will usually be a mental health professional who works in a CMHT. How do I get community care services? The starting point is a community care assessment. Under the NHS and Community Care Act 1990, any person who appears to need community care services which includes anyone with known mental or physical health problems is entitled to have their needs assessed by their local authority. The assessment is usually arranged by the local authority s social services department ( social services ) with help from NHS staff. If you are on the CPA, your needs should be assessed as part of the CMHT s work with you. The assessment should take place within a reasonable time of social services finding out that you may need community care services. Social services may find out because you tell them, but you do not have to make a formal application for a community care assessment. If social services know that you may need services, however they were informed, they should offer to assess you without you having to ask.

Sometimes there are disagreements between the NHS and social services about which organisation should assess your community care needs. It is important to note that the legal responsibility rests with social services. It is also important to remember that even if your GP or CMHT do not believe that your mental health needs are significant enough to require the CPA, you may still be entitled to an assessment of your community care needs under the NHS and Community Care Act 1990. Which local authority will assess me and provide services? It is the local authority in whose area you live that has the legal responsibility for assessing your community care needs. If you are in hospital when it is decided that you should be assessed for community care, the responsibility rests with the local authority in whose area you were living before you were admitted to hospital. This is so even if you have given up your home since your hospital admission. If you are in the community but have no settled home, the responsibility lies with the authority where you are at the time it is realised that you may need community care. If you have recently moved from the area of one local authority to another and they disagree about which authority is responsible for assessing your needs, they can ask the Department of Health (DoH) to decide who it should be but you should not be left without support while the DoH decides. During this time, the authority where you currently live must arrange for your needs to be assessed and provide any services needed. Can they take away my services? Community care services can be withdrawn if you no longer need them; however, your needs must be assessed again before this can happen. What is aftercare? When community care is being arranged to help someone to settle back into the community after being in hospital, it is usually called aftercare. For most people, their aftercare needs will be worked out following a community care assessment. Ideally, this will take place before the person leaves hospital. The aftercare package could include a variety of the community care services available (see p. 4; What is community care? ). 5

6 If you are in a psychiatric hospital, your aftercare needs should be assessed and a care plan prepared before you are discharged. If you were admitted as an informal (voluntary) patient or detained (sectioned) under section 2 of the Mental Health Act 1983 (MHA), your aftercare will usually be arranged under the CPA. If you were detained under certain other sections of the MHA, then you should be offered aftercare under section 117 of the MHA ( section 117 aftercare ). What is section 117 aftercare? Section 117 of the MHA puts a joint duty on health and social services to arrange aftercare for certain people when they leave hospital. This includes anyone who has been detained (sectioned) in hospital under the treatment sections of the MHA (sections 3 and 37, including 37/41) or who has been transferred to hospital under sections 45A, 47 and 48 MHA. Section 117 still applies if detention under one of these section ends but the person agrees to stay in hospital as an informal patient: in this case, aftercare starts when the person leaves hospital. Section 117 also applies to people who are still detained under section but are on extended leave from hospital (see p. 9), and to patients on conditional discharge. The purpose of section 117 aftercare is to help people settle back into the community and to prevent them from having to be re-admitted to psychiatric hospital. If section 117 applies to you, your needs should be assessed before you are discharged from hospital. There is no right to any specific services it is up to health and social services to decide what they think your section 117 aftercare should include but these could be, for example, somewhere to live, social care support, home help, or using a day centre. You will be assessed and be given a care plan in a similar way to someone who has a community care or CPA care plan. However, one important difference is that you cannot be charged for any services that are provided to you as part of your section 117 aftercare plan. As well as stating when health and social services have a duty to provide you with aftercare services, section 117 of the MHA also says that your aftercare can only come to an end if the health and social services who are dealing with your case make a joint decision that you no longer need

aftercare. Your needs must be reassessed before the aftercare is ended. The law does not define what it means to no longer need aftercare: this is left to health and social services to decide, but they must be able to justify their decision. For people with significant and long-term needs, who are likely to need hospital admission if services are withdrawn, it might not be reasonable for health and social services to withdraw their section 117 aftercare for a long time, or even at all. Can aftercare include being re-housed? If section 117 applies to you, your housing needs should be considered. If you will be homeless or can t be expected to return to where you previously lived, accommodation should normally be arranged for you, probably in a hostel, care home or other supported housing, as part of your section 117 aftercare plan. If you were detained in hospital for assessment only, under section 2 of the MHA, or were in hospital as an informal (voluntary) patient, section 117 will not apply; however, you can have your accommodation needs considered as part of your community care assessment, if you are in need of care and attention in your accommodation. Can I insist on being given community care services? Although there is a legal duty to assess your need for services, this does not mean that you are entitled to receive any specific service. Services will only be provided if you are assessed as needing them, and if it is necessary to provide them. The final decision as to need rests with health and social services. There is no duty on the authorities to provide a service if someone else, such as a carer or a voluntary agency, is able to do so. Your position is stronger if you are detained under certain sections off the MHA and so entitled to section 117 aftercare (see p. 5). But even here, it is up to health and social services to decide what your aftercare package includes. You may not receive the services you want unless the authorities agree you need them. If your life will be seriously affected without support for example, if you are unable to leave the house to buy food, and no one else is available to help you it is unlawful not to arrange an appropriate service. However, most decisions are not so clear-cut. In particular, many service users believe that they will benefit from some form of 7

8 therapy, but it is hard to prove that they need it. (See p. 13 for information about challenging an assessment.) Who is involved in planning my care? If you live in the community, your care plan will usually be drawn up by your care co-ordinator, other professionals who will be involved in your care plan and your GP. If you are in hospital when your care plan is drawn up, your responsible clinician and other hospital staff may be involved. The professionals should talk to you before they decide what support you should get and you should tell them what you think you will need. If a friend or relative helps or supports you, they should be involved in these discussions if you want them to be. Under the Carers and Disabled Children Act 2000, someone who is 16 or older and spends a lot of time caring for you can also be assessed to see if they need any help, such as home help support or occasional holidays from caring. This assessment should take place when social services know that it is needed, and can be carried out at any stage. The entitlement to an assessment does not necessarily mean that your carers will get the services they are asking for, this will depend on their needs. For more about this, they can contact Carers UK (see Useful organisations ). If I don't want any services, do I have to have them? You are entitled to refuse any community care services offered to you and can only be forced to accept services if Mental Health Act powers are used. Unless you were detained in hospital by the courts or after being transferred from prison, there are three ways in which Mental Health Act powers could apply to you while you are living in the community. These are where you are on section 17 leave, you are placed under guardianship, or you are subject to supervised community treatment. If none of these powers apply to you, health and social services might agree to leave you alone if you refuse services, even if they believe you would benefit from services. However, if they believe that your mental health is at risk of deteriorating, they may consider using Mental Health Act powers and this could include deciding whether you need to be detained under section.

What is section 17 leave? Your responsible clinician may let you leave hospital for a certain time even though you are detained under section. This is often called section 17 leave because it is section 17 of the Mental Health Act that allows this. Your leave could be very short; for example, a couple of hours to let you have some time outside of the hospital. Or it could be for a weekend or longer period; for example, to allow you to return home to help you get ready for when you are discharged from detention. When granting you leave, your responsible clinician can place certain conditions on you, such as telling you where you have to stay while you are on leave. The responsible clinician can also recall you (make you go back) to hospital at any time. What is guardianship? Guardianship is used to encourage people who live in the community to use services or to live in a particular place. It is often used with people who lack the mental capacity to avoid danger or being exploited. Section 37 of the MHA allows the courts to appoint a guardian where a person has been charged with a crime. However, most guardians are appointed under section 7 of the MHA, following an application by an Approved Mental Health Professional (AMHP). Section 7 says that guardianship can be used if you: are 16 or over, and have a mental disorder of a nature or degree that warrants guardianship, and need a guardian for your welfare or to protect other people. You can only be placed under guardianship if two doctors recommend this and another person then applies for you to be placed under guardianship. The application can be made by your nearest relative, but in most cases is made by an AMHP. The application is made to the local social services authority, and a social worker is often appointed as the guardian; however, any person who is willing to act could be appointed. The guardian can require you to do certain things, such as live at a specified place, or attend at particular places or times for treatment, occupation, education or training. But the guardian cannot force you to go to these places if you do not wish to. 9

10 Can I avoid being placed under guardianship? You cannot prevent a guardian being appointed under section 7 of the MHA, but your nearest relative can. Before applying for you to be placed under guardianship, an AMHP must consult your nearest relative, as long as this is reasonably practicable and would not involve undesirable delay. If your nearest relative objects, the AMHP cannot apply for you to be placed under guardianship without taking legal proceedings. This involves the AMHP applying to the County Court to remove (or displace ) your nearest relative. A nearest relative can be displaced by the County Court for a number of reasons and one of these is where it is shown that he or she is unreasonably objecting to guardianship. Unless the matter is urgent, your nearest relative should be given the opportunity to explain to the court why he or she is objecting. When does guardianship end? Guardianship lasts for up to six months and can be renewed: initially for a further six months, and then for a year at a time. If you have been placed under guardianship, you can apply to the Mental Health Review Tribunal for your discharge from guardianship. Your nearest relative can also discharge you from guardianship, unless he or she has been displaced (see opposite), in which case he or she can apply to the tribunal instead. What is supervised community treatment (SCT)? Supervised community treatment (SCT) was introduced into the MHA by the Mental Health Act 2007. It allows a person who has been detained under certain sections of the MHA to be discharged back into the community under a community treatment order (CTO). The person must comply with certain conditions or face being recalled (brought back) to hospital and being detained once again under their original section. If you are placed on a community treatment order you are called a community patient.

Who can put me on a CTO? You can only be placed on a CTO if you are detained in hospital under certain sections of the Mental Health Act (see below). Before you leave hospital, your responsible clinician can make an application to the hospital managers and this has to be supported by an AMHP. If a CTO is being considered, the professionals should discuss this with you and you may wish to speak to and be supported by an Independent Mental Health Advocate. Other people who should be consulted include your nearest relative and any carer, unless this is not practicable or you object. Although your nearest relative may be consulted, she or he has no power to object to the making of a CTO. When can I be put on a CTO? A CTO can only be used where a person is detained under certain sections of the Mental Health Act. If you were sent to hospital by the courts or from prison, you can be placed on a CTO unless you are a restricted patient (this has stricter conditions of discharge); otherwise, you can be placed on a CTO if you are detained under section 3 of the MHA. You cannot be put on a CTO if you are detained under section 2 or are an informal patient. Your responsible clinician must be of the opinion that the relevant criteria are met and an AMHP must state in writing that she or he agrees with this opinion and that it is appropriate to make a CTO. The relevant criteria are that: you have a mental disorder of a nature or degree which makes it appropriate for you to receive medical treatment it is necessary for your health or safety or the protection of other persons that you should receive such treatment subject to you being liable to be recalled, such treatment can be provided without you continuing to be detained in a hospital it is necessary that the responsible clinician should be able to exercise the power to recall you to hospital appropriate medical treatment is available for you. In deciding whether SCT is the right option for you, the responsible clinician and AMHP need to consider other options that will place fewer restrictions on you; for example, section 17 leave and guardianship (see p. 9). 11

12 What conditions can be imposed on me under a CTO? If you are placed on a CTO you have to make yourself available for certain examinations by the professionals. As long as the responsible clinician and AMHP agree, your CTO could include any other condition that is necessary or appropriate for: ensuring that you receive medical treatment preventing risk of harm to your health or safety protecting other persons. The conditions depend on your individual circumstances, but government guidance suggests that they might cover matters such as avoiding illegal drugs or alcohol. When can I be recalled to hospital? You can be recalled to hospital by your responsible clinician if he or she believes that you need to receive treatment in hospital for your mental disorder and that there would be a risk of harm to your health or safety or to other persons if you were not recalled. You can also be recalled if you do not comply with one of the conditions to make yourself available for examination by the professionals. When you are recalled, the responsible clinician can take you off your CTO and detain you under your original section, as long as an AMHP supports this. Even if you are not placed under your original section, you can be detained for up to 72 hours and treated without your consent. Your responsible clinician can discharge you from hospital at any point during the 72-hour period and you will once again leave hospital under your CTO. How can I be discharged from SCT? Your responsible clinician may discharge you from SCT at any time and must do so if you no longer meet the criteria for SCT. If you wish to be discharged but your responsible clinician does not agree, then you can be discharged from your CTO by the Mental Health Review Tribunal, the hospital managers, or your nearest relative. When you are being discharged from SCT however this happens the team of professionals working with you should ensure that you continue to be offered any aftercare services that you still need under section 117 of the MHA (see p. 6).

Can I be charged for my community care services? As a general rule, social services are allowed to charge you for any community care services you receive. They have to charge you for accommodation they have arranged, for example in a residential care home, even if you are required to live there under guardianship. How much you pay depends on your finances, which are assessed by a means test. You do not have to pay for NHS services. You cannot be charged for any services provided as part of your aftercare under section 117 of the MHA. If you are subject to a CTO you are entitled to section 117 aftercare and cannot be charged for services provided to you. Even if your CTO ends, if you still need section 117 services, you cannot be charged for them. What can I do if I disagree about my care services? You can make a formal complaint to social services if you don t agree with the result of your assessment, or if you have been waiting for one for an unreasonable length of time. Afterwards, if you are still not satisfied, you can take your complaint to the Care Quality Commission, and possibly after that to the Parliamentary and Health Service Ombudsman if you believe it has not been handled fairly. (See Useful organisations, on p. 14.) If your complaint relates to section 117 aftercare, you can complain to whoever is supposed to be arranging the assessment (either social services or the health trust). Again, you may be able to take your complaint to the Ombudsman, if it was not handled fairly. In some circumstances, you may be able to take the case to court under judicial review. However, the courts will not intervene unless the decision taken was either unlawful or so utterly unreasonable that it can t be justified. If you believe you have a good case, get legal advice as soon as possible. 13

14 Useful organisations Mind For more information about any mental health issues, including details of your nearest local Mind association, contact the Mind website: www.mind.org.uk or Mindinfoline on 0845 766 0163. For legal advice, contact Mind's Legal Advice Service, PO Box 277, Manchester, M60 3XN; tel. 0845 225 9393, (Monday to Friday, 9am to 5pm); or email: legal@mind.org.uk Care Quality Commission CQC National Correspondence, PO Box 1258, Newcastle upon Tyne NE99 5AU tel. 03000 61 61 61 web: www.cqc.org.uk Independent regulator of health and social care in England. Also protects the rights of people detained under the Mental Health Act Carers UK 20 Great Dover Street, London SE1 4LX tel. 020 7378 4999 web: www.carersuk.org Citizens Advice tel. 020 7833 2181 web: www.citizensadvice.org.uk Community Legal Advice tel: 0845 345 4 345 web: www.communitylegaladvice.org.uk The Law Society 13 Chancery Lane, London WC2A 1PL tel. 020 7242 1222 web: www.lawsociety.org.uk For a list of mental health solicitors Parliamentary and Health Service Ombudsman Millbank Tower, Millbank, London SW1P 4QP tel. 0345 015 4033 web: www.ombudsman.org.uk Independent service investigating complaints about poor treatment or service provided through the NHS Revolving Doors Units 28 29, The Turnmill, 63 Clerkenwell Road, London EC1M 5NP tel. 020 7253 4038 web: www.revolving-doors.co.uk For people with mental health problems in contact with the criminal justice system

Further reading Good practice in adult mental health T. Ryan, J. Pritchard (JKP 2004) 18.95 How to cope with hospital admission (Mind 2004) 1 Legal rights and mental health: the Mind manual (Mind 2008) 55 (ask about updates) Mental Health Act 1983: an outline guide (Mind 2008) 1 The Mind guide to advocacy (Mind 2006) 1 Mind rights guide 1: civil admission to hospital (Mind 2009) 1 Mind rights guide 2: mental health and the police (Mind 2008) 1 Mind rights guide 3: consent to medical treatment (Mind 2009) 1 Mind rights guide 4: discharge from hospital (Mind 2008) 1 Mind rights guide 5: mental health and the courts (Mind 2008) 1 Pure madness: how fear drives the mental health system J. Laurance (Routledge 2003) 16.99 Understanding borderline personality disorder (Mind 2007) 1 Understanding bipolar disorder (manic depression) (Mind 2006) 1 Understanding personality disorders (Mind 2007) 1 Understanding schizophrenia (Mind 2008) 1 Users and abusers of psychiatry: a critical look at psychiatric practice (2nd ed) L. Johnstone (Routledge 2000) 19.99 Ward Watch: Mind s report on hospital conditions for mental health patients (Mind 2004) 1 If you would like to order any of the titles listed here, please contact: Mind Publications, 15 19 Broadway, London, E15 4BQ tel. 0844 448 4448, fax: 020 8534 6399 email: publications@mind.org.uk web: www.mind.org.uk 15

Mind s mission Our vision is of a society that promotes and protects good mental health for all, and that treats people with experience of mental distress fairly, positively, and with respect. The needs and experiences of people with mental distress drive our work and we make sure their voice is heard by those who influence change. Our independence gives us the freedom to stand up and speak out on the real issues that affect daily lives. We provide information and support, campaign to improve policy and attitudes and, in partnership with independent local Mind associations, develop local services. This booklet was originally written by Simon Foster and revised by Keith Dawson. Revised edition Mind 2009 ISBN 978-1903567-61-6 No reproduction without permission Mind is a registered charity No. 219830 Mind (National Association for Mental Health) 15-19 Broadway London E15 4BQ tel. 020 8519 2122 fax. 020 8522 1725 web: www.mind.org.uk We do all this to make it possible for people who experience mental distress to live full lives, and play their full part in society. For details of your nearest Mind association and of local services contact Mind s helpline, Mindinfol ine: 0845 766 0163 Monday to Friday 9.00am to 5.00pm. Speech-impaired or Deaf enquirers can contact us on the same number (if you are using BT Textdirect, add the prefix 18001). For interpretation, Mindinfoline has access to 100 languages via Language Line. Scottish Association for Mental Health tel. 0141 568 7000 Northern Ireland Association for Mental Health tel. 028 9032 8474