Mind Rights Guide 6 Community care and aftercare 1
This booklet is designed to answer some of the more common questions you may have about getting mental health support services in the community or on leaving hospital, for yourself or for a relative. Introduction This booklet is not a substitute for a statement of the law or for legal advice. 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 specialist solicitors in your local area (see 'Useful contacts' on p. 20). this booklet (subsequently, they appear in ordinary type). Where we use section numbers, they are from the MHA. We have tried to keep technical terms to a minimum and summarised the effects of the law and good practice, where appropriate. There is a 'Legal terms' section on p. 18 to help you understand some of the people, organisations and terms you may come across during your treatment or aftercare. You may be able to get legal aid (means-tested for your income and savings) to pay for professional advice from a solicitor. For mental health tribunals, legal representation is always free. 2 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
Community care What is 'community care'? The phrase 'community care' is used to describe the various services available to help people manage their physical and mental health problems in the community e.g. nursing or social work support, home help, day centres, counselling, 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 is called 'care planning'. What is the Care Programme Approach (CPA)? The Care Programme Approach is a process of care planning used if you have significant mental health needs. It involves mental health professionals assessing your needs and drawing up a care plan, which should be reviewed regularly. A care co-ordinator should be appointed to you to ensure that the services in your care plan are put in place and that they continue to meet your needs. The care co-ordinator will usually be a mental health professional who works in a CMHT. How do I get assessed for community care services? Under the NHS and Community Care Act 1990, any person who appears to need community care services including anyone with known mental or physical health problems has the right to have their needs assessed by their local authority. The first step is a community care assessment, which is usually arranged by the local authority's social services department. The assessment should take place within a reasonable time of social services finding out that you may need community care services. You do not have to make a formal application for an assessment. 3
4 If social services know that you may need services, they should offer to assess you without you having to ask they have a legal duty. If your GP or CMHT believe that your mental health needs are not serious enough to require the Care Programme Approach, you may still have a right to an assessment of your community care needs under the NHS and Community Care Act 1990. If you are having problems getting an assessment, you should get legal advice. A mental health advocate may be able to help you with this. Call the Mind Legal Service to help you find one in your area (see 'Useful contacts' on p. 20), and see The MInd guide to advocacy for more information. Care assessment for carers (on request) 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 ask to be assessed to see if they need any help, e.g. home help support or occasional holidays from caring. Your carer's right to an assessment does not necessarily mean that they will get the services they are asking for; this will depend on what the professionals see as their 'needs'. For more about this, they can contact Carers UK (see 'Useful contacts' on p. 20). Who is involved in planning my care? If you live in the community, your care plan is usually drawn up by your care co-ordinator or your social worker with help from other professionals who will be involved in your care plan. If you are in hospital when your care plan is drawn up, your responsible clinician and other hospital staff should 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.
Which local authority will assess me and which will provide services? The local authority in the area where you live has the duty to assess your community care needs (but it is possible to ask another local authority for an assessment e.g. if you are away from home). It is up to the local authority where you live to provide services. If you are in hospital when the professionals decide that you should be assessed for community care, the local authority where you were living before you were admitted to hospital is generally responsible for providing services. 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, it is the authority where you are at the time that will be responsible for providing services. Can they take away my community care services? Community care services can be stopped or reduced if you no longer need them; however, your needs must be assessed again before this can happen. If you think you still need the same services or same level of services, you should seek legal advice. 5
Aftercare: section 117; section 17 leave; guardianship 6 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'. Your aftercare needs will be worked out after a community care assessment (see pp. 3-4). Ideally, this should take place before you leave hospital. 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 (see p. 3). If you were detained under certain other sections of the MHA, such as section 3, then you should be offered aftercare under section 117 of the MHA ('section 117 aftercare' see opposite). It is possible to question what services are included in the aftercare, but you do not always have a right to receive exactly what you ask for. (See p.16, 'Can I insist on being given community care services?') It may be helpful to have a meeting with a friend, relative or advocate to decide on your aftercare needs before an assessment or care planning meeting. What is section 117 aftercare? The aim of section 117 aftercare is to help people settle back into the community and to prevent them from going back to hospital for treatment of their mental health problems. Under this section, health and social services have a joint duty to arrange aftercare for certain people when they leave hospital. This includes anyone who has been detained (sectioned) in hospital under certain sections of the MHA (including sections 3 and 37, including 37/41) or who has been transferred to hospital under sections 45A, 47 and 48 MHA. It 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. It also applies to people who are still detained under section but are on extended leave from hospital under section 17 (see p. 8), and to patients on conditional discharge and on supervised community treatment (see pp. 11-15).
If section 117 applies to you, your needs should be assessed before you are discharged from hospital. You might find it helpful to have a friend, relative or Independent Mental Health Advocate (IMHA) with you at any discharge or care planning meeting. There is no right to any specific services it is up to health and social services to assess your needs and 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 should be consulted about your wishes and be involved in the assessment and planning process. If you disagree with the care plan, you could get advice about challenging it. You should not be charged for any services that are provided to you as part of your section 117 aftercare plan. Ending section 117 aftercare There are no clear rules in the Act for deciding when a person no longer needs aftercare, but section 117 of the MHA says that it is up to the health and social services who are dealing with your case to make a joint decision that you no longer need it. They must be able to give clear reasons for their decision and your needs must be reassessed before the aftercare is ended to see how your mental health and ability to manage would be affected. Guidance says that even if you are well settled in the community, aftercare may still continue to prevent you from getting ill again or from getting worse. 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 as part of your section 117 aftercare plan. If you were detained in hospital under section 2 of the MHA, or were in hospital as an informal (voluntary) patient, section 117 will not apply but 7
you can have your accommodation needs considered as part of your community care assessment. 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 or it could be for a weekend or longer. 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? Section 7 of the Mental Health Act says that a guardian can be appointed to you if: 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. 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, but can also be used for people with mental capacity who are considered to be vulnerable because of their mental health problems. 8 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 Approved Mental Health Professional (AMHP). The application is made to the local social services authority.
The guardian can require you to do certain things, e.g. live at a specified place, or attend particular places and times for treatment, occupation, education or training. But being under guardianship is not the same as being detained under a section of the MHA and you should still be free to come and go. Even if you are under guardianship, you should be consulted about where you are required to live under the guardianship conditions, unless you are unable to make the decision at that particular time. If your guardianship follows a section 3, you should not be charged for services as they should be free under section 117 aftercare (see pp. 6-7). If in doubt about whether you need to pay for services, you should seek advice. Objecting to guardianship You cannot prevent a guardian being appointed under section 7 of the MHA, but your nearest relative can object. 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 unreasonable delay. If your nearest relative objects, the AMHP cannot apply for you to be under guardianship without taking legal proceedings to remove (displace) your relative from acting as nearest relative. The Mental Health Act contains rules for deciding who your nearest relative is. If you do not wish this person to act as your nearest relative, you can apply to the County Court to remove (displace) this person and to appoint someone else. However, you would need to show a good reason why the person who is nearest relative under the rules is unsuitable to act as such, or is not physically or mentally capable. You might need help from a legal adviser to do this. Renewing guardianship 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. 9
10 Ending guardianship If you have been placed under guardianship, you can apply to the Mental Health Tribunal for discharge from guardianship. Your nearest relative can also discharge you from guardianship, unless he or she has been displaced (see above), in which case he or she can apply to the tribunal instead. The local social services authority can also discharge you from guardianship at any time. The guardianship will end automatically if you are detained in hospital under section 3 of the MHA.
Supervised community treatment (SCT) What is supervised community treatment? Supervised community treatment (SCT) 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). It is designed to help a person maintain stable mental health outside hospital, prevent a relapse and promote recovery. A person under a CTO must comply with certain conditions or they are likely to be recalled (brought back) to hospital and could be detained once again under their original section. The SCT will involve an element of care planning, so you should be given a care plan and a care co-ordinator. You should be involved in making your care plan, and, as long as you agree, your nearest relative, carers, GP, and other professionals involved in your care should also be consulted. Your care plan sets out who is responsible for providing particular services, and when and how this should happen, and should be reviewed regularly. You also have a right to aftercare services under section 117 of the MHA (see 'What is section 117 aftercare?' on p. 6). 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 for making a CTO are met and an AMHP must state in writing that she or he agrees 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 11
12 it is necessary for your health or safety or the protection of other persons that you should receive such treatment such treatment can be provided without you continuing to be detained in a hospital (except if you are recalled to 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. The risk of deterioration in your mental health is a key factor in deciding whether a CTO is appropriate and the responsible clinician must consider your history and "other relevant factors". However, even if there is little risk of deterioration in your mental health, it can still be used if the responsible clinician considers there is a risk of harm to you or others. 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. 8). Who can put me on a CTO? 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 (IMHA). 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. 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 they should restrict your freedom as little as possible and be expressed clearly so that you can understand what is expected. You have the right to ask questions about your CTO conditions, and the MHA Code of Practice says that reasons for the conditions should be given if you ask for them. As soon as possible after you are placed on a CTO you should be given written and spoken information about it, including how to get discharged from it. Your CTO conditions may be reviewed and your responsible clinician can change them if circumstances change or your health improves, and any changes should be reflected in your care plan. You and your AMHP should be consulted about any suggested changes, and if you agree, also your nearest relative, carers, family members and other professionals involved in your care. Can I be forced to have treatment under a CTO? Although a CTO is used for 'ensuring that you receive medical treatment', it does not allow physical force to be used to get a person to accept medical treatment for their mental health problems while they are in the community. However, if you refuse to have medical treatment that is a condition of your CTO, your responsible clinician may recall you to hospital, where you could be forced to accept the treatment. When can I be recalled to hospital? You can be recalled to hospital by your responsible clinician if he or she believes that you fit the statutory criteria for recall, i.e. 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 13
for examination by the professionals. But you should be given a chance to comply with your conditions before being recalled. The responsible clinician should also consider whether you have a good reason for not complying with any of your conditions. The responsible clinician should consider whether it is right to recall you considering all the relevant circumstances. It may be possible for you to agree to go into hospital as a voluntary patient instead. What happens when I am recalled? The responsible clinician may consider that you are under risk and should be recalled to hospital straight away, in which case you should receive written notice, by hand preferably or by post. You may then be taken to hospital, even if you don't wish to go, but you may take a family member, friend or carer with you. that they consider necessary and decide what the next steps in your care should be. 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 and continue to be treated as an outpatient. If the responsible clinician thinks you need treatment for longer than 72 hours, he or she must end (revoke) the CTO and detain you under your original section, as long as an AMHP supports this. If this happens, you may apply to the Mental Health Tribunal to be discharged from your section. 14 In hospital, you will be assessed and the clinical team will provide you with the medical treatment
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 (see pp. 11-12). 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 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). hospital managers renewing the CTO but only if the AMHP agrees. If the CTO is renewed, you will then be able to apply again to the Mental Health Tribunal to be discharged from the CTO, or you may be discharged in one of the ways mentioned above. There is more detailed information on tribunals and how to get discharged from a detention section or a CTO in Mind rights guide 4: discharge from hospital. Your responsible clinician may decide to extend (renew) your CTO instead of discharging you. To do this they must examine you in the last two months before the CTO time period ends and consider whether the criteria for extending the CTO, set out in the Act, are met. They should also consult one or more other professionals who have been involved in your medical treatment. The responsible clinician can then send a report to the 15
Your rights around care services 16 Can I be charged for my 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, and may want to charge you even if you are required to live there under guardianship (see p. 8). This may not always be lawful, so if in doubt, you should seek advice about your rights. 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 (see pp. 6-7). If you are subject to a CTO (see p. 11) 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. If you think the authorities are charging you wrongly for aftercare services, you should get legal advice about stopping them from charging you. Can I insist on being given care services? Although there is a legal duty to assess your need for services, this does not mean that you have a legal right to receive any specific service. Services will only be provided if the authorities assess you as 'needing' them, and decide that it is 'necessary to provide them'. The final decision on what you 'need' rests with health and social services. If you are assessed as having an 'eligible need', you are entitled to a service. There is national guidance about eligibility criteria which social services should use when assessing you. You may not receive the exact services you want unless the authorities agree you need them, but if you disagree with their decision, you can make a formal request for what you need, and if necessary, make a complaint or get legal advice. 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 you have been waiting for one for an unreasonable length of time. Afterwards, if you are still not satisfied, if you are in England you can complain to the Local Government Ombudsman; if you are in Wales you can complain to the Public Services Ombudsman. 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 obviously unreasonable that it can't be justified. This might be because a local authority has not followed what the law says, or has ignored certain procedures set out in guidance, and you would have to show evidence about this in court. If you believe you have a good case, get legal advice as soon as possible from a community care legal adviser or public law adviser as there are strict time limits for bringing a judicial review action to court. You could also ask if you qualify for legal aid to help pay for this. If I don't want any services, do I have to have them? You have a right to refuse any community care services offered to you and can only be forced to accept services if you are under the Mental Health Act and professionals have certain powers over you, such as: where you are on conditional discharge 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. 17
18 Legal terms Approved Mental Health Professional (AMHP) A mental health professional approved by a local social services authority to carry out duties under the Mental Health Act. An AMHP can be a social worker, nurse, occupational therapist or chartered psychologist. Community Mental Health Team (CMHT) Provides mental health care support in the community and usually includes social workers, community psychiatric nurses (CPNs), psychologists and psychiatrists. Hospital managers They make sure a hospital's responsibilities under the MHA are carried out. Independent Mental Health Advocate (IMHA) An advocate trained to work under the Mental Health Act and who is available to advise and help certain patients, e.g. those who are detained under certain sections of the MHA, are under guardianship, are on a community treatment order, or who discuss certain rare treatments with health staff. Informal patient A person being treated in psychiatric hospital, who is not detained under a section of the MHA: also known as a 'voluntary patient'. Medical treatment for mental disorder Includes nursing and also care, habilitation and rehabilitation under medical supervision (section 145 MHA) Mental Health Act 1983 (MHA) The main Act of Parliament that covers the care and treatment of people with mental health problems. It has been amended by the Mental Health Act 2007. Mental Health Tribunal (the tribunal) An independent panel that decides if a person detained under the Mental Health Act 1983 should remain subject to compulsory detention or supervision in the community.
Nearest relative Section 26 of the Mental Health Act determines who may be considered as your nearest relative a person with certain rights and powers under the Act. That person may be your next-of-kin, but you may need legal advice to check this. Responsible clinician (RC) The mental health professional with overall responsibility for a person's care and treatment in hospital. This may be a doctor but can also be some other health professional. 19
20 Useful contacts Mind's Legal Advice Service PO Box 277, Manchester, M60 3XN tel. 0300 466 6463, (Monday to Friday, 9am to 6pm) email: legal@mind.org.uk Care Quality Commission Edgeley House, Tottle Road, Riverside Business Park, Nottingham NG2 1RT tel. 0115 8736250 web: www.cqc.org.uk For complaints about the use of the Mental Health Act Carers UK tel. 020 7378 4999; (advice line) 0808 808 7777 web: www.carersuk.org Citizens Advice web: www.citizensadvice.org.uk Community Legal Advice tel. 0845 345 4 345 web: www.direct.gov.uk Healthcare Inspectorate Wales tel. 029 2092 8850 web: www.hiw.org.uk Regulates and improves the quality of health and social care and protects the rights of people detained under the MHA in Wales The Law Society tel. 020 7242 1222 web: www.lawsociety.org.uk For a list of mental health solicitors Local Government Ombudsman (England) PO Box 4771, Coventry CV4 0EH tel. (advice team): 0300 061 0614 or 0845 602 1983 web: www.lgo.org.uk The Parliamentary and Health Service Ombudsman (England) Millbank Tower, Millbank, London SW1P 4QP tel. 0345 015 4033 web: www.ombudsman.org.uk Investigates complaints about poor treatment or service provided through the NHS
The Public Services Ombudsman (Wales) 1 Ffordd yr Hen Gae, Pencoed CF35 5LJ tel. 0845 601 0987 web: www.ombudsman-wales.org.uk Investigates complaints about public bodies in Wales, including local government and NHS services Revolving Doors Units 28 29, The Turnmill, 63 Clerkenwell Road, London EC1M 5NP tel. 020 7253 4038 web: www.revolving-doors.org.uk For people with mental health problems in contact with the criminal justice system 21
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Further information Mind offers a range of mental health information, covering: diagnoses treatments wellbeing Mind s information is ideal for anyone looking for further information on any of these topics. For more details, contact us on: tel. 0844 448 4448 email: publications@mind.org.uk web: www.mind.org.uk/shop fax: 020 8534 6399 Support Mind Providing information costs money. We really value donations, which enable us to get our information to more people who need it. Just 5 could help another 15 people in need receive essential practical information booklets. If you would like to support our work with a donation, please contact us on: tel. 020 8215 2243 email: dons@mind.org.uk web: www.mind.org.uk/donate This booklet was originally written by Simon Foster and revised by Keith Dawson. This edition was written by Joanna Sulek. Revised edition Mind 2012 To be reviewed 2014 ISBN 978-1-906759-41-4 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 23
Mind We're Mind, the mental health charity for England and Wales. We believe no one should have to face a mental health problem alone. We're here for you. Today. Now. We're on your doorstep, on the end of a phone or online. Whether you're stressed, depressed or in crisis. We'll listen, give you advice, support and fight your corner. And we'll push for a better deal and respect for everyone experiencing a mental health problem. Mind infoline: 0300 123 3393 Email: info@mind.org.uk Web: mind.org.uk 24