Without a doubt, s117 aftercare responsibilities constituted the principal area in the 2013 edition of Who Pays? (WP) that was, long before 2020, crying out for a complete overhaul. Appearing out of the blue when CCGs were first created, the GP-registration-in-discharge-destination-trumps-all rule (in force from 1 February 2013 to 31 March 2016) set the document’s vintage in stone. Although the rule itself was finally dispatched on 1 April 2016, paragraph 34 of WP remained, as if convinced that the rule revocation were merely an April Fool. This unfortunately tarnished the guidance irreparably and one discrete outdated paragraph became, anecdotally, “A wholly inaccurate document that we surely shouldn’t be following?” Even when the notorious 2.10 amendment ambushed us with its insistence on being an updating document, we were never entirely sure of its status; of uncertain provenance (despite its NHSE badging) it was viewed with suspicion from the start and was never destined to win hearts and minds.
“It's all just a little bit of history repeating….”?
But now the slate has been wiped clean, the previous confusion acknowledged and a genuine attempt made to clarify the undoubted ambiguities that cloud this area. With one small caveat. Because there is always one, isn’t there? Four lines into section 18 of the guidance, we find the following words:
Pending any new legislation to be put forward or guidance to be published, in due course, by the Government (including in response to the independent review of the Mental Health Act), we are therefore clarifying the position as set out below.
So much for certainty! Of course, the obvious solution would be to make the online version of the document the sole official controlled version, so that it could be updated as required, and it may indeed be that this is the intention.
Before we get down to the substantive rules set out in the new edition, it is important to draw attention to paragraph 18.2 where the authors make the point that, where the word “detained” is used in WP, it is used in the Mental Health Act 1983 Reference Guide sense:
The arrangements set out here apply to all those who are ‘liable to be detained’; this includes those patients in fact detained, as well as others such as patients who have been given a leave of absence from hospital (such as s17 leave) or are subject to an application but not yet physically detained. (See Reference Guide to the Mental Health Act 1983, paragraphs 1.37-38.)
For the avoidance of doubt, paragraph 18.7 points out that detention for assessment under s2 MHA 1983, whilst not triggering a right to s117 aftercare, does constitute ‘detention’ for the purposes of the payment rules, whereas removal by the police to a place of safety under s136 does not.
Because the detention and aftercare areas of commissioning and payment fall within the ‘exceptions’ category (ie: Section D of WP) where the two activities are not aligned to one body, the payment rules actually begin by talking about the non-payment (ie: the commissioning) rules for detentions and for s117 services:
You might expect the rule for detentions to follow the general rule for commissioning responsibility set out in the NHS Act 2006 (ie: GP registration or, if no GP registration, ‘usual residence’), while the rules relating to aftercare packages should follow s117 MHA 1983, read with regulations 14 and 15 of the Standing Rules Regulations 2012 (as amended) but BEWARE! This is not the case for commissioning responsibility for detentions. Whilst the most basic rule for s117 packages (requiring you to look at where the individual was ‘ordinarily resident’ immediately prior to detention) is set out as expected, the rule for detentions may catch you out:
The rule relating to detentions is that you look to the commissioner in whose area the provider of the detention services is based. This is because CCGs, in addition to having responsibility for those patients who are registered with their GP practices or, having no GP registration, are ‘usually resident’ in the CCG’s area, are also responsible for an assortment of other categories of individual. These categories are set out in those dusty corners of the Standing Rules Regulations with which only we dusty lawyers tend to be acquainted! One of these categories relates to so-called ‘qualifying patients’ – ie: individuals who ‘qualify for’ advocacy (IMHA) services – who are liable to be detained in a hospital or registered establishment in the CCG's area. As we have already seen, the phrase ‘liable to be detained’ includes, somewhat perversely, those who are in fact already detained. The result? The commissioning arrangements for a detention should be made by the CCG in whose area the detaining hospital is located.
So far, so clear. But as paragraph 18.4 begins:
If this position on commissioning responsibility applied equally to responsibility for payment, it would create a financial incentive for CCGs not to commission local capacity for detained patients – because, if patients were instead detained in a hospital outside their local area, they could escape responsibility for paying for the period of detention. Such a position would be entirely perverse, acting against the direction of national policy, which is to support the provision of care as close to patients’ homes as possible and to minimise reliance on out-of-area placements.
To avoid this situation, therefore, NHS England is making explicit use of its section 14Z7 powers to state that the rules for determining responsibility for payment are to be different from the legal position on responsibility for commissioning.
It then sets out the rules on payment responsibility (and NOTE that what begins with a rule for detentions glides effortlessly into one covering s117 aftercare too) as follows:
- NHS England is responsible for paying for any period when P is in receipt of a prescribed specialised service (eg: high, medium or low secure adult services).
- The CCG otherwise responsible for payment is determined by applying the “general rules at paragraph 10.2 above, applied at the point of the patient’s initial detention in hospital under the Act (whether for assessment or treatment)”. This CCG is known as the “originating CCG”. So this means you apply the GP registration rule or, if P has no GP registration, you look to the CCG in whose area they are ‘usually resident’.
- Having identified this “originating CCG”, it will then retain responsibility for payment throughout the initial detention (including any period of informal admission following detention, when P remains in hospital on a voluntary basis), for the entire period for which any s117 aftercare is provided, and for any subsequent detentions or voluntary admissions from aftercare, until such time as P is finally discharged from s117 aftercare. And this is regardless of where P is treated or placed, where (s)he lives and where (s)he has GP registration. So, for those with a fondness for genealogy, the approach foreshadowed by the 2.10 addendum has been further developed and set out with greater clarity, with a switch from ‘ordinary residence’ to GP registration/’usual residence’ as the identifier of the originating CCG.
These arrangements do not apply where an individual is deprived of their liberty under the MCA 2005 but not detained pursuant to the MHA 1983, nor should they be applied to determine who should commission and pay for any services received in parallel with s117 aftercare, such as NHS-funded nursing care or NHS continuing healthcare, which have their own specific rules.
In a neat sidestepping of the difficulties potentially engendered by this commissioner/funder split, the authors emphasise that the guidance does not seek to describe quite how this collaboration between all parties should work to ensure that P receives the care appropriate to their needs; as far as that goes, folks, we’re on our own!
That said, the motivation behind these rules is clear: out of area placements are to be avoided wherever possible and, if the originating CCG retains funding responsibility, any incentive to place P out of area to seek to abdicate responsibility when they become ordinarily resident there is necessarily removed. Of course, out of area placements cannot always be avoided and the primary incentive must always be to source the most appropriate care possible for the individual, wherever that may be.
Where P is detained in hospital for the first time on or after 1 September 2020, the above rules should be applied to determined responsibility for payment. But, to take account of inconsistent practice across the country hitherto, where P was on 1 September already either detained or in receipt of s117 aftercare, the following mandatory transitional rules will apply:
- Where, at 1 September 2020, P has been discharged from detention and is already receiving s117 aftercare funded partly or wholly by a CCG, that CCG will remain responsible for funding the aftercare - and any subsequent further detentions or voluntary admissions - until such point as P is discharged from s117 aftercare.
- Where, at 1 September 2020, P was detained in hospital funded by a CCG, that CCG will be responsible for funding the full period of detention and any necessary NHS aftercare on discharge - and any subsequent further detentions or voluntary admissions - until such point as P is discharged from s117 aftercare.
- Where, at 1 September 2020, P was detained in hospital funded by NHS England, the CCG which will be responsible for funding any further detention in a CCG-funded hospital setting, and any necessary NHS aftercare (including any subsequent further detentions or voluntary admissions, until such point as P is discharged from s117 aftercare) will be determined on the basis of the general rules at paragraph 10.2 (ie: GP registration/usual residence) applied at the point of P’s initial detention in hospital under MHA 1983.
The final four pages of guidance relating to detentions and aftercare set out eleven examples covering a broad variety of scenarios where these rules will need to be applied, complete with solutions. Any ‘real life’ disputes over responsibility will need to submit to the new dispute resolution process which we outlined in our first article.
On the whole, the ‘new’ rules seem to have been set out with a helpful degree of clarity. Those CCGs with specialist mental health units on their patch will no doubt also draw comfort from the “originating CCG” concept, imported from NHS continuing healthcare, to forestall those rare instances where there may be a financial incentive to place a high cost patient out of area, while the worked examples should provide a useful resource for all, not least where a patient is in receipt of multiple strands of care which have a nasty tendency to defy any neat attempt to pigeonhole.
Once again, we look forward to hearing how you find the new rules work out in practice!
You can read the first article here and our blog post in this series