An overview of how the new Who Pays Guidance affects commissioning and financial responsibility for Section 117 Aftercare

The new Who Pays guidance from NHS England has amended the legal framework for establishing the responsible health commissioner for s.117 aftercare. In summary the guidance makes a new, bold distinction between commissioning responsibility and financial responsibility.

Background

Prior to the introduction of this new guidance there was significant confusion among health and legal practitioners on how to establish s.117 aftercare responsibility when a person was geographically mobile. This stemmed not only from several overhauls of the legal framework in a short space of time but also from a contradiction between the legal position set out in the previous Who Pays guidance and that set out in the Mental Health Act. In brief, the old Who Pays guidance appeared to stick s.117 aftercare responsibility with the CCG where the person was registered with a GP at the point of their initial qualifying detention whereas the Mental Health Act appears to reset responsibility with each repeat detention based on where the person was ordinarily resident at the time of the repeat detention. Therefore where a dispute arose over s.117 aftercare, those involved had to decide whether to follow the guidance or follow the statute. Inevitably this caused significant confusion and the escalation of disputes.

The New Legal Framework

The new guidance attempts to fill the void between the previous guidance and the Mental Health Act by making a distinction between commissioning responsibility and financial responsibility for s.117 aftercare. The position in the new guidance adopts that of the previous version but it now only refers to financial responsibility, not commissioning responsibility. The new position on commissioning responsibility is roughly akin to that in the Mental Health Act.

In summary, for patients detained on or after 1 September 2020, the responsible commissioning health body for s.117 aftercare will be the CCG where the patient was ordinarily resident immediately prior to being detained.  This only refers to commissioning responsibility however; the determination of financial responsibility will be worked out differently, in accordance with where the person was registered with a GP at the time of their initial qualifying detention for s.117 aftercare under the Mental Health Act (“the originating CCG”). Financial responsibility sticks with the originating CCG until the person is discharged from s.117 aftercare and it also includes responsibility for any informal admissions and repeat detentions.

Transitional Arrangements

The guidance also sets out the transitional arrangements that will apply to those persons in receipt of s.117 aftercare or detained on 1 September 2020. For those persons in receipt of s.117 aftercare, the CCG funding this aftercare on 1 September 2020 will retain responsibility until that person has been discharged from s.117 aftercare. For those persons detained on 1 September 2020 funded by a CCG, the CCG funding the detention on that date will be financially responsible for that person’s aftercare until they are discharged from s.117. If a person is detained in a hospital funded by NHS England, the originating CCG will be financially responsible for that person’s aftercare until they are discharged from s.117.

Analysis

As a firm advising clients regularly on responsible commissioning issues, we are well aware of the difficulty practitioners were experiencing in trying to establish s.117 responsibility for geographically mobile persons in the face of contradicting legal statute and government guidance. We therefore very much welcome any attempt to clarify what was an extremely confusing situation. We also applaud the underlying justification for the new guidance; to eliminate any perverse financial incentive for out of area placements and to encourage CCG’s to build up in area capacity.

However, although it might neatly tie up the issues of the contradiction between the statute and guidance and it may be based on good intentions, there remains a host of issues that practitioners will be left to navigate alone as they are not covered in the updated guidance. Perhaps the biggest of these is the commissioning / financial split as there will inevitably be scenarios where s.117 is paid for and organised by different CCG’s. There is no guidance on how different CCG’s should work together except to refer to the Mental Health Act Code of Practice that encourages commissioners “to deliver a holistic, whole person approach to care that is reflective of clinical best practice and quality.” This does little to appease health bodies’ concerns over situations where they are left footing the bill for s.117 aftercare package but have no input in to the commissioning arrangements.

We also think the transitional arrangements could prove confusing. For example, it is not entirely clear which CCG would be responsible for the section 117 aftercare package of a person detained on 1 September 2020 as a repeat detention if the detention is being paid for by a different CCG to that responsible for the person’s s.117 aftercare. There are also likely to be other situations that do not neatly fit into the guidance provided and the limited examples contained therein.

Furthermore, by ensuring that financial responsibility for aftercare and repeat detentions fix with the originating CCG, there is now a difference between health and social care with respect to s.117 financial responsibility, albeit the position on social care is currently subject to an appeal and indications from the Secretary of State suggest it may be amended. Even if the social care position is amended however, unless a commissioning / financial split is put in place that mirrors the health position, there will still be a marked difference between health and social care for determining responsibility and joint s.117 aftercare planning is likely to be subject to much confusion and potential delay.

For more information on the position regarding social care and responsibility for s.117 and the recent decision in R (Worcestershire County Council) v Secretary of State for Health and Social Care v Swindon Borough Council [2021] EWHC 682 Admin, please see our summary here.

We can help

We regularly advise commissioners, both individually and jointly on issues relation to s.117 aftercare, including establishing the responsible commissioner. For more information please contact Ruth Atkinson-Wilks or Anna Davies.