Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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Section 117(1) and (2) of the Mental Health Act 1983 imposes a duty on CCGs and local authorities, in co-operation with relevant voluntary agencies, to provide or arrange for the provision of aftercare services for individuals who have left hospital.
Section 117(1) and (2) of the Mental Health Act 1983 imposes a duty on CCGs and local authorities, in co-operation with relevant voluntary agencies, to provide or arrange for the provision of aftercare services for individuals who have left hospital after ceasing to be detained under ss.3, 37, 45A, 47 or 48 of the MHA.
Section 117(3) goes on to explain how the responsible CCG and local authority, upon whom this duty falls, should be identified:
In this section "the clinical commissioning group"…means the clinical commissioning group … and the "local social services authority" means the local social services authority for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.
In April 2013 the bulk of the Health and Social Care Act 2012 came into force. This brought an overhaul of commissioning with amendments introduced to s.117.
Prior to April 2013, CCG responsibility for aftercare under s.117 MHA was determined by the patient's residence (in the ordinary plain English sense) immediately prior to detention.
Section 40 of the Health and Social Care Act 2012 introduced amendments into s.117 MHA that empowered the Secretary of State for Health to publish regulations to change CCG responsibility. In accordance with that power the Secretary of State published the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (SI 2012/2996), which are complex. However, by virtue of Reg.14, they bring CCG responsibility for s.117 aftercare into line with CCG responsibility for commissioning health services generally – i.e. in accordance with the NHS Act 2006. Therefore CCG responsibility (as reflected in paragraph 1 of the Guidance (see below)) for s.117 aftercare now lies in accordance with:
The main criteria for assessing 'usual residence' is the "patient's perception as to where they are resident in the UK (either currently or most recently). Where the patient gives an address, they should be treated as usually resident at that address".
"Where a patient cannot, or chooses not to give a current or recent address, and an address cannot be established by other means, they should be treated as usually resident in the place where they are present".
The regulations have brought a fundamental change to CCG responsibility for commissioning s.117 aftercare. It appears that it was Parliament's intention to place CCG responsibility for commissioning aftercare with the CCG responsible for commissioning the patient's healthcare generally.
This interpretation accords with the position set down in the NHS England's Guidance "Who Pays? Determining Responsibility for Payment to Providers" (August 2013) (the Guidance), in particular paras.33-34 which state:
33. If a person is detained for treatment under the Mental Health Act 1983, the Responsible Commissioner will be as set out in paragraph 1. Every effort should be made to determine GP Practice registration or establish an address where they are usually resident, but if this fails and the patient refuses to assist, then as a last resort the Responsible Commissioner should be determined by the location of the Unit providing treatment.
34. It is the duty of the CCG and local social services authority to commission aftercare (for those persons discharged from hospital following detention) under s.117 of the Mental Health Act. The responsible CCG should be established by the usual means (see paragraph 1). If a patient who is resident in one area (CCG A) is discharged to another area (CCG B), it is then the responsibility of the CCG in the area where the patient moves (CCG B) to pay for their aftercare under s.117 of the Act as agreed with the appropriate local social services authority.
The Guidance also outlines the following responsibilities in relation to patients who have moved as follows:
|Situation||CCG A||CCG B||Responsible Commissioner|
|Patient not yet moved||Registered and resident||-||CCG A
|Patient who has moved to area of CCG B||Registered||Resident||CCG A|
|Patient moved||De-registered||Resident but not yet registered||CCG B
|Patient moved||-||Registered and resident||CCG B|
Further, as a general principle, legislation and regulations do not have retrospective effect unless expressly stated. The Regulations as currently drafted do not provide for any exclusion on the basis of the date of the s.117 decision, but equally there is nothing in the Regulations to suggest that they are intended to apply retrospectively. As such there is an argument that responsibility will be determined in accordance with current GP registration irrespective of the date that the person was detained under section. However there is an equally strong counter argument that they apply from 1 April 2013 onwards only.
For patients detained and discharged after 1 April 2013, CCG responsibility for commissioning aftercare will clearly fall to the CCG responsible for the area of the patient's GP registration.
What is not clear, and we have requested clarification from NHS England on this issue, is the position for those patients who were already in the aftercare system – i.e. those patients who became eligible for aftercare (by virtue of a qualifying provision of the MHA) and those who have been discharged into aftercare prior to 1 April 2013. It is not suggested that historical liabilities be reopened, but there is a problem with a lack of any transitional provisions.
In the absence of specific guidance, a sensible approach for CCGs to determine the funding for patients could be as follows:
The other point to outline is whether funding responsibility is fixed or whether it moves to a new CCG whenever a patient moves and registers with a new GP? At present the way that the regulations are drafted suggest that currently responsibility passes to the receiving CCG with every GP re-registration. Again we are hoping to obtain some clarity on this issue from NHS England.
Put simply, the regulations apply to Clinical Commissioning Groups (CCGs) only.
The regulations specifically do not apply to nor alter the identification of the responsible local authority. Therefore the identification of the responsible local authority remains unchanged, and continues on the basis of residence immediately prior to detention. Consequently the local authority responsible will be the local authority in the area where the individual was resident immediately prior to detention. Clearly this does not create a joined up approach, and can leave a local authority either liaising with a CCG or being responsible for a patient who is many miles from its region. It will also have an impact on areas with Section 75 Agreements where CCGs provide the s.117 social care on behalf of the local authority.
The Guidance makes it clear that disputes as to responsibility for commissioning / paying for care must not cause delay in the provision of treatment or services to the patient. The patient should receive those services, and the organisations can deal with the funding issue separately, through arbitration if necessary.
At Bevan Brittan we are experienced at advising around disputes concerning individual long term care packages. In view of the above requirement not to cause delay to a patient, we can work in partnership with Commissioners to seek effective and pragmatic solutions.