Disputes all too often arise between healthcare providers and social services authorities as to who is responsible for funding after-care. This can often result in a complex web of considerations, against which the solution is not always easily apparent. We consider the latest changes in legislation and recent guidance to see whether the complexities behind such disputes have in some way been minimised.

Background

Section 117(2) Mental Health Act 1983 (MHA) imposes a duty on the NHS and social services authorities to provide after-care services to certain patients who have been detained under the MHA. The duty requires co-operation with other after-care service providers until such time that the patient no longer requires such care.

Section 117(3) MHA confirms the relevant authorities for an area are those in the area in which the patient concerned is resident or to which he is sent on discharge by the hospital in which he has been detailed.

New rules

The Health and Social Care Act 2012 (2012 Act) came into force in April 2013 and amends s.3 National Health Service Act 2006 (2006 Act).

The newly amended Section 3(1A) of the 2006 Act sets out that a clinical commissioning group (Group) has responsibility for:

  • People who are provided with primary medical services by a member of the Group (i.e. a GP), and
  • People who usually reside in the Group’s area and are not provided with primary medical services by a member of any Group.

The general rule is therefore where a patient is registered on the list of NHS patients of a GP practice, the responsible commissioner will be the Group of which the GP practice is a member. Where a patient is not registered with a GP practice, the responsible commissioner will be the Group in whose geographic area the patient is usually resident.

Section 117 duty

The duty under s.117(2) MHA to arrange the provision of after-care services falls on the Group and the social services authority for the area in which the patient was resident at the time of detention or, if they had no residence at that time, the area to which they are sent on discharge.

But what happens if a patient is registered with a GP outside the area in which they are resident? Regulation 14 of The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 sets out that where a Group has responsibility for a patient under Section 3(1A) of the 2006 Act, the duty under s.117 (2) MHA is to be imposed on that Group. These Regulations seek to ensure that the Group responsible for commissioning after-care is the same as that meeting the patient’s other health needs.

In practice, whilst we have seen some social services authorities seek to argue the Regulations also apply to them, s.117(3) MHA has not been amended. Therefore, the social services authority responsible for provision of after-care remains the authority for the area in which the patient is resident or, where they have no residence, the area to which they are sent on discharge.

Guidance and examples

The NHS Commissioning Board is due to issue guidance to providers on determining responsibility for payments. Whilst this has not yet been finalised, draft guidance, "Who pays? Determining responsibility for payments to providers" is available and provides the following helpful examples:

  • A patient who was registered with a GP and/or resident in Group A prior to being detained for treatment is provided after-care services on discharge in Group B, where he registers with a new GP:
    • Group A is responsible for funding the after-care.
    • The social services authority for the area in which the patient was resident prior to discharge is responsible for providing the after-care.
  • A patient who was detained for treatment in Group C, is not registered with a GP and has no current residence, is provided with aftercare services in Group D:
    • Group D is responsible for funding the after-care.
    • The social services authority for the area in which the patient was sent on discharge is responsible for providing the after-care.
  • A patient who was registered with a GP in Group E but resident in Group F prior to being detained for treatment is provided with after-care services on discharge in Group G:
    • Group E is responsible for funding the after-care.
    • The social services authority for the area in which the patient was resident prior to discharge is responsible for providing the after-care.

View the draft guidance on the NHS website

Conclusion

This is a complex area of law and, based on our experience, most cases which raise these issues are best decided on a case by case basis. Nevertheless, the draft guidance goes some way to demystify the process and authorities are urged to read it.