NHS England, 'The effect of the Worcestershire decision on section 117 aftercare duty' (undated, late 2023)
Aftercare and ICBs This guidance is part of NHS England's "Who Pays?" page (which mainly relates to the guidance document) and begins: "The position under the Integrated Care Board (ICB) Responsibilities Regulations, under which the originating ICB retains responsibility for care during subsequent detentions, even if the patient moves to a different part of the country, is not affected by the Supreme Court’s judgment in the case of R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care concerning which local authority was responsible for the provision of aftercare under section 117 of the Mental Health Act 1983."
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The effect of the Worcestershire decision on section 117 aftercare duty
The position under the Integrated Care Board (ICB) Responsibilities Regulations, under which the originating ICB retains responsibility for care during subsequent detentions, even if the patient moves to a different part of the country, is not affected by the Supreme Court’s judgment in the case of R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care concerning which local authority was responsible for the provision of aftercare under section 117 of the Mental Health Act 1983.
The case was concerned with the situation where, after being discharged from hospital the person in question moved from the area of one local authority (Worcestershire) to the area of a second local authority (Swindon). In accordance with section 117(3), Worcestershire provided her with aftercare. But when she was then detained in hospital for a second time, the court held that Swindon was responsible for her aftercare, on the basis that Worcestershire’s duty to provide aftercare ended when she was detained a second time.
In the case of the ICB Responsibilities Regulations, the continuing obligation of the originating ICB derives from the regulations, not section 117(3) itself. In particular, regulations 5 and 7 have the effect that if an ICB has core responsibility for a patient individual when a “relevant application” is made for detention, then it retains responsibility for commissioning mental health services during detention and aftercare even if it would otherwise not be responsible (eg because the patient had moved out of area). A relevant application is an application made either before or after an “exclusion period” beginning with detention and ending with a person’s “next discharge from aftercare services”. So, unlike the local authority position in Worcestershire, a second detention made before the person is actively discharged from after care does not bring to end the responsibility of the originating ICB.
Similarly, where under the transitional provisions in regulation 6, an ICB had core responsibility for a person who was detained or in aftercare on 1 July 2022, the responsibility for mental health services continues during any second or subsequent detention and related aftercare, and is not brought to end by a second or subsequent detention, only by an active discharge from aftercare.
See also
- NHS England, 'Who Pays? Determining which NHS commissioner is responsible for commissioning healthcare services and making payments to providers' (v2, 30/6/22)
- R (Worcestershire County Council) v SSHSC [2023] UKSC 31
- National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022