Just been reading the Worcestershire decision from the Supreme Court. Paragraph 53 says
" 1. We do not agree, however, that this consequence follows. What takes a person outside the class of persons specified in section 117(1) to whom section 117 applies, and thereby terminates the duty under section 117(2), is not admission to hospital or detention simpliciter but detention under section 3 of the 1983 Act (or one of the other provisions mentioned in section 117(1)) for treatment for mental disorder. Further, under section 117(6) after-care services are directed at reducing the risk of admission to hospital for “treatment” and to admission to hospital “again” for such treatment. This is clearly referring to further treatment under section 3 of the 1983 Act (or the other provisions referred to in section 117(1)). Where after-care services have not avoided that risk eventuating and there has been readmission for such treatment, there is no room for the continued provision of services which are aimed at reducing that specific risk. The same does not apply in relation to other admissions to hospital. It is wrong to suppose, therefore, that a voluntary admission to hospital or admission for assessment could lead to permanent loss of the right to receive after-care services.
So, if a person placed in area B, where area A holds an ongoing s117 responsibility, goes into hospital either voluntarily or under s2 in area B, could the Trust/ICB in area B recharge the cost of admission to the Trust/ICB in area A? They would have to be saying that the hospital admission is part of the person’s aftercare, and is aimed at preventing the need for the use of a s3.
I believe you’re over-thinking this, Nick.
s117(6) talks about after-care reducing the risk of deterioration “requiring readmission to hospital”. This doesn’t differentiate between informal admission or detention, or between s2 and s3. It’s just admission.
I’m not sure why you say that this is clearly referring to further treatment under s3.
And if the person has been readmitted, then the need to prevent readmission has not worked for the time being. The ‘after-care’ will restart on discharge.
Hi Steve, I hope everyone takes your approach. I’ve seen some strange decisions over the years when it comes to ICBs deciding who is responsible for what. That can be OK as long as the discussions happen behind the scenes, with no impact on the person receiving the service.The most frequent nonsense I’ve seen is the ‘automatic’ transfer of detained patients back to wherever they have a GP registration. usually very vulnerable people who may be homeless, or who have moved around a lot. They register temporarily with a GP in one part of the country, then carry on moving around with no need to see another GP for years. Then, they have become as settled as they ever have been in an area and end up detained in hospital. An almost unstoppable bureaucratic process starts, and they can be transferred back to the place where they still have that GP registration- despite having no connection with that place. This can be very disruptive to the person concerned, and creates the risk of poor communication of immediate circumstances to the eventual hospital. For example: pfd (judiciary.uk)
I’m just trying to predict potential problems rather than advocate a new understanding of aftercare.
Also, to be fair to Nick, it is their Lordships not Nick saying that “This is clearly referring to further treatment under section 3 of the 1983 Act”. I think they are wrong about that, for the reason Steve gives. Probably doesn’t matter all the same…
I can see Nick’s point: if the Supreme Court are right in their “further” proposition involving the s117(6) aftercare definition then it seems to follow that aftercare services would include informal/s2 admissions to hospital. I agree that they are wrong, as the definition must be referring to any hospital admission. I think it’ll fine to work on the basis that aftercare services do not include informal/s2 admissions, either because the bit we think the Supreme Court got wrong wasn’t really a necessary part of their reasoning (which is that once you’re detained again under s3 etc you’re no longer within the class of “persons who are detained under section 3… and then cease to be detained and … leave hospital”, and so the old s117 duty ends) or just because it’s absurd to call inpatient treatment “aftercare”.
I agree that their Lordships didn’t quite get that bit right, presumably because they were anxious to confirm that informal/s.2 admission does not end the s.117 duty. I also agree that it makes no sense to claim that the subsequent s.2 admission is part of the person’s aftercare. In which case, for the s.2, presumably you should disregard the underlying s.117 and treat the person as a new admission, applying normal NHS funding rules- but I can see Nick’s point that this is not obvious and is likely to lead to ongoing confusion among commissioners. Maybe the next iteration of the ‘Who Pays?’ guidance should expressly address this?
I think I agree with Simon, though I don’t know exactly what the “normal NHS funding rules” are… I guess that if the patient is admitted to hospital in Area B then that area would pay under those rules, whether the admission is under s2, s3, informal, or whatever. During s3 (or equivalent) admission no s117 duty exists (so it can’t be s117 that decides who pays) and I don’t think an ongoing s117 duty would be relevant during non-s3 admission either. I have to admit I’ve never got my head round the medical half of s117 funding, so maybe I’m barking up the wrong tree.