ICB commissioning responsibility for detained patients

Does anyone understand the bits of the National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022 which changed the rules for who is responsible for commissioning hospital places an s117 aftercare for people detained under the MHA ?

Accoring to Section18 of the latest “Who Pays ?” guidance (NHS England, ‘Who Pays? Determining which NHS commissioner is responsible for commissioning healthcare services and making payments to providers’ (v2, 30/6/22)), the idea in relation to the MHA is that, even if a patient moves or gets placed out of area, the patient’s “home” Integrated Care Board (ICB) now remains resonsible for commissioning (and funding) their detention in hospital, any s117 aftercare, any period of informal stay before discarge onto s117 and any further detention or informal readmission whilst still on s117.

That all sounds sensible, but I’m struggling to see how the regs do that, and would welcome any enlightenment.

First, reg 3 essentially says that the “home” ICB for a patient (ie normally the one where they are registered with a GP) remains responsible for commissioning mental health services for them “during the course of the person’s detention under the [MHA]”. So during their detention the same ICB remains responsible, even if the patient changes “home” ICB (eg by registering with a GP elsewhere). Reg 7(2) then makes the same ICB responsible for any subsequent s117 aftercare (as long as the person remains resident in England).

So far so good. But what I can’t work out is how this same rule is meant to be applied to periods of informal admission (eiter before or during s117) or to redetention. Surely, by definition, an informal stay cannot form part of the “period of detention” mentioned in Reg 5(1) ? And the period of detention has to be one pursuant to a “relevant application” - which is defined in 5(3) as one that is made outside the “exclusion period”, ie NOT made while the patient is detained or on s117. So how can the reg apply to redetention under a new application made while the person is still getting aftercare ?. (In fact, it doesn’t even seem to apply to s3 appication made while the patient is detained under s2 - although I suppose the chances of a person moving from one home ICB to another while under s2 are probably quite slim).

Am I missing something ?

Secondly, Reg 5 only applies to people who are detained on the basis of an application under Part 2 MHA and who are also “qualifying patients” under s130C (ie people eligible for IMHAs). So it doesn’t apply to people detained initially under s4, to most English patients detained in hospitals in Wales (because neither are “qualifying patients”), nor to anyone detained under Part 3.

Can that be right ? If it was a mistake, does anyone know whether it has been/is being put right ? (There’s nothing in the updated “Who Pays ?” to say it’s limited like this, so I’m guessing it was a mistake, but again I might be missing something.)

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I’ve added the regulations and guidance to MHLO and added the links to Richard’s post above. I’ll have to read through them now!

In the meantime – I remember not being able to reconcile the regulations and guidance as they were in 2016, and giving up by simply stating that the guidance “should be read subject to the Regulations themselves” (see National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2016). Nobody was able to send me a copy of the 2016 guidance. And I can’t remember ever delving into the 2020 guidance…

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