Section 117 and 'Who Pays?' (latest statutory guidance on discharge)

The Statutory Guidance on discharge from mental health inpatient settings (published on 26 January) includes in Principle 8 (on funding mechanisms) a link to the latest ‘Who Pays?’ update on the government website.

That link includes the following statement:

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.

So the ICB Responsibilities Regulations trump the primary legislation in the Mental Health Act?

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Interesting. Yes, the regulations do trump the words of the Act, because of s117(2E) (which gives the power to make regs to shift s117 duties from one ICB to another).

I think the note to Who Pays ? that you spotted is correct insofar as it relates to most Part 2 patients. Redentions won’t change which ICB is responsible for s117, unless the patient has already been discharged from aftercare.

But if I’m reading the regs correctly (by no means a given) I am not sure that would be true for all Part 3 patients (or for Part 2 patients detained in secure services commissioned by NHS England). For them, I think there may be some scenarios where redetention could still trigger a change of s117 responsibility. But it’s all a bit complicated.

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OK now I feel thick.
The Worcestershire ruling said that redetention constitutes a termination of s117 duty because “upon a person’s second detention, he/she is no longer a person who has ‘ceased to be detained’ …”
Are we now saying that that’s wrong?
Does the person have to be “actively discharged from after care” (i.e. assessed as having no needs which arise out of a mental disorder)?

That’s my understanding too Andy and, it seems to be the understanding from other LAs (we’ve had a couple of recent approaches from LAs to take over funding following re-detention). Our ICB and others around have agreed to retain responsibility though rather than transferring the responsibility.

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Hi all,

I attended a webinar last week and asked about S117 and ICB’s - and it is the host ICB that is responsible as the ruling was all about OR. You can hear the response via this link (time is 1.10.25) - The Mental Health Act 1983, a year in review | Events | Garden Court Chambers | Leading Barristers located in London, UK

Take care,

I have just read the the Who Pays update NHS England » Who Pays? which Steve shared earlier and I am now really confused. It clearly records the Worcestershire judgment does not affect ICB responsibility, as said, regulations trump S117(3).

The ‘Who Pays?’ Guidance expressly says that the ICB’s responsibility continues through redetention and any subsequent period of aftercare, unless it was discharged prior to the redetention. So you are correct, Andy, that the aftercare ceases upon redetention, as the Supreme Court stated, but it makes no difference to the ICB responsibility because the Guidance and its underpinning Regulations say it doesn’t.

Normally Regulations can’t overrule statute, but in this case, as Richard Rook says, statute was amended by s.117(2E) to allow this to happen. Presumably it was easier doing this than amending s.117(3) itself.


I’ve been looking at these regulations more closely. They are not easy to understand.

Basically, the idea of Reg 5 is that when someone is detained under the MHA from 1 July 2022 onwards, the same ICB will remain responsible for commissioning all their mental health services while detained until they are no longer subject to either detention or s117 aftercare. So, if they are discharged and then get redetained while still on s117, the same ICB remains responsible for the new detention, even if the patient has moved. That ICB will be the one with “core responsibility”, for commissioning other NHS services for them, as defined in para 10.2 of Who Pays ? (typically the ICB where the patient ia registered with a GP ).

Reg 6 applies the same ongoing duty to people who were already detained or on s117 as of 1 July 2022, except the ICB in those cases is the one with “core responsibility” as at 1 July 2022 (though a different ICB may have to pay in some cases - see final point below).

Reg 7(2) then says that an ICB responsible for a detention is also responsible for any s117 aftercare that follows it.

Put together, that should mean that as long as someone eligible for s117 is never discharged from it before being redetained, the ICB responsible for the NHS aspects of their s117 aftercare will remain the same however often they are redetained.

Unfortunately, if I’m reading the regs right, there will still be a few cases where it’s not quite as a simple as that, or as Who Pays ? says it is.

First, the ongoing duty in Reg 5 only seems to be triggered in the first place by applications under Part 2 MHA, whereas the duties for pre-July 2022 cases in Reg 6 are triggered by both Part 2 & 3 sections. I’ve no idea why - it may just be a drfating mistake. But the effect is that the same ICB won’t necessarily remain responsible for detention if someone detained for the first time after 1 July 2022 under (say) s37 is discharged onto aftercare, and is then redetained after moving (or being moved) between start of the two detentions. That’s because Reg 5 won’t apply and responsibilty for the new period of detention will be determined by whichever ICB now has “core responsibility” for the patient under the normal rules in Who Pays ? And, thanks to Reg 7(2), if responsibility for detention changes it will also change for any subsequent s117. Who Pays ? doesn’t mention this at all - so para 18.3 isn’t setting out the full picture.

Second, where NHS England, rather than an ICB, is responsible for someone’s detention (eg because they’re in secure services or Tier 4 CAMHS) and they are discharged to aftercare on or after 1 July 2022, Reg 7(2) doesn’t apply. Reg7(5) applies instead and says that the ICB responsible for s117 is the one with “core responsibility” at the start of the detention (or at the date of discharge if the detention started before July 2022), Who Pays ? explains this (para 18.13). But it doesn’t go on to explain that this could (I think) mean that responsibility for s117 may change after redetention if the patient has moved (or been moved) between the start of the two detentions. That’s because Regs 5 & 6 don’t (as far as I can work out) actually change which ICB has “core responsibility” for NHS services, they just mean that sometimes a different ICB has a special responsibility for detention and aftercare instead. Reg 7(5) refers to the former, not the latter.

Third, the ongoing duty in Regs 5 & 6 only applies to “qualifying patients” as defined in s130C MHA. By definition, therefore, they do not apply to English patients while they are detained in hospitals in Wales. I assume this is a drafting error. But again it means that Who Pays ? para 18.3 is not giving the full picture, because there could be circumstances where the ICB responsible for both detention and aftercare would change if someone is detained in an English hospital, discharged to after-care, then redetained in a Welsh hospital (or v.v.)

Quirkily, the reference to “qualifying patients” also means the ongoing duty in Regs 5 & 6 doesn’t apply while patients are detained under s4 MHA. So technically, sometimes a different ICB will be responsible for commissioning and paying for patient’s care until a second medical recommendation arrives to turn a s4 into a s2. That doesn’t affect s117, of course.

Another oddity in the drafting is that Reg 5(3) says (in effect) that the ongoing duty on the first ICB only ends when a detained patient has been discharged from aftercare. But what about a s2 patient who was never eligible for after-care in the first place ? Does the same ICB remain responsible for any future detentions unless or until the patient finally does become eligible for aftercare and is discharged from it ? That would be nonsensical, so I hope we can assume that isn’t how a court would interpret it.

Finally I note para 18.8 of Who Pays ? distnuishes between which ICB has to commission detention (and therefore aftercare) under Reg 6 (pre-July 2020 cases) and which one actually has to pay for it. This is intended to provide continuity with the rules on payment that were in place in the previous version of Who Pays ? Unfortunately, it only seems to deal with people first detained before September 2020. It couldn’t see anything about people first detained between then and July 2022.

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Thanks, Richard.
You have just confirmed my suspicion that the rules around ICB responsibilities are totally incomprehensible. :thinking: