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.
