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A snapshot into the complexities of NHS commissioning – Who pays for s117 aftercare?

The state of the NHS is never far from the headlines, and most people have their views on the structure and effectiveness of the institution.

One approach to understanding how the NHS is organised is to “follow the money”. The question of ‘who pays’ is answered in the NHS England guidance ‘Who Pays – determining responsibility for payments to providers’. This document seeks to clarify which part of the NHS provides funding for which services and patients. For an organisation the size and complexity of the NHS, currently operating on a very limited budget, such guidance is essential.

Section 117 provides a small snapshot into the complexities of NHS funding.

Mental Health Act 1983

The Mental Health Act 1983 provides doctors with the authority to keep an individual in hospital for the treatment of a mental health condition if they are a danger to themselves or the public.

Once discharged from hospital, s117 of the Mental Health Act states that the patient is entitled to fully funded, non-means tested aftercare services, which can include the cost of accommodation if this is needed as a result of their mental health needs. Typically this could cover care home costs if the patient is an elderly person with mental health needs related to a dementia condition.

Clinical Commissioning Groups

In such cases, funding should be jointly provided by the patient’s local authority and their local Clinical Commissioning Group (CCG). CCG’s are clinically-led statutory NHS bodies, responsible for the planning and commissioning of health care services within their local area. There are 209 CCGs within England.

However, before funding can be allocated, it is vital to determine which CCG is responsible.

For example, Mrs. Smith lives within CCG A. She is admitted to hospital for treatment due to dementia-related mental health issues, and is subsequently discharged to a care home in CCG B. Which CCG should pay for her s117 aftercare at a rate of £550 per week (inclusive of her care home fees)?

Well, before August 2013, Mrs. Smith would have remained the responsibility of CCG A, because even though she was discharged into CCG B, she remained the responsibility of the CCG in which she lived before her hospital admission.

However, in August 2013, this was altered by the guidance referred to above. Under the new rules, Mrs. Smith would now be the funding responsibility of the CCG into which she was discharged – in this example, CCG B.

Tackling the confusion

However, in October 2015, NHS England published Building the right support – a national plan to develop community services and close inpatient facilities for people with a learning disability. This plan outlined a programme to close down outdated in-patient facilities for people with challenging behaviour, learning disabilities, and mental health conditions. In addition, it stated that the current s117 funding arrangements were causing delays in hospital discharge and difficulties in continuity of care.

Under the August 2013 rules, there were countless incidences where (using our example), CCG B would not accept responsibility for funding – leading to a dispute with CCG A – resulting in Mrs. Smith’s discharge being considerably delayed. Many CCGs were also reluctant to develop much-needed aftercare services within their area, so as to avoid having to fund out of area patients who would benefit from these services.

Clearly, the ‘Who Pays’ guidance needed to be revised.

What now?

Revision has now taken place, and new guidance was published on 1st April 2016. The funding position has now reverted to the pre-August 2013 arrangement, and today, when Mrs Smith is discharged from hospital she will be funded by the CCG in which she lived before her hospital admission.

This example provides a fascinating snapshot of the complexities of NHS funding; how easily disputes and confusion can arise, and how important it is to understand who is actually paying for the service which is being provided to avoid disputes and delays.

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