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New guidance on who pays and commissioning responsibility

New guidance on “Who Pays?” which sets out CCG responsibility for commissioning and/or paying for a person’s care has recently been published by NHS England. It came into force on 1 September 2020.

This briefing does not deal with the totality of the guidance but focuses simply on issues relating to detention under the Mental Health Act (MHA) and section 117 MHA after-care. The guidance introduces a change to this.

Previously payment for inpatient detention under the MHA fell on the CCG for the area where the detaining hospital was located. Payment of section 117 after-care fell to the CCG where the patient was ‘ordinarily resident’ immediately prior to their detention.

Under the new rules, where a patient is detained under the MHA from 1 September 2020 NHSE has split off payment responsibility from commissioning responsibility. Although commissioning responsibility will remain unchanged, the CCG responsible for paying for the period of detention in hospital and the section 117 after-care will be determined by the general rule throughout the new guidance, namely by reference to the person’s GP registration (or usual residence) immediately prior to their detention in hospital which will be the responsible CCG. This CCG is to be regarded as the “originating CCG” for the purposes of the guidance and will retain responsibility for the section 117 after-care (and subsequent repeat detensions or voluntary admissions) until the patient is discharged from after-care.

The responsibility for paying remains with the originating CCG regardless of whether the patient then moves, or is registered with a new GP.

Commissioning and funding disputes are often complex and the guidance should be referred to in its entirety where disputes arise. It should also be noted that where there is a dispute, the new guidance stipulates a specific process for dispute resolution including a provision that the cost of care should be split 50-50 between the CCGs in dispute on a without prejudice basis until the dispute is resolved. Process for this is set out in the guidance.


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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