OpenLegislation

Explanatory note

Original text. Later amendments are not shown.

(This note is not part of the Regulations)

These Regulations prescribe additional persons for whom an Integrated Care Board (“ICB”) has responsibility to arrange for the provision of certain services under the National Health Service Act 2006 (c. 41) (“the NHS Act 2006”). These Regulations also impose the duty to provide mental health after-care services on an ICB other than the ICB subject to the duty imposed by section 117(2) of the Mental Health Act 1983 (c. 20) and also set out the circumstances in which that duty is imposed on NHS England.

Under section 3 of the NHS Act 2006, an ICB has a duty to arrange the provision of certain services and, under 3A of that Act, a power to arrange the provision of other services, for people for whom it has responsibility. An ICB has responsibility for persons for whom it has core responsibility (as to which, see section 14Z31 of the NHS Act 2006) and for such other persons as may be prescribed.

Part 2 of this instrument prescribes those other persons for whom an ICB has responsibility. Regulation 3 and the Schedule provide that an ICB has responsibility for—

  • every person present in the ICB’s area who is not a person for whom the ICB has core responsibility, in relation to the provision of emergency ambulance services or accident and emergency services, whether provided at a hospital accident and emergency department, an urgent treatment centre or elsewhere (but excluding any services provided after the person has been accepted as an in-patient, or at an out-patient appointment) (paragraph 2(a) of the Schedule);

  • certain persons aged 18 or over under arrangements made by the ICB (or the ICB acting jointly with a local authority) being provided with accommodation in a care home or independent hospital in the area of another ICB or Local Health Board and at least one other planned service, and who would not be a person for whom the ICB has core responsibility (paragraphs 2(b) and 3 of the Schedule);

  • certain looked-after children or children placed, under arrangements made by the ICB (or the ICB acting jointly with a local authority), in accommodation (in specified settings) in the area of another ICB or Local Health Board and who would not be children for whom the ICB has core responsibility (or children receiving such services under arrangements made by a local authority, who immediately before which were children for whom the ICB had core responsibility) (paragraphs 2(c) and 4 of the Schedule);

  • certain persons aged 18 or over who, under arrangements made by the ICB (or the ICB acting jointly with a local authority), were provided with accommodation (in specified settings) in the area of another ICB or Local Health Board, and nursing and a planned service, immediately before they turned 18, who continue to need those accommodation and services after turning 18 and who would not be a person for whom the ICB has core responsibility (paragraphs 2(d) and 5 of the Schedule);

  • certain persons for whom a Clinical Commissioning Group (“CCG”) was responsible immediately before the coming into force of these Regulations for providing accommodation and services by virtue of regulation 4 of, and paragraph 6 of Schedule 1 to, the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (S.I. 2012/2996) (“the CCG Regulations 2012”), who continue to need that accommodation and those services and in respect of whom the ICB, to which the rights and liabilities relating to those services have been transferred under the NHS Act 2006, would not have core responsibility (paragraphs 2(e) and 6 of the Schedule);

  • certain children for whom a CCG was responsible immediately before the coming into force of these Regulations for providing services by virtue of regulation 4 of, and paragraph 7 of Schedule 1 to, the CCG Regulations 2012, who continue to need that accommodation and those services and in respect of whom the ICB, to which the rights and liabilities relating to those services have been transferred under the NHS Act 2006, would not have core responsibility (paragraphs 2(f) and 7 of the Schedule);

  • a child who immediately before the coming into force of these Regulations fell within paragraph 8 of Schedule 1 to the CCG Regulations 2012, in relation to whom the CCG with responsibility under those Regulations is the predecessor CCG (as defined) in relation to the ICB, who continues to need accommodation at a school in the area of another ICB or Local Health Board and for whom the ICB would not have core responsibility (paragraphs 2(g) and 8 of the Schedule);

  • a person who immediately before the coming into force of these Regulations fell within paragraph 3 of Schedule 1 to the CCG Regulations 2012, in relation to whom the CCG with responsibility under those Regulations is a predecessor CCG (as defined) in relation to the ICB, who is resident in and continues to need accommodation in a care home or independent hospital in the area of another ICB or Local Health Board (and needs at least one other planned service), and for whom the ICB would not have core responsibility (paragraphs 2(h) and 9 of the Schedule);

  • a child who immediately before the coming into force of these Regulations fell within paragraph 4 of Schedule 1 to the CCG Regulations 2012, in relation to whom the CCG with responsibility under those Regulations is a predecessor CCG (as defined) in relation to the ICB, who is resident in and continues to need accommodation in a care home or independent hospital in the area of another ICB or Local Health Board, and for whom the ICB would not have core responsibility (paragraphs 2(i) and 10 of the Schedule);

  • a person who immediately before the coming into force of these Regulations fell within paragraph 5 of Schedule 1 to the CCG Regulations 2012, in relation to whom the CCG with responsibility under those Regulations is a predecessor CCG (as defined) in relation to the ICB, who is resident in and continues to need accommodation in a care home, a children’s home or independent hospital in the area of another ICB or Local Health Board (and needs nursing and a planned service), and for whom the ICB would not have core responsibility (paragraphs 2(j) and 11 of the Schedule);

  • every person resident in Northern Ireland, Scotland or Wales and present in the ICB’s area who is a qualifying patient within the meaning of section 130C of the Mental Health Act 1983, and not being provided with NHS primary medical services (paragraph 2(k) of the Schedule).

Regulation 4 provides that, in addition to the persons for whom it has core responsibility (see section 14Z31 of the NHS Act 2006), an ICB has responsibility for the persons listed in the Schedule for the purpose of the power to make arrangements for the provision of vehicles (including wheelchairs) in paragraph 9 of Schedule 1 to the NHS Act 2006.

Regulations 5 and 6 prescribe additional persons for whom an ICB has responsibility to arrange the provision of mental health services during the course of the person’s detention under the Mental Health Act 1983.

Regulation 5 prescribes that an ICB is responsible for a person who is detained under the Mental Health Act 1983 in a hospital or registered establishment, is a qualifying patient within the meaning of section 130C of the Mental Health Act 1983, and for whom the ICB had core responsibility when the relevant application resulting in the person’s detention was made. A relevant application is an application made after a person is discharged from a previous period of after-care services relating to detention under the Mental Health Act 1983 or, where there is no previous detention, the first application for detention made in relation to the person. Any application for detention made while the person is in detention or has been discharged into after-care services but not discharged from those services, is not relevant for the purposes of determining responsibility under this provision.

Regulation 6 prescribes that an ICB is responsible for a person who is a qualifying patient within the meaning of section 130C of the Mental Health Act 1983, for whom the ICB has responsibility on the coming into force of these Regulations and in relation to whom paragraph (2), (3) or (4) of that regulation applies. Paragraph (2) applies to a person who was in detention under the Mental Health Act 1983 when these Regulations came into force and who either has not been discharged from that detention or has not been discharged from after-care services subsequent to that detention. Paragraph (3) applies to a person who is detained on or after the coming into force of these Regulations pursuant to an application made before these Regulations came into force and who either has not been discharged from that detention or has not been discharged from after-care services subsequent to that detention. Paragraph (4) applies to a person who was being provided with mental health after-care services on the coming into force of these Regulations in relation to a period of detention occurring before the coming into force of these Regulations, is not discharged from those after-care services, is subsequently re-detained after the coming into force of these Regulations and who either has not been discharged from that period of detention or has not been discharged from after-care services subsequent to that detention.

Part 3 provides for the circumstances in which the duty imposed on an ICB under section 117 of the Mental Health Act 1983 to arrange for the provision of mental health after-care services is instead to be imposed on another ICB or NHS England.

Regulation 7 imposes the duty to provide mental health after-care services on another ICB in one of four specified circumstances, as follows—

  • the ICB has responsibility to arrange for the provision of mental health services to the person during the detention to which the after-care services relate and the person is usually resident in England (paragraph (2));

  • the after-care services relate to a period of detention from which the person was discharged before these Regulations came into force, the ICB has core responsibility for the person when these Regulations came into force and the person is usually resident in England (paragraph (3));

  • the after-care services relate to a period of detention the provision of which was arranged by NHS England, the period of detention began before these Regulations came into force, the person is discharged from that period of detention on, or after, the coming into force of these Regulations, the ICB had core responsibility for the person on the date of their discharge from detention, regulation 8 does not apply to the after-care services and the person is usually resident in England (paragraph (4)); or

  • the after-care services relate to a period of detention the provision of which was arranged by NHS England, the period of detention began on, or after, the coming into force of these Regulations, the ICB had core responsibility for the person on the first day of the person’s detention, regulation 8 does not apply to the after-care services and the person is usually resident in England (paragraph (5)).

Regulation 8 imposes the duty to arrange the provision of mental health after-care services for a person on NHS England where the person is receiving after-care services under section 117 of the Mental Health Act 1983 which, if it were being provided under the NHS Act 2006, would be a service the provision of which NHS England had a duty to arrange.

Part 4, comprising only regulation 9, makes consequential amendments to the CCG Regulations 2012.

An impact assessment has been prepared in relation to the Health and Care Act 2022. A copy is available at www.gov.uk/government/publications/health-and-care-bill-combined-impact-assessments. A hard copy can be obtained by writing to the Department of Health and Social Care, 39 Victoria Street, London, SW1H 0EU.