Commentary on Sections Determination of need for community care services on discharge Section 5: Duties of responsible NHS body when section 2 has been given
27.This section applies where a section 2 notice has been given. Subsection (2) ensures that the NHS body responsible for issuing the section 2 notice to the social services authority, and any other NHS body which may need to provide services to the patient upon discharge, must consult the social services authority before deciding which services it will make available upon discharge. This is to ensure that a complete package of care can be put in place smoothly and without duplication or omission of any particular service. The responsible NHS body will in the first instance normally be a hospital but the majority of NHS services upon discharge are likely to be provided by the patient’s Primary Care Trust. The social services authority must be consulted about all  NHS services that are to be provided.
28.Subsection (3) provides that the NHS body must notify the social services authority of the day on which it is proposed that the patient will be discharged.
29.Subsections (4) and (5)  deal with when a notice issued under subsection (3) is in force and when it may be withdrawn. The intention is that the social services authority should be informed as soon as possible by the NHS body of circumstances which change the proposed discharge date, so that the social services authority can make corresponding changes to their arrangements to provide services. This ensures clarity of communication between the NHS and social services authority leading to better joint planning.
30.Subsection (6) defines “the relevant day” for the purposes of charging under Part 1. This day is the later of the proposed date of discharge as communicated to the social services authority, or the last day of a minimum interval provided for the authority to carry out their duties under section 4 which starts after notice under section 2 has been given.
31.Subsection (7) provides for this minimum interval to be prescribed in regulations but places limits on what the regulations may prescribe. The minimum interval starts on the day after the social services authority has received notification under section 2 that a patient is likely to require community care services, and must be at least two days. This in effect means that a social services authority will always have at least some of the day of notification under section 2, plus two more days to assess the patient’s community care needs and put in place sufficient services to allow for discharge from hospital. Furthermore, Sundays and public holidays cannot be counted towards the two day period prescribed at subsection (7)(b) until 31 March 2005 at the earliest (subsection (8)). In England and Wales, public holidays are Christmas Day, Good Friday and bank holidays.
32.If the notice under subsection (3) is withdrawn, subsection (9) provides that the NHS body is under a duty to issue a fresh notice when a new discharge date has been identified, and that a new relevant day is identified.
33.Subsection (10) provides for regulations to define the form, content and manner of issuing of discharge notices under subsection (3) and withdrawal notices under subsection (5). The aim is to ensure that the social services authority receives fair warning of the intention to discharge or of changes to this decision. The subsection also aims to prevent disputes about when such notices can be regarded as given or received. Subsection (10)(d) allows regulations to be made to define the day on which it will be considered that the NHS body has issued or withdrawn a notice to the social services authority.