15. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation concerned has got something wrong. We do this by comparing what should have happened with what did happen. If what happened fell far short of what should have happened, we call this a failing. When we see indications of a failing, we next look at whether that failing had a negative impact on the person in question. If we think it did, we will go on to consider what, if anything, the organisation has done to try to put things right.
16. Having done this, we have seen no indication that anything went wrong when NHSE made its decision.
17. We cannot question discretionary decisions, including decisions about eligibility for NHS continuing care funding, unless we find some fault in the way those decisions have been reached. Therefore, we can only uphold a complaint about an eligibility decision for NHS continuing care if there is a fault in the way the decision is made. Such decisions are based on the individual’s clinical judgments and opinions, and the fact that someone else has a different opinion does not mean that there must have been a fault in the decision-making process.
18. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information when reaching its decision. To help us reach a decision, there are four key areas we consider.
19. First, we look at whether the IRP established all the appropriate and relevant clinical facts in line with the National Framework. Mrs T does not think they considered her evidence.
20. We can see the documents NHS England provided to us include detailed notes of the IRP held on 10 February 2020. The IRP report shows the IRP reviewed the correspondence between Mrs T and MLCSU (on behalf of the CCG), the needs portrayal completed on 3 March 2016, and the DST dated 4 July 2016. These are all documents that showed how MLCSU considered Mrs L’s needs. We can see a Local Resolution Meeting (LRM) took place on 8 February 2018, following the appeal from a law firm in the Blackburn with Darwen area who were Mrs T’s representatives. Importantly, the file the IRP had includes the submissions put to it by the law firm, and Care Fee Recovery (another representative).
21. The IRP considered the daily care records put forward to support Mrs T’s retrospective review request. MLCSU had used these to produce the needs portrayal and DST. This included the care home, GP, mental health, and other professional records for the entire claim period. We can see the IRP considered the evidence put forward by Mrs T, including her reasons for requesting the IRP, and opinions on the care Mrs L needed.
22. Mrs T does not think the IRP took her views into account. We note she was not present for the IRP. But when we weigh up the evidence, it is clear from the report that it heard and considered both her and Care Fee Recovery’s views and included these within the IRP report.
23. We can see there are no obvious omissions in either the documents or evidence NHS England had. We are satisfied there is no indication of a failing in how the IRP established all the appropriate and relevant clinical facts. We think the IRP acted in line with the National Framework here.
24. Secondly, we consider whether, before reaching their decision, the IRP had a clinically-led discussion as to the impact and interaction of the relevant clinical facts.
25. Mrs T says there was no independent clinical adviser in the panel, which is common in other NHS England areas. She feels the NHS representative was acting as the clinical adviser but was not independent as she formed part of the panel. She had no mental health qualifications. There was also no input by the registered mental health nurse.
26. The records from the IRP show it had an appropriately constituted panel. This did include a clinical adviser, with suitable nursing qualifications, to advise the panel on clinical matters. The panel also included a local authority representative to advise on social care issues.
27. We can see that NHSE will make every effort to get specialist clinical advisers. But as per the standing rules the independent panel was in line with the National Framework.
28. Mrs T has told us she disagrees with how the IRP considered the drug therapies and medication domains. She does not consider the IRP established all the facts, particularly about the prescribed medications, changes in the medication regime, and continued involvement of the mental health team. She says Mrs L was prescribed haloperidol (an anti-psychotic medication), which needed monitoring for effectiveness and significant side effects.
29. The IRP report confirms the panel discussed Mrs L’s healthcare needs, within the drug therapies and medication domain. It supported its view on those needs with evidence from a variety of records and other information it had. Within those discussions, we can see the IRP weighed up Mrs T’s view on her mother’s needs.
30. We cannot see strong evidence that Mrs L had a complicated medicine regime. The evidence shows that she needed pain relief for acute pain. She needed administration and supervision of her medications and could not self-medicate. There was no evidence of any considerable changed doses, or specific complexities, in delivering Mrs L’s medication regime daily in the care setting.
31. It is clear the IRP discussed evidence from a number of sources, including the submissions from Care Fee Recovery. The IRP concluded that the CCG had gathered all available evidence to reach a conclusion about Mrs L’s suitability for CHC funding. It also concluded that the CCG had properly applied the CHC criteria.
32. We can see from the IRP report that the panel had a clinically led discussion of the key clinical facts, including the care domains. The report shows how the evidence informed its decision-making process. There are clear and detailed explanations of the IRP’s views on the care domains, as set out in Mrs L’s needs portrayal and daily care records. The explanations confirm the panel’s view differed from that of the CCG, and Mrs T, in the drug therapies and medication domain. There is no evidence that the IRP overlooked, marginalised, or did not adequately consider any facts during the IRP process.
33. We understand Mrs T disagrees with how the IRP considered the drug therapies and medication domain. When we weigh up the evidence, we can see it took her views into account before it made its decision on this domain.
34. We are satisfied there are no failings in how the IRP discussion, the impact, and interaction of the relevant clinical facts. We think the IRP acted in line with the National Framework here.
35. Thirdly, we consider whether the IRP adequately considered and explained the conclusions of the clinically led discussion in its final decision.
36. For someone to be found eligible for CHC funding it must be established that they have what is called a ‘primary health need’. This means their primary need must be for healthcare, as opposed to social care. To determine if someone has a primary health need, it must be demonstrated that an individual’s needs are of a nature, intensity, complexity, or unpredictability that is more than a local authority could be expected to manage. These are known as the four key indicators. A holistic approach is taken, and the totality of the individual’s needs must be considered when applying the four key indicators.
37. We can see the IRP’s decision presents and summarises the conclusions of the clinically led discussion. We can see the IRP report details the discussions around the four key indicators. It shows the interrelationship with, and impact on, Mrs L’s daily care needs. We know Mrs T disagrees. This is identified in the clinical evidence, the needs portrayal, and DST. It shows how the care home managed Mrs L’s needs. The IRP concluded that her needs were at a level which could be met by a local authority.
38. Therefore, we are satisfied there are no failings in this part of the IRP’s process, and we consider that it reached its decision in line with the National Framework.
39. Fourthly, we consider whether the IRP appropriately applied the CHC eligibility tests and reached an evidence-based conclusions about them.
40. We know Mrs T disagrees with the IRP’s rationale in the four key indicators. She says the consideration of intensity is particularly lacking. She says Mrs L needed almost constant supervision over 24 hours. She was intrusive to other residents, and there were a number of altercations. She was highly agitated, distressed, and needed skilled reassurance. She would often not sleep all night and was at high risk of falls. All her monitoring and oversight was complex because she was severely cognitively impaired and unable to communicate. She suffered expressive and receptive dysphasia. Mrs T feels this is significantly over and above social type care.
41. When the IRP considers the nature indicator, in line with the National Framework, we would expect it to: ‘describe the particular characteristics of an individual’s needs (which can include physical, mental health or psychological needs) and the overall effect of those needs on the individual, including the type (‘quality’) of interventions required to manage them’.
42. We can see the IRP report includes the level of detail we would expect. Its decision in the nature indicator is clear and presents a full picture of how Mrs L’s needs were met. The IRP described the nature of her condition well. It recognised she had a range of social care and healthcare needs, and that she needed to be looked after in a safe environment. We can see it looked at the care plans which suggested her care could be provided routinely by the care staff. The records presented were clear enough for the IRP to make the decision.
43. In line with the National Framework, we would expect the IRP’s consideration of the intensity indicator to: ‘relate both to the extent (‘quantity’) and severity (‘degree’) of the needs and to the support required to meet them, including the need for sustained/ongoing care (‘continuity’)’.
44. We know this is the key indicator Mrs T has the most concerns about. We have looked at how the IRP considered her specific concerns. We can see the IRP took her evidence from the written submission, dated 3 December 2018, about the intensity of Mrs L’s needs into account. It weighed them up before it made its decision about the intensity indicator.
45. We can see the IRP looked at the right things. It described how the care and help Mrs L needed was in line with care plans. These did not need frequent amendments. The IRP mentioned how care staff could give planned routine care, as overseen by the registered nurse. The IRP detailed that Mrs L’s symptoms did not need an intensive response or ongoing 1:1 intervention. There was no specific monitoring, skilled response, or difficulty in meeting her needs.
46. When the IRP considers the complexity indicator, in line with the National Framework, we would expect it to: ‘look at how the needs present and interact with one or more other conditions to increase the skill required to monitor the symptoms, treat the condition(s) and/or manage the care.’
47. Again, we have looked at how the IRP considered her specific concerns. We can see the IRP took her evidence about the complexity of Mrs L’s needs into account. It weighed them up before it made its decision about the complexity indicator.
48. We can see the IRP described clearly how Mrs L’s needs were interrelated due to her dementia. It detailed how her needs could be met within routine planned care on a regular basis, and her care plans remained relevant. They did not need repeated changes or increased knowledge to address her needs. The IRP described how her care was not difficult to manage. Her inability to communicate could easily be anticipated and did not need a higher level of knowledge or skill. The IRP gave the level of detail we would expect in the complexity indicator.
49. When the IRP considers the unpredictability indicator, we would expect it to look at: ‘the degree to which needs fluctuate and thereby create challenges in managing them. It also relates to the level of risk to the individual’s health if adequate and timely care is not provided. An individual with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition’.
50. Mrs T says Mrs L needed varying degrees of care, support and help throughout a 24-hour period to meet her needs. This is not evidence of unpredictability. It shows that at different times of the day her mother needed more or less help.
51. We can see the IRP mentioned Mrs L had recognised predictable patterns of behaviour and care needs. It detailed how staff could meet these through routine approaches and care procedures. Her needs were effectively managed by a registered nurse. The IRP clearly described why her needs were not unpredictable.
52. Mrs T also says the IRP report was dismissive and minimised Mrs L’s needs in a number of key areas. It refers to carers administering medication, when the four key indicators clearly say that nurses were needed to administer medication. There are repeated references to restlessness rather than distress, agitation, and anxiety. This is how Mrs L’s behaviour and psychological state is described in the care and medical records. Her behaviour negatively impacted herself, staff, and fellow residents on a daily basis.
53. We can see the IRP applied the eligibility criteria as it should have. It looked at all relevant clinical evidence, in line with the National Framework. Within the IRP report, there is evidence that the IRP considered all sources of evidence. The IRP considered the domain interaction in relation to the lawful limits of a local authority. The IRP appropriately applied the guidance within the National Framework to Mrs L’s care. We cannot see that the IRP misapplied the ‘well managed need’ principle.
54. We have looked at how the IRP considered Mrs T’s specific concerns. We can see the IRP took her evidence about Mrs L’s dismissive and minimised needs into account. There is no evidence in the report that the IRP marginalised Mrs L’s needs. The IRP described how staff managed her personal care including her behaviour, distress, and medication, which it must do to make decisions about the four key indicators. It detailed that there was no evidence of aggression, resistance to interventions, or specific monitoring around the introduction of medication. She was also not distressed daily. The report shows the IRP’s application of the well managed need principle was supported by the evidence available and was in line with the National Framework.
55. The IRP showed that it applied the expected eligibility tests during its discussions in determining Mrs L’s CHC eligibility.
56. We are satisfied there are no failings in how the IRP considered the four key indicators. We think it acted in line with the National Framework.
57. We recognise Mrs T’s account and that she disagreed with the IRP’s decision. We do not wish to take away from her account or what she has told us about Mrs L’s needs.
58. We have found no reason to question the decision the IRP reached. There is nothing to suggest the IRP recommendations were not based on the evidence or were clinically unsound. It explained in detail how it weighed up all of the evidence and came to its decision.