4. Mrs A complains about NHSE upheld Southampton Clinical Commissioning Group’s (CCG) decision that her father, Mr D, was not eligible for CHC funding between 22 February 2018 and 26 April 2018.
5. Mrs A says that because of the claimed failings, her father has been put in a care home that cannot cope with his complex behavioural needs.
6. As an outcome of her complaint, Mrs A would like the IRP to review its eligibility decision.
7. A positive CHC checklist was initially completed on 24 January 2018.
8. A further Decision Support Tool (DST) was conducted on 26 April 2018, and a recommendation was made that Mr D was not eligible for funding. A CCG panel then convened on 3 May 2018, and also agreed that Mr D was ineligible for CHC.
9. The CCG also convened a local resolution meeting and a local appeal review, and it upheld the decision of no eligibility. The CCG sent a final decision letter explaining the decision to Mrs A on 10 April 2019.
10. Lastly, NHSE convened an IRP on 5 March 2020. It upheld the CCG’s decision.
13. To help us reach a decision, we have carefully considered the information provided by Mrs A, alongside the evidence the IRP considered.
14. For reference, CHC describes care provided over an extended period that meets physical or mental health needs caused by disability, accident, or illness. If someone meets the criteria to receive CHC funding, their care will be funded by the NHS.
15. The purpose of the IRP is to review the procedures followed by the CCG in deciding a person’s eligibility for CHC. In determining whether the CCG followed the correct process, and whether it correctly applied the eligibility criteria, the IRP can recommend either that the case should be reconsidered by the CCG, addressing any faults identified in the process, or it can reach a view as to whether the individual should or should not be considered to have a primary health need.
16. Whether an individual is eligible for CHC is a discretionary decision. It is our role to decide if the IRP made its decisions in line with the National Framework. We consider whether it took account of all the relevant information when reaching its decision.
17. We cannot question discretionary decisions when they have been made without maladministration (fault) and we can only uphold a complaint about an eligibility decision if there is some specific fault in the way the IRP reached its decision. Such decisions are based on clinical judgements and opinions. The fact that someone else has a different opinion does not mean there must have been a fault in the decision-making process.
18. To help us reach a robust decision, we look at whether the IRP considered all the relevant information when determining CHC eligibility. To allow us to do this, there are four key areas we consider. We will explain each one in turn.
Did the IRP establish all the appropriate and relevant clinical facts?
19. Paragraph 199 of the National Framework says, ‘The key elements involved in considering requests for independent reviews of CHC eligibility include: scrutiny of all available and appropriate evidence.’
20. To start, we have reviewed all the information provided by NHSE, which includes the IRP report, the IRP file, and the relevant clinical documents. We have also reviewed all of the information provided by Mrs A.
21. The IRP specifically considered the following evidence:
· the residential home notes, long term care plans and GP records · the CHC documentation including all the appeal documents · CHC eligibility documents including the DST and CCG submissions · Mrs A’s submitted documentation.
22. From viewing the IRP report, at the start of the meeting, it shows that Mrs A was invited by the Chair to discuss her father in detail including his past career, what hobbies he enjoyed, and his personality.
23. Mrs A then advised the panel of what medical conditions Mr D had. These are:
· Age-related macular degeneration · diabetic retinopathy · type two diabetes · hypertension · Parkinson's disease · Lewy body dementia · vitamin b12 deficiency.
24. The panel then discussed Mrs A’s appeal documentation in detail. The reasons for challenging the CCG’s eligibility decision were discussed, as well as Mrs A’s points in relation to the CHC process that she has experienced.
25. Paragraph 5.3 of the National Framework states that, ‘The records that may be required to reach an informed conclusion on eligibility could include those from GPs, hospitals, community health services, local authority social care, care homes and domiciliary care/support services.’
26. The IRP considered the care home records, GP, and social care records. These included care plans, clinical reviews, pain scale documentation, medication records, and daily notes.
27. There was a discussion around each domain and key indicator, which makes up the eligibility criteria. The discussions were centred around Mrs A’s submissions, the available care home and medication documentation, and the information provided by the CCG. We will explain in more detail about the domains and four key indicators further on in this report.
28. We can see numerous examples of the Chair taking into consideration Mrs A’s written and verbal accounts of her father. For example, ‘[Mr D’s] family stated that he had a history of depression, for which he was prescribed sertraline’ and ‘The IRP noted the family’s concerns that [Mr D’s] current needs are not being addressed.’
29. We cannot see any omissions in the documents and submissions the IRP considered. It considered all the available and appropriate evidence as required by the National Framework. We have seen no indications of failings in this part of the IRP’s consideration.
Before it made its decision, did the IRP have a clinically led discussion about the impact and interaction of the clinical facts?
30. The National Framework states that:
31. ‘NHSE is responsible for convening an independent review panel consisting of:
· an independent chair (appointed by NHSE) · a CCG representative · a local authority representative’
32. From viewing the IRP report, the IRP panel consisted of:
· an independent chair · a CCG representative · a local authority representative · a clinical advisor
33. As the members of the IRP were in line with the National Framework, we consider that NHSE had an appropriately constituted panel.
34. From viewing the IRP report and notes, the IRP worked through and discussed each of the care domains in turn with Mrs A. For reference, there are twelve care domains that make up the DST stage of the assessment for CHC. An assessment is made against each domain and awarded a level of need depending upon the issues they present with.
35. Mrs A specifically disputed the following domains:
· breathing · skin · mobility · psychological and emotional needs · behaviour · drug therapies and medication: symptom control · altered states of consciousness (ASC) · other significant care needs.
36. The IRP had in depth discussions with Mrs A around each disputed domain. The panel listened to the reasons why she had determined the weightings for the domains were being disputed. The IRP Chair also questioned Mrs A to gain more information on her thoughts for each domain.
37. It discussed and noted the clinical reasons as to why the CCG and Mrs A had chosen the specific weighting. The IRP also considered Mrs A’s written submissions.
38. The IRP referred to the clinical notes that had been provided. For example, ‘The family also drew attention to the fact that [Mr D] had chest infections, however none are recorded at this period in the GP notes.’ They also referred to statements from the residential home. For example, ‘The deputy manager stated that if his needs were not managed, he is at a high risk of skin breakdown.’
39. Within the IRP’s considerations for each care domain, it refers to Mrs A’s view and the CCG’s view. It then goes on to explain the IRP’s weighting, and what evidence it considered to reach its conclusion.
40. We have seen no evidence to suggest any facts were overlooked, marginalised, or not adequately considered during the IRP process. For this reason, we are satisfied that the panel had a clinically led discussion about Mr D’s needs, regarding the impact and interaction of the relevant clinical facts.
Did the IRP’s final decision adequately consider and explain the conclusions of the clinically led discussion?
41. Paragraph 199 of the National Framework says that when considering eligibility, NHSE should provide: ‘clear and evidenced written conclusions on the process followed by the NHS body and on the individual’s eligibility for NHS CHC, together with appropriate recommendations on actions to be taken. This should include the appropriate rationale’.
42. For someone to be found eligible for CHC funding, it must be established that they have a ‘primary health need’, which means their primary need/s must be for healthcare, as opposed to social care.
43. To determine if someone has a primary health need, the nature, intensity, complexity, and unpredictability of a person’s need must be considered. These are known as the four key indicators. The totality of the individual’s needs are considered when determining if someone is eligible for CHC funding.
44. The four key indicators may individually, or in combination, demonstrate a primary health need. This is because they relate to the quantity and/or quality of the care that is needed to meet Mr D’s needs.
45. The IRP report and notes, show that the IRP considered in detail each of the key indicators, how they affected Mr D, and how they impacted one another. It shows that the IRP took into consideration the relevant clinical information, the CCG’s view, Mrs A’s views, and the available evidence.
46. The IRP concluded that the care Mr D needed in his day-to-day life was no more than supplementary to the provision of care which the local authority was able to provide. The care he needed was delivered by trained carers that were trained to work in an Elderly Mentally Infirm (EMI) setting with appropriate support, as and when required, from primary health services.
47. The care home records contain extensive examples of the level of care Mr D required, and that the care staff were able to provide this. For example, ‘Pressure areas checked, they have healthy skin, was very happy.’ And ‘[Mr D] was incontinent of faeces and was given full personal care, needed a little help.’ From viewing the information, no specialist assistance was required to care for Mr D.
48. Having viewed the IRP notes, numerous clinical matters were discussed between the IRP and Mrs A for each key indicator, which reflected entries within the care records. For example, there was a discussion around Mr D’s cognition, and that he wandered around the home.
49. We consider the IRP’s rationale is consistent with Mr D’s records. We have seen the IRP explained its rationale and considered this alongside the four key indicators. As such, we can find no indications of failings.
Did the IRP apply the appropriate eligibility tests?
50. Paragraph 124 of the National Framework sets out the following:
51. ‘Establishing whether an individual has a primary health need requires a clear, reasoned decision, based on evidence of needs from a comprehensive range of assessments relating to the individual. A good-quality multidisciplinary assessment of needs that looks at all of the individual’s needs ‘in the round’ – including the ways in which they interact with one another – is crucial both to addressing these needs and to determining eligibility for NHS Continuing Healthcare. The individual and (where appropriate) their representative should be enabled to play a central role in the assessment process.’
52. Mrs A disagrees with the rationale for the four key indicators. As such, we have considered whether the IRP’s decisions and rationale about the four key indicators were clinically accurate. We will consider each key indicator in turn.
Nature
53. ‘Nature describes the particular characteristics of an individual’s needs (which can include physical, mental health or psychological needs) and the type of those needs. This also describes the overall effect of those needs on the individual, including the type (‘quality’) of interventions required to manage them’.
54. Mrs A explained the number of medical conditions that Mr D has, as well as his incontinence, poor mobility, and recurrent urinary tract infections (UTI’s). She discussed Mr D’s deterioration in relation to his dementia, confusion, and disorientation.
55. She said that Mr D required constant supervision, and that he required staff to anticipate his needs to protect him from harm. If this was not in place, he would be a risk to himself and others.
56. Within the report, the IRP acknowledges the diagnoses that Mr D has, as well as needing to be cared for on a 24-hour basis to keep him safe. It gave a detailed overview of the care that Mr D needed, including an explanation of Mr D’s needs for each domain.
57. It explained the outside support that was needed to care for Mr D. For example, district nurses gave Mr D his B12 injections, and a mental health specialist in the NHS prescribed medication for Mr D’s mental health.
58. The IRP concluded that the nature of Mr D’s needs did not demonstrate a primary health need. It said that the care he needed was delivered by carers trained to work in an EMI setting, with appropriate support, as and when required, from the primary health services.
59. Paragraph 3.3 of the National Framework sets out the following questions to consider when considering this need:
‘Questions that may help to consider this include: · How does the individual or the practitioner describe the needs (rather than the medical condition leading to them)? What adjectives do they use?
· What is the impact of the need on overall health and well-being?
· What types of interventions are required to meet the need?
· Is there particular knowledge/skill/training required to anticipate and address the need? Could anyone do it without specific training?
· Is the individual’s condition deteriorating/improving?
· What would happen if these needs were not met in a timely way?’
60. The care home and GP records reflect what was explained by both Mrs A and the IRP. Mr D had numerous medical conditions which he needed constant care for. On review, Mr D did not need any significant interventions from medical professionals to help care for him.
61. For example, he received his B12 injections from the district nurse, and his medication was effectively given by the care home staff. Mr D was also being overseen by a mental health nurse. There was no specialist intervention or knowledge that was needed to care for Mr D. While he had many needs, this was being managed effectively and in a timely manner, within the limits of what the local authority could provide.
62. There is no evidence to suggest that caring for Mr D was problematic or that, due to the medical conditions he had, he needed specialist care. Risk and capacity assessments were undertaken as well as reviews, to ensure his needs had not drastically changed.
63. Mr D’s needs were mainly routine in nature and were managed in a timely manner by the local authority. Therefore, we have seen no indications of failings in the IRP Chair’s reasoning that Mr D did not have an overall high level of need in the Nature key indicator.
Intensity
64. ‘Intensity relates 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’)’.
65. Mrs A has explained that Mr D is at high risk of falls, which is exacerbated by his sleep behaviour. She says that he does not understand that he is at risk when mobilising.
66. Mrs A says that Mr D needed assistance with his diabetes, and the staff were responsible for providing suitable meals and monitoring blood sugar levels. He needs supervision to ensure he does not eat or drink inappropriate things.
67. Mrs A has said that Mr D is incontinent and needs toilet assistance, as he is unable to manage this independently.
68. Lastly, Mrs A said that Mr D has been sexually inappropriate with other care users and staff members, as well as being physically and verbally aggressive. He has needed constant hourly checks to reduce the risk to himself and others.
69. The IRP recognised that Mr D had needs across all domains. However, it said that his needs were met by carers within the home, and with the support of the GP and NHS community nursing services.
70. The IRP explains in its report that Mr D needed constant monitoring and needed assistance with many day-to-day tasks. However, he can do some basic tasks alone, such showering and shaving. However, other needs were anticipated by carers.
71. In relation to the specific points that Mrs A has raised, the IRP explained these in turn, and the support Mr D needed. It explained what needs Mr D had, for example continence and mobility, and explained what extent of care was needed by the staff to ensure Mr D’s safety.
72. The IRP concluded that there was no requirement for specialist care over a prolonged period and so determined there was no intensity of his care that might be associated with a primary health need.
73. Paragraph 3.4 of the National Framework sets out the following questions to consider when considering this need:
‘Questions that may help to consider this include: · How severe is this need?
· How often is each intervention required?
· For how long is each intervention required?
· How many carers/care workers are required at any one time to meet the needs?
· Does the care relate to needs over several domains?
74. We have reviewed the submissions from Mrs A and the IRP. We can see that Mr D did require constant monitoring, but the majority of his needs were anticipated by the care home staff.
75. The care home records show that care was needed for the majority of the domains. However, these interventions were not lengthy or of a high frequency. Only one care worker was needed to assist Mr D with his day-to-day care.
76. The care that Mr D needed was not severe but was routine in its nature. For example, when viewing the care records in relation to hygiene and dressing, it describes Mr D as only needing a ‘little help’ when being assisted.
77. There is no evidence of departure from the care plans, or any significant changes to Mr D’s care, due to an increasing level of intensity. There was no specialist outside intervention required.
78. We do not consider there to be any indications of failings in the IRP’s decision-making process about the intensity of Mr D’s needs. The IRP’s reasoning is supported by the records and is in line with the National Framework.
Complexity
79. 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.’
80. Mrs A explained that staff had to manage and monitor Mr D’s conditions, which could be problematic due to him being incontinent, having diabetes, and exhibiting challenging behaviour.
81. She explained how his memory loss impacted his incontinence, as staff had to prompt him to use the toilet.
82. She said that his dementia impacts him as he thinks he is at work, so he will not relax. This then influences his mobility and emotional wellbeing. Mrs A also said that his diabetes impacts Mr D’s diet, mobility, and his incontinence.
83. The IRP acknowledged that there was some interaction between Mr D’s cognition, behaviour, and communication. However, it could not find any evidence to suggest these interactions made Mr D’s care more complex to manage.
84. The IRP said that the staff knew how to best approach individuals with cognitive impairment, and care plans and strategies were in place in relation to Mr D’s needs. It said that there was no external support needed to help Mr D.
85. The IRP concluded that there was no evidence of complexity that would be associated with a primary health need. There were no frequent changes to the care Mr D needed, and the level of monitoring he needed was standard for a residential care home environment. It said that the skill level to deliver his care was not above what would be expected in a dementia care setting.
86. Paragraph 3.5 of the National Framework sets out the following questions to consider when considering this need:
‘Questions that may help to consider this include: · How difficult is it to manage the need(s)?
· how problematic is it to alleviate the needs and symptoms?
· Are the needs interrelated?
· Do they impact on each other to make the needs even more difficult to address?
· How much knowledge is required to address the need(s)?
· How much skill is required to address the need(s)?
· How does the individual’s response to their condition make it more difficult to provide appropriate support?
87. There is evidence that there were interactions between several of the care domains, which did have a knock-on effect on Mr D’s day-to-day living.
88. However, we have seen there was no need for any specialist input or knowledge to care for Mr D, and his needs were not difficult to manage or address. There is no evidence that the staff found Mr D difficult to care for because of the interactions of his needs, and his care was routine in its nature. Care plans were followed appropriately, and staff did not have to defer from these.
89. As such, the IRP gave the level of detail we would expect when assessing the complexity indicator. Its considerations were in line with the National Framework, and its reasoning was supported by the available records and documentation.
Unpredictability
90. ‘Unpredictability describes the degree to which needs fluctuate and thereby create challenges in managing them. It also relates to the level of risk to the person’s health if adequate and timely care is not provided. Someone with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition’.
91. Mrs A explained that due to Mr D’s memory conditions, the staff had to ensure Mr D was in a safe environment. He was unable to assess risks and hazards. This meant that Mr D required daily monitoring and staff needed to anticipate his needs.
92. Mrs A said that the staff especially had to care for Mr D’s continence and hygiene. She also mentioned Mr D’s mobility and his previous falls, and that he has tried to escape from the residential home.
93. The IRP said that Mr D’s behaviour followed a predictable pattern. It acknowledged that the care plans did not change, and there were no specific plans to address his behaviour. It said that there were no incidents of behavioural problems within the care period under review.
94. It said that Mr D’s diabetes was well controlled, and there was no evidence of any unplanned blood sugar readings being needed. It said that there was no evidence of any rapid deterioration and no evidence of any changes in the support he needed. As such, there is no evidence of unpredictability.
95. Paragraph 3.6 of the National Framework sets out the following questions to consider when considering this need:
‘Questions that may help to consider this include: · Is the individual or those who support him/her able to anticipate when the need(s) might arise?
· Does the level of need often change? Does the level of support often have to change at short notice?
· Is the condition unstable?
· What happens if the need isn’t addressed when it arises? How significant are the consequences?
· To what extent is professional knowledge/skill required to respond spontaneously and appropriately?
· What level of monitoring/review is required?’
96. Having considered the submissions from Mrs A and the IRP, we have seen no evidence of any sudden changes in Mr D’s needs, or that the support and care plans had to be amended due to any changes in his needs.
97. There was no specialist knowledge or intervention that was needed to care for Mr D or meet his needs. His condition remained stable throughout the review period, and his needs were adequately addressed.
98. The IRP’s conclusions can be supported by the evidence we have seen. There are no indications of failings in this part of the IRP’s consideration, and it is in line with the National Framework.
99. Given what we have considered above, we do not consider there to be any failings in the IRP’s decision-making process.
100. We understand the distress Mrs A has experienced at having to pursue her concerns over a prolonged period of time and we are sorry to hear of her concerns. Our decision does not take away from the effect these issues have had on her and her family.
1. We have carefully considered Mrs A’s complaint about NHS England (NHSE) and the eligibility decision reached by the Independent Review Panel (IRP) in relation to Continuing Healthcare (CHC) funding for her father, Mr D.
2. To reach our decision, we have reviewed the information that Mrs A has sent us, as well as the information provided by NHSE. As a result, we have found that the IRP’s consideration of Mr D’s eligibility for CHC funding was in line with the relevant national guidance.
3. We understand the distress that Mrs A’s complaint has caused her, and we would like to thank her for taking the time to speak to us regarding her complaint, as this has helped our consideration. We appreciate this has been difficult for Mrs A, and we hope our consideration will offer her some reassurance about how NHSE conducted the IRP.