How we reach a decision
14. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen.
15. 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. Before we go on to discuss our decision, we would like to explain some information about how an IRP reaches its decision and what this means for how we look at it.
17. Whether an individual is eligible for CHC funding is a discretionary decision. It is our role instead to decide if the IRP made its decision in line with the National Framework.
18. 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 someone else has a different opinion does not mean that there must have been a fault in the decision-making process.
19. The purpose of the IRP is to review the procedure the CCG followed when it made a decision about a person’s eligibility for CHC funding. In determining whether the CCG followed the correct process and whether it correctly applied the eligibility criteria, the IRP can recommend that the case be reconsidered by the CCG. This will address any faults identified in the process. The IRP can also reach a view as to whether the individual should or should not be considered to have a primary health need.
20. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information in reaching its decision. For this we consider the IRP report, the information Mr R provided, and records the Chair considered when reaching a decision.
Our decision
21. The National Framework Annex D: Independent Review Panel Procedures states: "An IRP’s key tasks are, at the request of NHS England, to conduct a review of the following: a) the primary health need decision by a CCG; or b) the procedure followed by a CCG in reaching a decision as to that person’s eligibility for NHS continuing healthcare and to make a recommendation to NHS England in the light of its findings on the above matters".
22. Having reviewed the information we have available, particularly the IRP report, we identified the report lacks detail, specifically what the panel considered when reaching a decision for each of the domains and key indicators. Therefore, there are indications that it has not properly considered the primary health need decision reached by the CCG.
23. We have also identified the panel does not refer to Mr R’s submissions, and therefore we find indications that these were not considered when NHS England reached its conclusions.
24. For example, for the intensity key indicator, we can see the Chair has reached a conclusion that there were no needs of an intensity that required specialist or prolonged interventions. However, the report does not include details of what interventions Mr D required and how these were managed.
25. In the same way for the domains, the report acknowledges that the family disagreed with the CCG’s weightings. It then goes on to reach a decision on the relevant weighting but does not properly discuss why it has reached this weighting.
26. The limited detail in the report has made it difficult for us to reach a decision on whether there were any failings in NHS England’s decision-making process.
27. We discussed this with NHS England, and it has agreed with our observations. NHS England has agreed to complete a further report, which will include reference to the relevant information. This report will be sent to Mr R within two weeks from the date of this letter. We hope Mr R is pleased with this outcome.
28. It is important NHS England is able to look at Mr R’s complaint, give him an adequate response, and have the opportunity to put right any mistakes. Often this is the quickest way to resolve complaints. Therefore, we will not be taking any further action at this time.
29. We have requested the report NHS England produces is sent directly to Mr R, and we hope after reading the further information provided in the report that this resolves his concerns.
Conclusion
30. As NHS England has agreed to reconsider its decision, we consider the complaint to be resolved at this stage and do not propose any further actions.