IRP’s decision making
13. Whether an individual is eligible for NHS continuing healthcare funding is a discretionary decision. It is our role to decide if the IRP made its decision in line with the National Framework.
14. 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, 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.
15. The purpose of the IRP is to review the procedure followed by the CCG in deciding about a person’s eligibility, or the primary health need decision by the CCG. In determining whether the CCG followed the correct process, and correctly applied the eligibility criteria, the IRP can: · recommend the CCG should reconsidered the case and address any faults identified in the process, or · reach a view as to whether the individual should or should not be considered to have a primary health need.
16. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information in reaching its decision. To help us reach a decision there are four key areas we consider.
17. Firstly, we look at whether the IRP established all the obvious, appropriate, and relevant clinical facts.
18. Paragraph 16 Annex D of the National Framework says: ‘The IRP should also have access to the views of key parties involved in the case, including the individual, his or her family and any carer, health and social services staff, and any other relevant bodies or individuals. It will be open to key parties to put their views in writing or to attend.’
19. We have carefully considered the available evidence. We can see the IRP used Mrs O’s GP records, care plans, daily care records, risk assessments, medication charts, and submissions from Mr O and his solicitors. It also considered the relevant decision support tools (DSTs), local resolution notes, and correspondence with Mr O and his solicitors. It also considered Mr O’s reason for requesting an IRP.
20. The National Framework says the IRP should gather and scrutinise the available evidence, as described in the local resolution section. We have not seen any obvious omissions in the IRP’s file. We are satisfied the IRP gathered the appropriate evidence in line with the Framework. It reviewed the information used by the CCG during local resolution, in full.
21. The IRP report shows the panel considered Mr O’s and his solicitors views and evidence at the hearing. And it references these for each of the domains in turn. It appears the IRP sought Mr O’s and his solicitor’s input and listened to their account when making its decision.
22. The panel asked Mr O and his solicitor if Mrs O ever looked dishevelled or uncared for, and the family responded that she ‘would not brush her teeth and she would insist on wearing the same clothes and she often looked dishevelled.’ The panel asked Mr O and his solicitor if Mrs O would shout a lot or be noisy. The family responded by saying she did at times, but this was only occasionally. The panel asked the families solicitor for their view, and they listed frequent issues arising in the notes such as injuries to others, and the carers struggling to meet Mrs O’s needs. The panel also referenced the CCG’s submission and took this into account when making its decision.
23. The panel asked Mr O and his solicitor about Mrs O’s communication and noted Mrs O’s diagnosis of Alzheimer’s dementia in 2007. The family advised the panel that Mrs O was probably unable to follow simple commands, as she did not understand what was being said by carers. The panel also asked about Mrs O’s altered states of consciousness (thought to have been vasovagal faints) and whether the family had witnessed any of these. The family advised that they had not witnessed them but had been aware of them occurring. The panel also noted that Mrs O had visited A&E in 2009 and 2010 but that she seemed to recover quickly.
24. Each part of the report refers to Mr O’s evidence. We can see the family submissions, and the reasons why they think the domains should have been weighted differently. Mr O’s submission, and that of his solicitor, is included in the file. He attended with two family members, and his solicitor, and contributed to the discussion.
25. We are satisfied the IRP has analysed the evidence, including the medical records. The IRP report aligns with the information in the records. We have seen no indication the IRP failed to gather any relevant evidence, or not consider Mr O’s or his solicitor’s evidence. We have seen no indications of failings in this part of the IRP’s consideration which would lead us to question its decision.
26. Secondly, we consider whether prior to reaching its decision the IRP had an appropriately clinically led discussion of the impact and interaction of the relevant facts.
27. Paragraph 200 of the National Framework says, ‘NHS England is responsible for convening independent review panels consisting of an independent chair, a CCG representative and a local authority social services representative’.
28. We are satisfied NHSE had an appropriately constituted panel. There was an independent chair and independent clinical adviser present, which the panel consulted. The independent clinical adviser can support panels with specific clinical matters. We can see there was also a representative from the local authority to advise on social matters. There was no CCG representative in attendance, but the CCG did submit representation.
29. The report shows the IRP worked through each of the domains in turn, discussing this with Mr O, his family, and his solicitor. This was cross referenced with the information available in the records.
30. At the IRP, Mr O specifically disputed the following domains: behaviour, cognition, communication, mobility, nutrition, drug therapies and medication, and altered states of consciousness. We have considered his and his solicitor’s submissions to understand the reasons for this.
31. Regarding the behaviour domain, the IRP assessed this domain as moderate, (high from July 2011). Mr O and his solicitor say the domain should have been assessed as high throughout. Mr O and his solicitor raised concerns about Mrs O’s aggressive behaviour and non-compliance with care.
32. In September 2009, Mrs O is recorded as being ‘restless and in a bad mood’, this episode lasted for three days. Later the records say that ‘she became a bit aggressive, she was trying to stand up unaided’. The records provide very little additional evidence of aggressive behaviour until Mrs O moved Care Homes. Records from February 2011 show she ‘started to show some aggression and non-compliance during personal care interventions’ and that she was not always cooperative. In November 2011, the records show that she required two carers to attend to her personal care interventions, due to aggression.
33. The Care Home completed a behaviour care plan, which states that Mrs O thinks that the care home was her house and got very annoyed that other people were there. She also would refuse to go to bed until the people were all gone. She required a leave and return approach to complete care tasks and would occasionally complete her own personal care and change of clothes if they were left out for her to access.
34. There are also behaviour records and incident forms which detail incidents of verbal and physical aggression, and non-compliance with personal care. Mr O’s solicitor submitted that Mrs O: ‘demonstrated a high level of challenging behaviour, this included hitting out, spitting, scratching at staff, throwing faeces, frequent verbal and occasional physical aggression towards other residents’.
35. The IRP report shows the panel discussed the behaviour domain in depth and discussed this domain with Mr O, his family and solicitor. The IRP report shows the panel considered evidence from the family and Mrs O’s records, this formed part of its consideration when determining the score for the behaviour domain, and this is consistent with the records.
36. Regarding the cognition domain, the IRP assessed this domain as high. Mr O and his solicitor say the domain should have been assessed as severe.
37. Mr O’s solicitor submitted that Mrs O was unable to feed herself, disorientated to time and place, and could not participate in decision making. The solicitor also states that Mrs O was unable to recognise family members and had no understanding or insight into her medical conditions.
38. The hospital records show Mrs O was confused and disorientated when she was an in-patient. Throughout the notes there are various references to Mrs O having ‘Alzheimer’s type Dementia’. The notes also show that she demonstrated poor insight into her condition and capabilities. One entry says that Mrs O ‘thinks Care Home is her own house’. When she was in a Care Home setting, the notes show that she was much more settled and participated in activities and socialising. One entry states that she ‘can express needs and wishes; enjoys playing bridge’. There is also evidence that Mrs O was able to recognise and identify that she was in pain and identify the site of the pain.
39. In September 2013, the Care Home records noted that Mrs O lacked the capacity for decision making, as she was unable to comprehend and retain information to weigh up and base her decision on it.
40. The IRP report shows the panel discussed the cognition domain in depth and discussed this domain with Mr O, his family and solicitor. The IRP report shows the panel considered evidence from the family and Mrs O’s records. This formed part of its consideration when determining the score for the cognition domain and this is consistent with the records.
41. Regarding the communication domain, the IRP assessed this domain as low, (moderate from July 2012). Mr O and his solicitor say the domain should have been assessed as moderate throughout. Mr O’s solicitor submitted that Mrs O ‘was someone who was unable to reliably communicate their needs and their communication was difficult to understand.’
42. In August 2009, the records show that Mrs O was able to express pain and would complain of hip pain on the right side. In August 2010, Care Home records state that Mrs O was deaf in her right ear and that she required spectacles. The records also show that she could express her needs and wishes and enjoyed the company of others. Additionally, records state that she was a ‘very chatty lady and enjoys talking with other residents and staff’.
43. The records show that district nurses would visit and carry out syringing of her ears to break down the build-up of ear wax. Mrs O was also assessed and given hearing aids.
44. The IRP report shows the panel discussed the communication domain in depth, and discussed this domain with Mr O, his family and solicitor. The IRP report shows the panel considered evidence from the family and Mrs O’s records. This formed part of its consideration when determining the score for the communication domain and this is consistent with the records.
45. Regarding the mobility domain the IRP assessed this domain as moderate. Mr O and his solicitor say the domain should have been assessed as high (this domain was previously assessed as high in 2009). Mr O’s solicitor states that Mrs O was always at risk of falling as she often tried to stand unaided. The solicitor says that special attention would have been needed to prevent an incident.
46. Mrs O was assessed by a ‘Falls risk assessment tool’ while she was a Care Home resident. In 2009 she was considered at risk of falling. In March and April 2010, she was considered at high risk of falls but had, had no recent falls. In May 2010, the Care Home assessed her as at moderate risk of falling with no recent falls.
47. The notes show that in August 2009, Mrs O required two members of staff to assist her, and a hoist to transfer. By January 2010, Mrs O was doing well with a walking frame. In August 2011 the Care Home notes show that Mrs O could transfer by a frame but preferred to be in a wheelchair over a distance. She was not tending to get up on her own and walk.
48. From December 2011, Mrs O is noted as requiring a hoist, and two care staff for all transfers, and by November 2012 she had very limited mobility. Mrs O had a mobility care plan in place. There are no falls recorded during the years 2009 to 2012. Mrs O was risk assessed regularly and was assessed as at low risk in respect of her mobility in July 2010. She was assessed as at moderate risk of falls from 2011 until 2013.
49. The IRP report shows the panel discussed the mobility domain in depth and discussed this domain with Mr O, his family and solicitor. The IRP report shows the panel considered evidence from the family and Mrs O’s records. This formed part of its consideration when determining the score for the mobility domain and this is consistent with the records.
50. Regarding the nutrition domain the IRP assessed this domain as low. Mr O and his solicitor say the domain should have been assessed as high. Mr O’s solicitor states that Mrs O suffered an 11% weight loss during the first half of 2009 and would have required ongoing monitoring and supervision. The solicitor submits that she would have been at risk of malnutrition and was prescribed preventative food supplements.
51. The Care Home records show that Mrs O had a low body mass index in July 2009 and gained weight until her weight became stable in September 2009. The records show that in February and March 2010 she enjoyed mealtimes and ate well, and then in April 2010 she needed encouragement and a soft diet.
52. In June 20011 it was noted that Mrs O had lost 3kg in weight. As a result, the Care Home referred her to the District Nursing Service, diet and fluid charts were put in place to monitor intake, and she was weighed weekly. She was also prescribed nutritional supplement drinks. From June 2010 onwards her weight recordings stabilised.
53. Mrs O was risk assessed throughout her Care Home stay for her nutritional intake, and between July 2010 and November 2011, she was assessed as being low risk. Between November 2011 and June 2012, she was assessed as low bordering on moderate risk. Between October 2013 and November 2013, she was assessed as being at moderate risk.
54. The IRP report shows the panel discussed the nutrition domain in depth and discussed this domain with Mr O, his family and solicitor. The IRP report shows the panel considered evidence from the family and Mrs O’s records. This formed part of its consideration when determining the score for the nutrition domain and this is consistent with the records.
55. Regarding the drug therapies and medication domain, the IRP assessed this domain as moderate. Mr O and his solicitor say the domain should have been assessed as high. Mr O’s solicitor says that Mrs O experienced periods of unresponsiveness which would have required significant monitoring and supervision. The solicitor also states that Mrs O experienced one instance of intravenous (IV) medication and was prescribed a lot of medication that required staff to be astute with its frequency and intensity and communicate back to nurses and GPs. Mrs O suffered from hypertension, low blood pressure, urinary tract infections (UTIs) and chest infections during this time. Mr O’s solicitors says Mrs O had an ongoing and active medication regime in place, made complex as she would refuse medication.
56. The Care Home records show that Mrs O could be reluctant to take her medications and she required a lot of reassurance. At one point a review was undertaken, and the Care Home were advised that only the medication that was necessary should be really encouraged. Later in the records, carers noted that Mrs O would occasionally refuse to take her medication but that generally there were no difficulties in her compliance. In 2013, the Care Home records show that Mrs O was only able to take her medication in liquid form.
57. The records show that Mrs O was able to tell staff that she was in pain. Mrs O was also prescribed Oramorph for relief of pain.
58. The IRP report shows the panel discussed the drug therapies and medication domain in depth and discussed this domain with Mr O, his family and solicitor. The IRP report shows the panel considered evidence from the family and Mrs O’s records. This formed part of its consideration when determining the score for the drug therapies and medication domain and this is consistent with the records.
59. Regarding the altered states of consciousness domain, the IRP assessed this domain as moderate. Mr O and his solicitor say the domain should have been assessed as high.
60. There are multiple episodes of altered state of consciousness recorded in the Care Home records including:
· December 2009, ‘syncopal episode due to dehydration requiring transfer to hospital’.
· December 2009, ‘temporary loss of consciousness cause unknown’.
· March 2010, ‘collapse, cause unknown’.
· June 2010, ‘passed out and was sweating and pale in colour, required transfer to hospital’.
61. Mr O’s solicitor says that the frequency of the episodes was significant, and that Mrs O required skilled medical intervention to manage the episodes.
62. The IRP report shows the panel discussed the altered states of consciousness domain in depth. They also discussed this with Mr O, his family, and solicitor. The IRP report shows the panel considered evidence from the family and Mrs O’s records. This formed part of its consideration when determining the score for the altered states of consciousness domain, and this is consistent with the records.
63. The IRP report shows there was a clinically led discussion of the key facts. It has explained its reasons for its views in each of the domains. The IRP set out how it considered Mr O’s evidence, the CCG’s evidence, and the records. We have seen no evidence to suggest any facts were missed or not properly considered as part of the process. We have therefore seen no indications of failings here.
64. Thirdly, we consider whether the IRP’s final decision adequately considered and explained the conclusions of the clinically led discussion.
65. Paragraph 199 of the National Framework says, when considering eligibility, NHS England should provide: ‘clear and evidenced written conclusions on the process followed by the NHS body and also on the individual’s eligibility for NHS Continuing Healthcare, together with appropriate recommendations on actions to be taken. This should include the appropriate rationale’.
66. The report shows there was a discussion and consideration of the four key indicators (nature, intensity, complexity, and unpredictability). The four key indicators may alone, or in combination, demonstrate a primary health need because of the quality and/or quantity of care that is needed to meet the individual’s needs.
67. We have reviewed the full file which the IRP held. We have carefully considered the medical records, Mr O’s, and his solicitor’s evidence (including independent nursing reports) raised in their submission and at the IRP, and the IRP report. Our view is that the IRP’s weightings and rationales can be supported. They are consistent with the descriptors and in line with the National Framework.
68. The IRP has provided a clear explanation for its views about Mrs O’s needs. It has used a variety of sources and evidence to show how it weighted each of the domains. It has detailed why its decision may differ to the CCG’s or Mr O’s. This is in line with the National Framework, and we cannot see that NHSE got anything wrong here. We have seen no indications of failings for this part of the IRP’s process.
69. Fourthly, we consider whether the IRP applied the appropriate eligibility tests. We also consider whether the IRP’s conclusions about them were clinically reasonable.
70. The IRP has worked through each of the four key indicators in turn. When considering the nature of Mrs O’s need, the IRP said: ‘It was recognised that Mrs O was dependent on her carers for all of her care needs. Their care was essential to maintain her well-being and if it had not been provided, her condition could have quickly deteriorated. However, it was considered that the care interventions that Mrs O needed were primarily straightforward and of a social care nature. While Mrs O had a number of care needs, her main requirements were for support and assistance with the activities of daily living. All her care needs could be anticipated such that they could be resolved with planned interventions.’
71. Mr O’s solicitor says regarding nature, that the nature of Mrs O’s medical problems (both mental and physical) meant that she was at risk of deteriorating and unable to risk assess. The solicitor says that the intervention of staff meant that her life was planned and monitored preventing her from suffering from dehydration, malnutrition, suffering further infections or other medical ailments.
72. When considering the intensity of Mrs O’s need, the IRP said: ‘the evidence indicated that Mrs O’s care needs did not require an increased number of interventions, with extra carers, or for lengthy periods, and therefore did not demonstrate the level of intensity associated with a primary health need and were within the remit of the Local Authority to provide.’
73. Mr O’s solicitor said that the intensity of Mrs O’s care needs meant that ‘on any given day, the level of support that Mrs O would have required factoring in her unique traits of aggression, agitation, manual handling and nutrition would have been more than any level of social care provision could have reasonably been expected to provide.’
74. When considering the complexity of Mrs O’s need, the IRP said: ‘there was no evidence that Mrs O’s needs were difficult to meet requiring a high level of skill or knowledge. There was also no indication that there was any significant interaction between the care domains across these different areas of need, such that they impacted on Mrs O’s health and wellbeing or made her care needs more complex to address. There was no increase in the level of skill or knowledge, or staff time required to meet her needs as a result of any significant interaction between her areas of need. Mrs O’s overall needs could not be considered difficult to plan or provide for. The Panel considered that whilst there was some interaction between Mrs O’s care needs, there was no evidence that this had made her care delivery complex or complicated to provide. The Panel concluded that the needs arising from these interactions did not require enhanced skill or knowledge to address them and these did not indicate the level of complexity associated with a primary health need and were within the remit of the Local Authority to provide.’
75. Regarding complexity, Mr O’s solicitor submits that Mrs O’s needs were not routine and that she had complex needs. The solicitor states that staff had to be trained in the skills to manage and care for those suffering from dementia and the management of analgesia. Staff would have had to closely monitor Mrs O and to provide intense intervention.
76. When considering the unpredictability of Mrs O’s need, the IRP said: ‘The Panel acknowledged that the care home was able to provide all of Mrs O’s care needs during this review period and all care needs were care planned for. It was acknowledged that during the period being reviewed there was nothing to suggest that Mrs O’s care needs changed or fluctuated on a day-to-day basis and overall her condition was one of a slow and gradual deterioration, consistent with her gradually progressing dementia. There was nothing to indicate that frequent, unexpected or significant changes were required to her care plan. Overall, the Panel considered that while Mrs O required monitoring to notice any general changes in her condition and to protect her from harm, the level of monitoring was not felt to be significantly high. The Panel concluded that there was not a level of unpredictability associated with a primary health need during the period of the review.’
77. Regarding unpredictability, Mr O’s solicitor says that Mrs O’s non-compliance with care was unpredictable and had an unrecognisable pattern to triggers or occurrence. She also suffered from unpredictable altered states of consciousness which warranted emergency intervention. The solicitor submits that staff would have react to the unpredictable instances of behaviour and changes in Mrs O’s state of consciousness and closely monitor her.
78. The IRP concluded that Mrs O’s needs were ‘merely incidental or ancillary to the provision of accommodation and of a nature which it could have been expected that an authority, whose primary responsibility is to provide social services, could have been expected to provide and that consequently [Mrs O] did not have a primary health need.’
79. The evidence supports the IRP’s conclusion, and we cannot see Mrs O’s needs fluctuated to a degree which created serious challenges in delivering her care.
80. The IRP’s consideration of the nature, intensity, complexity, and unpredictability is consistent with the evidence. Its rationale for each of these indicators can be supported. It is clear how the IRP has come to its conclusion and decisions and each part is explained in line with the National Framework.
81. Therefore, it is our view is that the IRP’s conclusion can be supported. The IRP showed it applied the eligibility tests in line with the National Framework. There is no evidence to suggest the IRP’s recommendation was unreasonable or clinically unsound. There are no indications of failings in this part of the IRP’s consideration.
82. We acknowledge Mr O has a different view. It is important to recognise how important and insightful his account is. This is because he was there at the time and can offer first hand evidence.
83. We have considered if the IRP looked at the appropriate evidence when reaching a view and the CCG’s decision was sound. We can see Mrs O needed care and support to keep her safe and well. This is not intended to take away from the needs she did have.
84. We have not seen any evidence that NHSE failed to meet its obligations under the National Framework and its decision can be supported by the evidence.