18. We cannot question discretionary decisions when they have been made without maladministration (fault). This includes decisions about eligibility for CHC. It is our role to consider whether an IRP’s decision making was in line with the National Framework. This means we will only carry out a detailed investigation if we see indications of maladministration in the way an IRP reached its decision.
19. It is not our role to say whether someone is eligible for CHC or to recommend NHSE should find someone eligible. CHC eligibility decisions are based on clinical judgements and opinions. The fact that someone else has a different opinion does not mean there must have been maladministration in the decision making process.
Mr A’s concerns about NHSE and the IRP
20. Mr A complains NHSE took too long to organise the IRP. He complains the panel members were not independent as they worked for the NHS and social care and were involved with CHC work. He also complains the panel did not have the relevant experience to consider his wife’s mental health needs.
The time it took NHSE to organise the IRP
21. Mr A wrote to NHSE with his appeal on 16 September 2019. It sent him a questionnaire to complete, and he returned this on 31 October 2019. NHSE then contacted the CCG for its records on 10 December 2019, but it did not receive them all until 25 June 2020. NHSE then contacted Mr A with a date for the IRP, on 16 July 2020.
22. The time limits guidance says NHSE should complete IRPs within three months of receipt unless there is a good reason for extending this timescale. It lists several reasons for extending the timeline and these include a delay in the CCG providing NHSE with the records it needs.
23. Based on what we have seen, the main reason for NHSE’s delay was the time it took to get all the records from the CCG. We think this was a reasonable reason to delay the IRP so will not be taking any further action. We do recognise this delay must have been very frustrating for Mr A.
Independence of panel members
24. The National Framework and Standing Rules say NHSE should select IRP Chairs it considers appropriate following an open recruitment process. They say IRP Chairs cannot be a chair, member, director, governor, or employee of an NHS organisation. They also say IRP Chairs cannot be elected members or employees of a local authority.
25. The National Framework and Standing Rules say IRPs should also consist of members from a CCG and a local authority not previously involved in the case. They also say these panel members should not be the chair, chief executive, non-executive director or non-officer member of an NHS organisation or an elected member of a local authority.
26. We understand the IRP consisted of a Chair as well as a CCG representative and a local authority representative from organisations not previously involved in Mr A’s case. The panel members therefore look to be in line with both the National Framework and Standing Rules. We hope this assures Mr A.
Experience of IRP members
27. Looking at the IRP report, the panel consisted of a Chair (a former nurse), a CCG representative (a registered nurse) and a local authority representative (an occupational therapist). The panel also had access to a clinical adviser (a registered mental health nurse).
28. The National Framework and Standing Rules do not say the panel need to have any specific experience or qualifications. However, they do say IRPs will need access to independent clinical advice if they need it. It says IRP Chairs should decide in advance if the panel will need any advice and whether this should be provided in writing or in person.
29. Based on what we have seen, the IRP Chair felt the panel needed access to clinical advice from a mental health professional, so a mental health nurse attended. Considering Mrs A’s history of mental health issues, it appears the IRP had access to appropriate clinical advice as per the National Framework and Standing Rules.
Mr A’s concerns about the Coughlan judgment
30. Mr A complains the IRP did not consider his wife’s eligibility in accordance with case law, specifically the Coughlan judgment. He refers to his wife’s needs being greater than Ms Coughlan’s and suggests she should therefore have been found eligible for CHC funding.
31. We are familiar with the legal judgment Mr A is referring to. It is a judgment made by the Court of Appeal in 1999 where the Court gave an indication of the upper limit of care that local authorities can provide to people. This case is summarised in the National Framework, set out in Annex B, and referenced throughout.
32. The Coughlan judgment took place before the Department of Health introduced the National Framework used today. It developed this guidance along with the standard Checklist and DST to help ensure CHC eligibility decisions are consistent and in line with legal judgments such as Coughlan.
33. The National Framework says CCGs and IRPs should make eligibility decisions on a case by-case basis using a careful and detailed assessment, while being aware of case law such as Coughlan. CCGs and IRPs do not use any kind of Coughlan test or compare individuals’ needs to Ms Coughlan’s. We hope Mr A finds this information helpful.
Mr A’s concerns about the IRP’s domain weightings
Mobility
34. The CCG weighted Mrs A’s mobility needs as ‘High’, and the IRP agreed. The descriptor for High in this domain is: Completely unable to weight bear and is unable to assist or cooperate with transfers and/or repositioning.
OR Due to risk of physical harm or loss of muscle tone or pain on movement needs careful positioning and is unable to cooperate.
OR At a high risk of falls (as evidenced in a falls history and risk assessment).
OR Involuntary spasms or contractures placing the individual or others at risk.
35. The IRP said Mrs A was unable to mobilise and was nursed in bed. It said she had little movement in her upper limbs and was unable to assist with transfers or repositioning. The IRP said she was unable to turn her head or hold a cup. It said she was hoisted for transfers and sometimes became anxious.
36. The IRP said Mrs A needed two carers to move her and she was propped up in bed into a sitting type positioning using pillows. The IRP said she did need careful positioning to avoid pain and to make sure she was comfortable. The IRP said it saw no evidence her positioning was critical or that moving and handling could cause her physical harm.
37. Mr A believes his wife’s mobility needs should be weighted ‘Severe’. The descriptor for Severe in this domain is: Completely immobile and/or clinical condition such that, in either case, on movement or transfer there is a high risk of serious physical harm and where the positioning is critical.
38. Mr A says his wife is bedridden and could hardly be less mobile. He says staff need to turn her every two hours and hoist her to the toilet. He says she cannot even put a drink to her mouth. We are very sorry to hear Mrs A’s mobility has decreased to this extent.
39. We have carefully considered the IRP’s comments alongside NHSE’s records. The care home records from 10 December 2017 suggest Mrs A was not completely immobile at the time. They refer to her being at risk of falling from her bed, sitting in the lounge daily and joining in with activities when she felt like it. They also refer to her joining in with daily exercise class as much as she could.
40. Overall, the evidence suggests Mrs A’s mobility was very limited, but she was not completely immobile. It also suggests she was not at risk of serious harm and positioning was not critical. We therefore think the IRP’s weighting in this domain looks to be in line with the available evidence and the domain descriptor in the DST guidance.
Psychological and Emotional Needs
41. The CCG weighted Mrs A’s psychological and emotional needs as ‘Moderate’, and the IRP agreed. The descriptor for Moderate in this domain is: Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, which do not readily respond to prompts and reassurance and have an increasing impact on the individual’s health and/or well-being.
OR Due to their psychological or emotional state the individual has withdrawn from most attempts to engage them in care planning, support and/or daily activities.
42. The IRP said the care records show Mrs A was comfortable in bed, sleeping a lot but responsive and communicative. It said a doctor saw her on 29 November 2017 and noted she presented as quite alert and responsive. The doctor said she recognised them, smiled, and engaged in conversation. The doctor also said her mood was stable and she did not present as depressed.
43. The IRP said Mrs A was mostly cared for in her room and her family say her mood and alertness was variable. It said carers noted she was anxious when hoisted but not generally. The IRP said it recognised Mrs A had a history of depression and mood swings, but she was felt to be settled at the time. It also noted she was withdrawn but easily rousable and she engaged with some daily activities.
44. Mr A believes his wife’s psychological and emotional needs should be weighted ‘High’. The descriptor for High in this domain is: Mood disturbance, hallucinations or anxiety symptoms, or period of distress, that have a severe impact on the individual’s health and/or well-being.
OR Due to their psychological or emotional state the individual has withdrawn from any attempts to engage them in care planning, support or daily activities.
45. Mr A says he does not know what state he is going to find his wife in day-to-day and she has no idea what is going on. He says she is very, very low and chokes back tears though she cannot express why. He says she watches TV but does not take anything in. He told us his wife loves music but does not respond to this anymore. We cannot imagine how difficult this must be for him to see.
46. We have again carefully considered the IRP’s comments alongside NHSE’s records.
Mrs A’s GP records from 28 November 2017 say she had ‘picked up a lot’ and was ‘eating and improving’ at the care home. On 5 December 2017, the GP records say she had ‘continued to improve’.
47. Mrs A’s GP records also show Community Mental Health Services visited her on 29 November 2017 and noted she was ‘quite alert and responsive’. They say she ‘smiled and engaged in conversation’ and ‘reported feeling comfortable’.
48. Mrs A’s care home records from 10 December 2017 say there were no signs of bipolar disorder or depression at that time. They say she was very anxious when staff moved or transferred her, and she needed a lot of reassurance and comforting.
49. Mrs A’s care home records also say she sat in the lounge daily, enjoyed watching daily activities and would join in if she felt like it. They say she liked to join in daily exercise class as much as she could, and she enjoyed the company of staff and other residents. They said she could not physically do some activities but liked to listen to music and do quizzes.
50. Overall, we have not seen any evidence that suggests the IRP should have concluded Mrs A’s mental health issues were having a severe impact on her or that she was completely withdrawn. The records indicate she appeared content and settled but did experience some distress when being moved, though this was well managed by staff. We therefore think the IRP’s weighting in this domain looks to be in line with the available evidence and the domain descriptor in the DST guidance.
Drug Therapies and Medication
51. The CCG weighted Mrs A’s medication needs as ‘Moderate’, and the IRP agreed. The descriptor for Moderate in this domain is: Requires the administration of medication (by a registered nurse, carer or care worker) due to: non-concordance or non-compliance, or type of medication (for example insulin), or route of medication (for example PEG) OR Moderate pain which follows a predictable pattern; or other symptoms which are having a moderate effect on other domains or on the provision of care.
52. The IRP said there was no evidence to suggest Mrs A was in an acute depressive episode. It recognised her previous acute depressive episodes were not easily treated with medication. It said her medication regime was reviewed in hospital in November 2017 and her medications were not being changed or adjusted.
53. The IRP said Mrs A needed a registered nurse to administer her medications via PEG. It said she was taking anticonvulsants and antidepressants regularly as well as paracetamol up to four times a day for pain. It also said she was not given any medications if she had a seizure.
54. Mr A believes his wife’s medication needs should be weighted ‘High’. The descriptor for High in this domain is: Requires administration and monitoring of medication regime by a registered nurse, carer or care worker specifically trained for the task because there are risks associated with the potential fluctuation of the medical condition or mental state or risks regarding the effectiveness of the medication or the potential nature or severity of side-effects. However, with such monitoring the condition is usually non-problematic to manage.
OR Moderate pain or other symptoms which is/are having a significant effect on other domains or on the provision of care.
55. Mr A says his wife has been prescribed an anti-convulsant by the stroke unit. He says he has never seen signs of a seizure, but she does have unresponsive episodes. He says one lasted for 30 hours and they have never had a real explanation for these. He says it has been suggested the anti-convulsant be changed. He says his wife has complex needs and a psychiatrist has agreed with this.
56. Mrs A’s care plan dated 10 December 2017 shows her regular medications were given by a nurse through her PEG every morning and evening. We have seen nothing to suggest there were any risks like those set out in the descriptor for ‘High’.
57. Mrs A’s records from the Community Mental Health Services on 29 November 2017 say she only reported joint pain in her knee. Mrs A’s care plan says she had mild pain in her knees at times. It says staff used facial expressions to tell if she was in pain and they could give her paracetamol as needed. It also says staff should monitor her closely and report any changes to her GP.
58. Overall, it appears Mrs A’s medication was administered by a nurse as it was given via PEG. It appears she sometimes experienced mild pain, but this was well managed using paracetamol. We have seen no evidence of the risks set out in the descriptor for High that we think the IRP overlooked. We therefore think the IRP’s weighting in this domain looks to be in line with the available evidence and the domain descriptor in the DST guidance.
Altered States of Consciousness (ASC)
59. The CCG weighted this domain as ‘High’, and the IRP agreed. The descriptor for High in this domain is: Frequent episodes of ASC that require the supervision of a carer or care worker to minimise the risk of harm.
OR Occasional ASCs that require skilled intervention to reduce the risk of harm.
60. The IRP said Mrs A had previously suffered from non-responsive episodes some of which needed hospital admission. It said neurologists had seen her and discussed possible diagnoses. It said she was recovering from a stroke at the time which was noted to cause low levels of arousal, lack of drive and initiative, and general slowing down.
61. The IRP said there was no preventative care or treatment in place for when Mrs A experienced a non-responsive episode. It said she was noted to be drowsy, which could have been due to sub-clinical seizures (seizures that do not have any clinical signs or symptoms) but there was no extra care or therapy in place.
62. The IRP said Mrs A did not have clinical seizures on most days and it was unable to say how often she had sub-clinical seizures. It said there was no close observation or treatment in place. It therefore felt her needs were ‘High’.
63. Mr A believes his wife’s needs should be weighted ‘Priority’. The descriptor for Priority in this domain is: Coma OR ASC that occur on most days, do not respond to preventative treatment, and result in a severe risk of harm.
64. Mr A says though his wife is immobile, she does not know what is happening. He says she is unable to express herself. He spoke of feeling hopeless when he can tell something is bothering her or she has something to say but she cannot tell you and he does not know what she wants or needs. We are incredibly sorry to hear this.
65. Mrs A’s clinical records show she has a history of stroke and cerebrovascular disease. She was admitted to hospital on 19 September 2017 with an acute right frontal intra-cerebral haemorrhage and ischaemic seizures.
66. Mrs A’s care home records say Mrs A had a history of two strokes and received medication for this. They also say staff should monitor her for signs of stroke and transient ischemic attacks (brief stroke-like attacks) and report any changes to her GP.
67. We have not seen any evidence to indicate Mrs A was having seizures at the time. There is some suggestion she may have been having sub-clinical seizures. If she was, the evidence suggests these were not on most days and did not put her at severe risk of harm. We therefore think the IRP’s weighting in this domain looks to be in line with the available evidence and the domain descriptor in the DST guidance.
Mr A’s concerns about the four key indicators
68. Mr A is unhappy with how the IRP considered the four key indicators, particularly the complexity and unpredictability of his wife’s needs.
Nature
69. The National Framework describes ‘Nature’ as: This 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.
70. The IRP weighted all 12 domains as follows: • Breathing – No Needs • Nutrition - Moderate • Continence - Moderate • Skin - Moderate • Mobility - High • Communication - High • Psychological and Emotional Needs - Moderate • Cognition - Severe • Behaviour – No Needs • Drug Therapies and Medication - Moderate • Altered States of Conscious - High • Other significant care needs – No Needs
71. The IRP noted Mrs A’s needs in each domain and concluded she needed to be looked after in a safe environment where staff could give her ongoing attention to ensure they met all her needs and managed any risks. It found the nature of her care could largely be met by social care interventions and therefore she did not have a primary health need.
72. Looking at the evidence seen by the IRP, Mrs A needed others to anticipate and meet all her care needs. She had a history of depression and unresponsive episodes. She had limited cognitive function and communication. She had very limited mobility and was mainly cared for in bed needing two carers for all transfers and repositioning. She became anxious when moved and needed staff to comfort and reassure her.
73. Mrs A was primarily fed via PEG but also took pureed food and fluids by mouth. She was at risk of choking so needed close supervision. She was doubly incontinent and needed regular observation and cream applied to pressure areas. She was given all her medications by a nurse via PEG and needed regular paracetamol for joint pain in her knees.
74. However, the evidence suggests Mrs A was psychologically well at the time, she seemed happy and content. She was gaining weight, she was compliant with her care and her skin was intact. While Mrs A’s condition was expected to deteriorate, the records suggest her condition had improved following admission to the care home.
75. Overall, we have not seen anything the IRP may have overlooked that suggests Mrs A’s needs were, by their nature, beyond the threshold of what a local authority would be expected to meet. We therefore think the IRP’s consideration looks to be in line with the available evidence and the National Framework.
Intensity
76. The National Framework describes ‘Intensity’ as: This 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’).
77. The IRP noted Mrs A’s needs and the care she needed to meet them. It concluded she did not need an increased number of daily interventions with many carers, or for lengthy periods. It said she did not demonstrate a level of intensity associated with a primary health need.
78. Looking at NHSE’s records, Mrs A needed staff to anticipate and meet all her needs. She had care needs over several domains particularly in cognition, mobility, communication, and ASC.
79. Mrs A needed a nurse to run her PEG feed at night and to administer her medications. She needed assistance from one member of staff with eating and drinking and assistance from two members of staff with all movement, transfers, and personal care. She also needed close observation and support.
80. Overall, it appears Mrs A did not need frequent interventions from staff with any special training or sustained care for long periods of time. We therefore think the IRP’s consideration looks to be in line with the available evidence and the National Framework. We cannot see the IRP missed anything.
Complexity
81. The National Framework describes ‘Complexity’ as: This is concerned with how the needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s) and/or manage the care. This may arise with a single condition, or it could include the presence of multiple conditions or the interaction between two or more conditions. It may also include situations where an individual’s response to their own condition has an impact on their overall needs, such as where a physical health need results in the individual developing a mental health need.
82. The IRP said Mrs A’s cognition impacted all her care needs. It said she was unable to initiate any of her care and needed staff to anticipate all her needs. It said her mobility needs put her at increased risk of pressures sores as well as putting her general health and wellbeing at risk. It said this risk was further increased by her double incontinence.
83. The IRP acknowledged Mrs A’s ongoing prognosis and future functioning was hard to predict. It noted rehabilitation had proved impossible due to her level of cognition and non compliance with some therapies in hospital. It also noted that it was difficult to fully assess her mood.
84. The IRP said a psychiatrist saw Mrs A at the time and felt she did not have depression. However, it recognised she had a long history of depression and that she remained under the mental health team in case this changed. The IRP also said her high level of needs in ASC impacted on the observation she needed. However, at the time, there were no clinical seizures.
85. The IRP said there was interaction between several domains. It concluded that needs arising from these interactions did not, on a day-to-day basis, require enhanced skills or knowledge to address them. It said these needs did not indicate the complexity associated with a primary health need.
86. Overall, the evidence shows there was some interaction between domains, but Mrs A’s needs seemed predictable and therefore easily anticipated and met through planned care interventions. It appears she only needed support from a registered nurse in relation to her PEG. We therefore think the IRP’s consideration looks to be in line with the available evidence and the National Framework.
Unpredictability
87. The National Framework describes ‘Unpredictability’ as: This 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.
88. The IRP said Mrs A had only recently been admitted to the care home. It noted her history of acute mental health issues and her needs at the time. However, it said her needs were predictable at the time of the assessment and did not indicate a primary health need.
89. Overall, it appears Mrs A’s needs were stable at the time of the assessment, meaning the care she required to meet them was predictable. We note the IRP was mindful Mrs A’s condition was expected to deteriorate and recommended the CCG reassessed her. We therefore think the IRP’s consideration looks to be in line with the available evidence and the National Framework.
90. Mr A’s comments to us focused on his wife’s current condition. We have only considered her needs at the time of the CCG’s assessment as this is what the IRP looked at. We understand the CCG offered to reassess Mrs A in July 2018 and January 2020, but Mr A declined. We know the CCG assessed Mrs A in January 2022 following the IRP and found her not eligible.
Summary
91. We have carefully considered Mr A’s complaint about NHSE. We have seen no indications anything went wrong. We will therefore not be considering his complaint any further. We hope this statement has clearly set out our thinking and addressed his concerns. We would like to take this opportunity to wish Mr A, his wife and their family the very best for the future.