13. 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. We have done this and, we have not found any indications that something has gone wrong.
14. The purpose of the IRP is to review the procedures the ICB followed in deciding about a person’s eligibility for CHC. CHC is a package of care the NHS pays for when someone has a ‘primary health need’. In reaching a view about whether the ICB followed the correct process and whether it correctly applied the eligibility criteria, the IRP can recommend that the ICB should reconsider the case. This would be to address 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.
15. 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 in reaching its decision.
16. 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.
17. 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.
Did the IRP establish all the appropriate and relevant clinical facts?
18. Paragraph 199 of the National Framework says: ‘the key elements involved in considering requests for independent reviews of NHS Continuing Healthcare eligibility include scrutiny of all available and appropriate evidence as described in the Local Resolution section.’
19. Based on the information provided by NHS England, we can see the IRP considered the following:
· case summary provided by One Devon Integrated Care Board
· ICB verification decision documentation
· local resolution meeting (LRM) documentation
· quality checklist from the ICB
· submission from a specialist NHS Continuing Healthcare company (CHC company)
· correspondence between the CHC company and the ICB
· care records two nursing homes and a care home in the Devon area that included care plans, care notes, and falls risk, skin, continence, mental capacity, nutrition assessments and medications records
· behaviour incident forms from the care home.
· hospital records.
20. We can see Mr O’s representative forwarded his views to the IRP and it was able to consider these. It also obtained and considered all the necessary information about how the ICB had reached its decision. We can see there are no obvious omissions in the documents and 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.
Before it made its decision, did the IRP have a clinically-led discussion about the impact and interaction of the clinical facts?
21. Paragraph 200 in the National Framework says:
‘NHS England is responsible for convening independent review panels consisting of:
· An independent chair (appointed by NHS England);
· A CCG [now ICB] representative (who is not from the CCG that made the decision which is the subject of the review)
· A local authority Social Services representative (who is not from a local authority where all or part of the CCG involved in the decision is located).’
22. The records from the IRP show it had an appropriately constituted panel. This included an independent chair and an independent NHS representative. The panel also included a local authority representative to advise on social care issues.
23. We can see from the IRP report (pages 20 to 26) that it held a clinical discussion on each of the domains and key indicators. It referenced the relevant evidence and took advice from clinical advisers to inform its decisions.
24. Mr O has told us he disagrees with how the IRP considered the behaviour domain. We have detailed our view on this below.
Behaviour
25. The IRP assessed Mr G’s level of need for this domain as low. Mr O says his father’s needs were high.
26. Mr O says the IRP should have taken more note of his father being intractably restless, which is listed as a challenging behaviour within the DST. He says that Mr G said he could walk unaided without falling but this was not true. Mr O thinks the IRP should not have only considered Mr G’s account for the mobility domain. He says his father’s cognitive impairment created associated needs in the behaviour domain. He also says the care home’s preventative measures were not successful in managing Mr G’s behaviour, because he continued to try and mobilise unaided and fell as a result. He does not believe the IRP recorded his father’s impairments in this domain.
27. The IRP said the ICB had assessed Mr G’s needs as high for this domain in March 2019 but re-assessed this as low in September 2019. It reported the ICB said this was because Mr G had displayed some challenging behaviours prior to his hospital admission in February 2022, but he had not displayed such behaviours in his current nursing home.
28. The IRP noted Mr O described Mr G as constantly trying to mobilise. He said the home had moved Mr G to the ground floor because of this. The IRP acknowledged Mr G’s behaviour did occasionally change, saying this appeared to be linked to when he had urinary tract infections. It said this was treated. It also said Mr G did not need one-to-one care for his behaviour during the period under consideration.
29. The NHS’s DST guidance document gives the following descriptor for low needs in this domain:
‘Some incidents of ‘challenging’ behaviour. A risk assessment indicates that the behaviour does not pose a risk to self, others or property or create a barrier to intervention. The individual is compliant with all aspects of their care.’
30. Its descriptor for high says:
‘Challenging’ behaviour of type and/or frequency that poses a predictable risk to self, others or property. The risk assessment indicates that planned interventions are effective in minimising but not always eliminating risks. Compliance is variable but usually responsive to planned interventions.’
31. We have not seen evidence Mr G needed skilled intervention for his behaviour, such as registered nurse support or continual one-to-one care for the period under consideration. We can see he had some falls during this period. We can also see he was described as being aggressive. The records clearly demonstrate Mr G often tried to mobilise and did not understand the risk of falling.
32. The records do not indicate the ICB needed to change Mr G’s care plan after he was discharged from hospital. Mr G was often resistant to care or very aggressive in the months before being admitted to, and when in, hospital in February 2019. But the records do not indicate this behaviour continued with the same level of frequency once he entered the nursing home in March 2019. These were isolated incidents.
33. The records show Mr G was at high risk of falls, but this was a known factor for which the ICB did not need to provide specialist care for this or for his cognitive difficulties. The records do not indicate he was likely to cause risk to others, to property, or show there were any significant barriers to its interventions.
34. Mr G’s falls and behaviour were undoubtedly distressing for his family to witness. We understand why the ICB’s decision to reduce its weighting from ‘high’ to ‘low’ for this domain caused Mr O concern, and why he does not believe the IRP should have upheld this weighting. The DST document says the ‘level of support and skill required to manage risks associated with challenging behaviour helps determine’ this domain’s weighting (page 9). We have not seen evidence Mr G needed or received such care.
35. We have not seen strong evidence which indicates the IRP got something wrong when it considered this domain. We can see it discussed Mr G’s behaviour needs in detail. It also reviewed the medical documentation and took the view of medical experts. It recorded his needs in this domain (IRP, pages 12 and 13). We think the IRP made its decision about Mr G’s behaviour needs in line with the National Framework.
Did the IRP adequately consider and explain 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.
37. 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’.
38. Paragraph 59 says that 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.
39. We can see the IRP’s decision presents and summarises the conclusions of the clinically led discussion. We know Mr O disagrees with its conclusions. We can see the IRP report details the discussions around the four key indicators. It shows their interrelationship and impact on Mr G’s daily care needs. This is identified in the clinical evidence. It shows how the care home managed Mr G’s needs. The IRP concluded that his needs were at a level which could be met by a local authority.
40. Therefore, we are satisfied there are no failings in this part of the IRP’s process and consider that it reached its decision in line with the National Framework.
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
41. Mr O disagrees with the IRP’s rationale in the four key indicators. He says the IRP did not consider sufficiently the interaction of his father’s needs or how challenging they were to manage. It says the IRP did not detail the frequency of interventions the care home made for his father, which he says were repeated and prolonged. He says Mr G’s needs were unpredictable, as shown by how often he fell.
Nature
42. 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’.
43. 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 what Mr G’s needs were and how they were met. The IRP described the nature of his condition well. We can see it described his aggressive behaviour before and during his hospital stay of February 2019 and how care staff had previously found this challenging. It explained his mobility, nutrition and skin problems and the support Mr G needed for these. It noted his condition was progressive.
44. We can see it looked at the care plans, which suggested his care could be provided routinely by the care staff. We have seen no evidence in the medical records which indicate the IRP was incorrect to say Mr G’s daily living needs were not met or that he needed interventions outside of his planned care.
45. The records presented were clear and detailed, allowing the IRP to make the decision. We think the IRP met the requirements of the National Framework when considering the nature of Mr G’s needs.
Intensity
46. 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’)’.
47. Mr O says his father was regularly noted to present with repetitive behaviour and needed repeated and/or prolonged interventions. This was particularly the case with Mr G’s attempts to stand and mobilise.
48. We can see the IRP looked at the right things. It described how the care and help Mr G needed was in line with care plans. These plans did not need frequent amendments. The IRP mentioned how care staff could give planned routine care without needing more than one carer, except when they were helping Mr G to mobilise. The IRP said the records showed Mr G usually slept well, his pressure areas remained intact, and he was not referred to either speech and language services or the tissue viability service for assessment.
49. The IRP also said Mr G’s behaviours had settled after he had been discharged from hospital. We have not seen indication in the records Mr G’s repetitive behaviour led to prolonged interventions or required a more significant management of his falls risk. His falls risk assessment and plan was not amended. The IRP noted the ICB delivered his care in line with his care plans.
50. We can see the IRP looked at the right things. It considered whether Mr G needed one to one care and noted there were no sudden changes to his care plans in the period it was reviewing. We understand Mr O has a different view about how long interventions with his father took. We can see the IRP checked the evidence. It could not see that specific monitoring, skilled response or additional expertise was required to meet Mr G’s needs. We think the IRP met the requirements of the National Framework when considering the intensity characteristic.
Complexity
51. 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.’
52. Mr O says the IRP recognised his father’s previous care homes had found Mr G hard to manage. He says the IRP wrongly indicated his father did not need one to one care which is not a requirement of the complexity characteristic.
53. The IRP said in the period under consideration Mr G’s care was not seen as hard to manage. It said his needs were not difficult to anticipate or meet during this time. It said Mr G was cooperative with his care but needed occasional reassurance.
54. Mr G correctly says the number of carers is not mentioned by the National Framework regarding this characteristic. It does say IRPs should consider how difficult it is to manage the need (National Framework, page 97) and number of carers required could be an indication of the level of severity. However, we can see the IRP’s reference to one to one care in its report is simply the IRP noting what the ICB told it. It also reported the family’s views, so we can see it rightly took the views of all participants at the meeting.
55. The IRP considered what we would expect. It saw Mr G’s care did not need a higher level of knowledge or skill to manage. We cannot see it incorrectly took into account that he did not need one to one care. The IRP gave the level of detail we would expect in the complexity indicator. We think the IRP met the requirements of the National Framework when considering the complexity characteristic.
Unpredictability
56. 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’.
57. Mr O says his father’s regular falls show those caring for him were not able to predict his needs or prevent him from coming to harm. He says the IRP’s view was contrary to the evidence. The IRP said Mr G settled into his new home in March 2019 and his condition stabilised. It said there was no evidence of fluctuating symptoms and so not a level of unpredictability associated with a primary health need.
58. Mr G’s falls risk assessment shows he was high risk in this area. The records show Mr G’s GP said there was little that could be done to minimise his falls risk. Eligibility for CHC is based on the needs that arise from a condition, not the condition itself. A key piece of evidence here is that Mr G’s care plans remained relevant and did not need frequent or sudden changes. This shows that carers could plan for meeting his needs, including his falls risk. He may have needed more care at certain times that others, but this did not mean his needs were unpredictable.
59. We can see the IRP considered the case file, the family’s views, and the views of medical experts. The IRP clearly described why Mr G’s needs were not unpredictable. We are satisfied there are no failings in how IRP considered the four key indicators. We think it acted in line with the National Framework. The IRP explained its rationale for its decision on the key characteristics in detail.
60. 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 clinically unsound. It explained in detail how it weighed up all the evidence, including Mr O’s views and came to its decision. When we weigh the evidence, we cannot see the IRP got something wrong in how it applied the National Framework and made its decision.