3. Mrs N complains about NHSE’s decision not to hold an IRP when considering whether her mother, Mrs T, was eligible for continuing healthcare (CHC) funding for the period of 26 January 2012 to 19 August 2014.
4. Mrs N tells us she has been prevented from having a full IRP hearing and has been denied the potential refund of substantial care home fees.
5. Mrs N would like NHSE to reconsider its decision.
6. Mrs T went to a nursing home in August 2011 where she stayed until she passed away on in August 2014.
7. Mrs N’s representative informed us they received a draft Needs Portrayal document (NPD – a document summarising a person’s needs) from Arden and Greater East Midlands Commissioning Support Unit (CSU) with a request to provide further comments on 27 September 2016. This NPD covered the period from 26 January 2012 to 31 March 2013.
8. The NPD confirmed that no referral for a full assessment was recommended at the time.
11. Before we explain our decision, we will outline how we look at complaints like this.
12. NHSE guidance says an individual receiving care, or their representative, may apply for an IRP to review a CCG’s decision to decline funding. Whether an individual has a primary health need and is eligible for NHS CHC funding is a discretionary decision (a decision based on reason, judgement and opinion).
13. It is our role to review the available evidence to decide whether decisions were made in line with the National Framework. The National Framework says NHSE can decide not to hold an IRP if the individual falls well outside the eligibility criteria, or where the case is very clearly not appropriate for the IRP to consider. We cannot question discretionary decisions when they have been made without maladministration (fault).
14. We can only uphold a complaint about a decision not to hold an IRP if there is some specific fault in the way NHSE reached the decision. Such decisions are based on clinical judgements and opinions.
15. Paragraph 206 of the National Framework says:
16. ‘NHS England does have the right to decide in any individual case not to convene an independent review panel. It is expected that such a decision will be confined to those cases where the individual falls well outside the eligibility criteria, as set out in the standing rules, or where the case is very clearly not appropriate for the independent review panel to consider (see Annex D)’.
17. The eligibility criteria, or four key characteristics, is the consideration of the nature, intensity, complexity and unpredictability of a person’s needs. In line with the National Framework, we would only expect NHSE to look at the eligibility criteria when deciding whether to hold an IRP, and not the care domains or concerns the applicant may have about the CCG or CSU’s process.
18. We have reviewed the evidence NHSE’s independent review (IR) considered. This includes continuing healthcare assessments, care home records, GP records, social services records, hospital records, the request for an IRP questionnaire as completed by Mrs N, applicants’ letters to NHSE, decision/rationale letters provided by the CCG and minutes of the local resolution meeting.
19. The National Framework paragraph 206 says, ‘Before taking such a decision, NHS England should seek the advice of an independent review chair who may require independent clinical advice. In such cases where a decision not to convene an independent review panel is made the individual, their family or carer should receive a clear written explanation of the basis for this decision’.
20. We can see in the report that an independent chair and a clinical adviser were involved in the review. This is in line with the above guidance.
21. The report says it provides an explanation for why it has decided not to hold an IRP. The report says it gives a brief summary of its findings. We are satisfied the report gives a clear, written explanation of its decision. We will explain why in considering each of the four key characteristics below.
22. Paragraph 124 of the National Framework sets out the following:
‘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’.
Nature
23. ‘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’.
24. 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?’.
25. The report refers to Mrs T’s extensive medical history. The report also notes that Mrs T had instances of challenging behaviour, particularly when resisting personal care. The report describes how staff would retreat and return to give medication before she would calm down. The report notes there is no clear evidence of how often this would happen.
26. The report also notes Mrs T had a high level of cognitive impairment and relied on carers to assess and protect her from risk. There were also some communication difficulties as Mrs T would sometimes speak in [language]. The report notes there was no documented fall in the claim period.
27. The report describes how Mrs T needed help with feeding in the later stages of the period but was eating well at the earlier stages. Initially she was able to mobilise with the assistance of two carers and a wheelchair for distance. The report describes how Mrs T needed pads to manage her urinary incontinence and was regularly toileted. She was also prescribed medication to manage constipation and a number of urinary tract infections (UTI). Mrs T was also at risk of skin breakdown and required carers to apply creams.
28. The report also notes that Mrs T had asthma and needed inhalers. She was reliant on staff to give her medication and was occasionally noncompliant (would not take the medicine), which meant staff had to give medication secretly. Mrs T had a vitamin deficiency and needed three monthly B12 injections. The report notes that although Mrs T had some loss of consciousness in 2011, this did not happen in the enquiry period.
29. In Mrs N’s representative’s very detailed complaint letter he describes Mrs T’s condition as having a high level of aggression towards staff due to her dementia and cognitive impairment. The letter also describes how Mrs T was at risk of choking due to putting a hearing aid in her mouth. The letter also says that Mrs T was on many medications such as antidepressants, sedatives and pain relief, as well as antibiotics for UTIs and chest infections. She also had skin conditions and needed creams. He describes that Mrs T would scratch at her skin and refuse to comply with medication and was at risk of falls due to her cognitive impairment.
30. Mrs N’s representative described that Mrs T needed help to mobilise, and required a hoist for all transfers and use of bed rails. She was also at risk of pressure sores. Mrs T had a soft diet that needed supervision and assistance to eat. She also had a prescription for dietary supplements.
31. We have reviewed the available evidence. The records show that Mrs T needed help with all her daily activities such as personal care, mobilising and continence management. Mrs T needed pads to be worn to manage incontinence and her skin was monitored for pressure sores.
32. The records show that she often spoke in [language] which affected her ability to communicate with staff. She also needed staff to administer all medications, including antibiotics and she received vitamin B12 injections every three months. The records show Mrs T could have challenging behaviours, which would require staff to return and retreat, and sometimes move Mrs T away from other residents. There is no evidence that this meant her care could not be given.
33. We can see that Mrs T needed help with all her care needs, but this was not at the level that would be considered beyond what a care home should provide. This is because care home staff are expected to care for personal needs, even if required on a 24-hour basis and to get input as and when needed from a GP or district nurse.
34. We have seen no signs NHSE missed evidence or did not consider it properly. We have not seen evidence of where specialist input was needed to meet every day personal care, or that the time needed to address needs was beyond what can be provided in a care home.
Intensity
35. ‘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’)’.
36. 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?’.
37. The report says that Mrs T was dependent on staff to manage her daily living to keep her safe. She needed one or two carers for personal hygiene, support and mobility. The report also describes how she was later bedbound and needed positional changes with two carers and a hoist when necessary. Carers were also helping with continence and skin care. The report states that there was no evidence of frequent and lengthy interventions, all of which were managed routinely.
38. The IR set out that the level of skill required to manage and monitor Mrs T was well within the level that would have been expected in giving fundamental care and assistance.
39. Mrs N’s representative describes how Mrs T would have a poor appetite on occasion and needed help from staff. He describes how Mrs T would need advice from a dietician and dietary supplements and tells us that Mrs T needed staff to give and monitor all medication and she could be noncompliant with this. She also showed challenging behaviours. Mrs T had a history of depression, mood disorder and dementia. Mrs T had poor mobility and a high risk of pressure sores.
40. The records show that Mrs T needed carers for her everyday personal care and had difficulties in communicating her needs. There was also interaction over several care domains. The care plans show that Mrs T needed help from one to two carers for all her care needs. She could also be resistant to this care, however staff were able to manage this using retreat and return. The records state that a prescription of lorazepam (used to treat anxiety) was to be given if necessary.
41. The records show that some outside input was needed from GP and district nurses when needed. However, the evidence does not suggest that the level of care required specialist input, or that it went beyond what could be managed in the care home.
Complexity
42. Complexity 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’.
43. Paragraph 3.5 of the National Framework sets out the following questions to consider when considering this need:
• 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?
44. The report describes how Mrs T was unaware of risks to herself or others and was at risk of fall injury due to her poor bone density. She was highly cognitively impaired, which affected her ability to communicate her needs reliably or effectively. The report notes that it also affected her ability to cooperate with the administration of her medication and understand why it was needed. She could be argumentative or aggressive, but there was no evidence of ongoing mental health issues that needed intervention. The IR set out that there is no evidence that an increased level of skilled staff was needed. Her condition did not create a barrier to providing the necessary care.
45. Mrs N’s representative describes how Mrs T’s declining mental state had an impact on her daily activities, and her communication was also affected. He tells us that Mrs N’s dementia was made worse by her depression and anxiety. She could show challenging behaviours, which meant it was difficult for staff to deliver care. He also notes that Mrs T had fractures as a result of falls, and was in pain and her skin integrity was compromised by her poor diet and incontinence.
46. As we have said, the evidence shows there was input from GP’s and district nurses. In particular when Mrs T would have a UTI or chest infection, and would need antibiotics. Staff were also required to get input if they became concerned about Mrs T’s skin integrity. We have not seen in the evidence that it was difficult for the care home staff to meet the care plans made by the district nurses, or to start the treatments provided by the GP.
47. The records show that Mrs T needed carers for all her personal needs. We have not seen that the care home was unable to meet these needs, or that more specialist care was needed. We recognise that Mrs T could sometimes be resistant to care, but this was not to the extent where it was not able to be managed by care home staff.
48. For these reasons, we think the IR looked at this indicator appropriately and did not miss evidence that suggested a complexity of need.
Unpredictability
49. ‘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’.
50. 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 stable?
• 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?’.
51. The report tells us that due to the familiarity of staff with Mrs T they were able to anticipate her needs as they arose. Her needs did not fluctuate. The report does note that her needs changed when she became bedbound and her risk of mobility and behaviour reduced.
52. The report describes how Mrs T needed her medication to be given secretly to stop her condition deteriorating further. Qualified staff would have needed to assess, plan, intervene and evaluate. The report says that appropriate care plans and risk assessments were in place.
53. Mrs N’s representative tells us that Mrs T’s needs changed, as did the care needed to meet them. He also notes that Mrs T was resistant to care due to her cognitive decline.
54. We have considered the available evidence. We have not seen evidence of rapidly changing needs, or changes being made to care plans as a result. We recognise that Mrs T’s needs changed when she became immobile, however apart from this her condition stayed mainly the same throughout the period. The care home was able to anticipate the needs and although this was achieved by continual monitoring, this would be expected when 24-hour care is given by a care home.
55. We do not think NHSE failed to consider this indicator appropriately or that it missed evidence suggesting unpredictability.
56. The evidence suggests Mrs T’s needs were not of a nature, complexity, intensity, or unpredictability to indicate a primary health need, that carers could not care for within routine social care. Therefore, NHSE acted appropriately in not holding an IRP meeting in line with the National Framework guidance.
57. We understand the continuing healthcare process can be upsetting and stressful for the family involved. We appreciate the time and effort Mrs N has put into pursuing her complaint and hope we have explained our decision clearly.
1. We have carefully considered Mrs N’s complaint about NHS England (NHSE). We appreciate the effort she has made to make her complaint, and we have kept this in mind when considering her complaint.
2. We consider NHSE’s decision not to hold an Independent Review Panel (IRP) was in line with national guidance.