15. Before we decide whether we should conduct a detailed investigation of 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 have not found any signs something has gone wrong. We explain in further detail below.
Procedural issues
16. Mr O complains the IRP did not explain why the two MDT reviews said his father was eligible but the CCG said he was ineligible. He says the evidence the IRP used was exactly the same as the evidence the MDTs used, but it came to a different decision. He says the IRP came to a decision using four-year-old evidence during a Zoom meeting without meeting his father. He said this does not follow the National Framework’s requirement of a ‘person-centred approach’. He says the IRP should have got evidence from the MDT chairs to consider as part of the independent review. He says the National Framework says ‘only in exceptional circumstances, and for clearly articulated reasons, should the MDT’s recommendations not be followed’.
17. He says the IRP’s recommendation to the CCG to proofread documentation was disgraceful and an insult, considering the number of procedural errors the CCG had made. He says the IRP did not address the failure of the CCG to follow the National Framework in any way.
18. The National Framework (paragraph 147) sets out that the IRP’s role is to review the CCG’s eligibility decisions and to consider any procedural issues. This is important because any procedural issues could have an effect on the end decision. It is also the IRP’s role to make sure the CCG has acted in line with the National Framework. The IRP will make a new decision and consider a lot more documentary evidence, whereas an assessor at an MDT will only consider the paperwork available at that time.
19. We can see from the IRP report that the IRP meeting included extensive discussions about the CCG’s procedural errors. The IRP said it was very concerned to hear about the process the family had been through and how on two occasions the MDT had recommended Mr W was eligible before the CCG informed the family it had overturned that decision. The IRP said its view was the CCG poorly explained its process to the family. It also said the CCG document relating to the local review meeting in May 2018 was poorly written.
20. We can see the CCG apologised to Mr O during the IRP meeting for the poor communication systems, the delays in the process, its poor rationale and its illogical process. It said it had made service improvements to its processes since hearing about Mr W’s case. It gave the IRP a review of eligibility document dated February 2020. The IRP said this was well written and may demonstrate the CCG’s point that its systems are now much improved.
21. We understand Mr O says this eligibility document dated February 2020 contained factual errors and the IRP did not consider those errors. When we review what Mr O raised with the IRP, this aspect was not part of his submission. Our role is to look at how the IRP considered the concerns he raised with it, so we cannot comment on this further.
22. We have seen the IRP acted in line with the National Framework as it considered the procedural issues in depth. We can see the IRP decided the CCG had not acted in line with the National Framework in terms of its processes. We appreciate Mr O’s frustration that the IRP’s only recommendation was to proofread documentation. When we review the report, we can see the IRP found fault not only with the CCG’s documentation but also with its entire process. As the CCG had apologised to the family, explained it had made service improvements and submitted a further review, the IRP felt it had done what it needed to do to put things right. It fulfilled its role to make sure the CCG took appropriate action when it made procedural mistakes. We can see the proofreading of documentation was not the only thing it felt the CCG got wrong, but it was the outstanding action the IRP thought the CCG needed to take. We note Mr O wanted an apology and service improvements, and we can see this happened as part of the IRP process.
23. Mr O is correct that the National Framework says the CCG should only depart from the MDT’s recommendations in exceptional circumstances. This applies when the MDT’s decisions are robustly made. We can see from the IRP report the CCG acknowledged its MDT decisions were not robust. This may explain why the IRP came to a different decision to the two MDTs, as it was acting in line with the National Framework.
24. In conclusion, we have not seen any signs the IRP did something wrong when it considered the procedural issues Mr O raised. We have seen it acted in line with the National Framework in making sure the CCG took appropriate action following its mistakes.
Behaviour domain
Did the IRP clearly explain how it had reached its decision?
25. We cannot question discretionary decisions, including decisions about eligibility for NHS CHC funding, unless we find some fault in the way those decisions have been reached. We can only uphold a complaint about a decision on eligibility for NHS CHC if there is a fault in the way the decision is made. Such decisions are based on the individual’s clinical judgements and opinions. Someone else having a different opinion does not mean there must have been a fault in the decision-making process.
26. It is our role to decide whether NHSE’s IRP acted in line with the National Framework when it considered whether Mr W was eligible for CHC.
27. Mr O considered his father’s needs in the behaviour domain were severe. The CCG weighted this domain as high, and the IRP agreed with it.
28. Mr O says there was an obvious mismatch in the behaviour domain between the evidence and the domain weighting.
29. The DST completed for Mr W defines high needs in this domain as: ‘Challenging behaviour that poses a predictable risk to self, other 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’.
30. We can see the IRP had a detailed discussion about Mr W’s behaviour needs. The CCG said there would need to be more evidence of behaviour management plans and risk assessments to justify a severe level of need. The IRP discussed what (if any) ‘prompt and skilled responses’ Mr W needed, as this would demonstrate Mr W’s needs were severe. The family’s representative said Mr W needed a skilled response when he urinated in inappropriate places and when he became aggressive. He also said sometimes male staff had to be used, and all staff would need to be agile and work outside the care plan.
31. The IRP weighed up the family’s concerns about Mr W’s behaviour and considered whether a higher weighting would be appropriate. The IRP explained why it came to the decision of high and not severe. It said Mr W’s behaviour was not so difficult as to need access to outside help via the community mental health team or GP. It said there was no evidence he needed a response beyond the skills which would normally be expected in a care home. It acknowledged, as the family’s representative said, Mr W’s behaviour was challenging and he did pose a significant risk to himself, but these risks did not need an immediate and skilled response. This is consistent with the DST descriptor for high needs.
32. We consider the IRP acted in line with the National Framework when addressing this domain, and we have seen no signs of a failing here.
Four key characteristics
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
33. The IRP also applies an eligibility test in deciding a person’s CHC eligibility. The National Framework separates this test into four key characteristics: nature, intensity, complexity and unpredictability. This test is used to establish whether the quantity or type of a person’s care needs are more than what the local authority can provide. This indicates they have a primary health need, which in turn indicates they are eligible for CHC.
34. The National Framework sets out questions for the IRP to consider in establishing a person’s level of need. They are outlined in ‘Practice Guidance 3: When identifying a primary health need, how should the four key characteristics be approached?’ (PG3). The National Framework is clear the questions it provides are not meant to be strictly applied and are there to guide the IRP’s considerations. We use these questions when we are looking at whether the IRP properly considered the four key characteristics of Mr W’s needs.
35. Mr O has told us he disagrees with the IRP’s consideration of each of the four key characteristics. We can see he gave his view on each key characteristic directly to the IRP, and his views are recorded in the IRP’s report.
Nature
36. The National Framework says this characteristic should ‘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’.
37. Mr O and his representative told the IRP that Mr O had an enlarged prostate, which meant he urinated frequently, sometimes on other residents’ beds. They said the carers found it difficult to look after him despite being in a specialist care home with experienced staff.
38. We can see the IRP considered the nature of Mr W’s needs at a level of detail we would expect to see and with PG3 in mind. The IRP has focused on Mr W’s individual needs rather than any diagnosed medical conditions. It discussed the effect of his needs on his health and wellbeing to establish the level of care needed to keep him safe from harm.
39. The IRP also looked at the types of care Mr W needed to keep himself safe and well. He needed a range of social and healthcare services. He had communication difficulties caused by his dementia, he had falls and he needed assistance with his drug regime and skin problems. His mental state was such that he could be resistant to those trying to help him with his care. The IRP considered Mr O’s comment that the staff struggled to care for him, and it also considered the home did not make a referral to the mental health team for extra support. The IRP discussed that staff at the care home would be expected to flag any issues regarding care. Similarly, the registered nurse would be expected to flag any limitations of their care to the GP. It discussed how those involved did not raise any issues.
40. The IRP acknowledged that Mr W would not have managed without the care staff’s assistance. We can understand how distressing his needs, particularly his urination problems, were for the family. The report shows how the IRP discussed the type of care Mr W needed. It discussed that his needs appeared to be met by staff at the care home and that carers with a higher level of skill were not needed. The IRP weighed everything up before it concluded the nature of his needs was within the remit of the care home.
41. We consider the IRP acted in line with the guidance set out in the National Framework when addressing the nature of Mr W’s needs.
Intensity
42. The National Framework says this characteristic ‘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”).’
43. Mr O’s representative told the IRP that Mr W was prone to UTIs and had intensity of needs in relation to toileting. He said he needed 24-hour care in most of the domains and there was a high level of need in several of them.
44. The IRP recognised that Mr W had a level of need in most of the DST care domains. It discussed how Mr W would know when he needed to go to the toilet but, due to his cognition, he did not know where to go. Mr W needed carers to step in with routine checking as his dementia progressed. It discussed that the care staff knew his requirements and that his needs could be anticipated. He did not need intense interventions or nursing or therapeutic intervention on a daily basis to meet his needs, but he did need a lot of support and supervision, sometimes from two carers. The IRP looked at the daily care records to establish his care interventions did not take a long time or require specialist help.
45. The IRP weighed up all the evidence before it concluded the levels of care and monitoring required in these domains were not severe enough to determine a primary health need.
46. We consider the IRP acted in line with the National Framework when addressing the intensity of Mr W’s needs.
Complexity
47. The National Framework says ‘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’.
48. Mr O’s representative told the IRP several of Mr W’s needs in certain domains interacted with one another, and this added to the complexity of his care, such as in terms of his skin, behaviour, cognition and continence.
49. The IRP report shows how the IRP considered the interaction of various combinations of Mr W’s needs. It acknowledged there were interactions between some domains as the family said. It also considered how difficult it was for the carers to manage Mr W’s needs, and it established he did not need carers with enhanced skills. Although Mr W needed a lot of support and care, it said there was nothing to suggest further complex medical conditions or that extra training, knowledge or skills were needed to care for Mr W.
50. We can see the IRP weighed up all the evidence before it decided this key characteristic did not indicate a primary health need for Mr W. It set out why it thought the level of skill needed to manage the interactions of his needs was not enhanced and none of those interactions posed a significant barrier to the carers looking after him.
Unpredictability
51. The final key characteristic of a person’s level of need is unpredictability. The National Framework defines it as ‘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. An individual with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition’.
52. Mr O’s representative told the IRP that Mr W’s incontinence was unpredictable and staff had to be vigilant. He also became verbally aggressive towards the end of the period of review.
53. The IRP considered this evidence and weighed this up alongside the fact that Mr W’s care plans did not change significantly during the period of review. This is a key piece of evidence showing a person’s needs are stable and not unpredictable. It discussed the care staff could anticipate his needs and provide appropriate interventions with ongoing monitoring. It recognised Mr W did start acting out of character due to his progressing dementia, but the staff knew he was likely to be resistant to some care or become aggressive. They may not have known when he would be like that, but they knew what to do when it happened.
54. We consider the IRP acted in line with the National Framework when addressing the unpredictability of Mr W’s needs.
55. We are satisfied there are no signs of failings in how the IRP considered the four key characteristics of Mr W’s needs. We consider it acted in line with the National Framework. The IRP explained its rationale for its decisions on the key characteristics in detail. We have found no reason to question the decision the IRP reached. There is nothing to suggest the IRP’s conclusions were not based on the evidence or were clinically unsound. It explained in detail how it weighed up all the evidence and came to its decision.
56. When we consider the evidence, we cannot see signs the IRP got something wrong in how it applied the National Framework and made its decisions. We appreciate this was not the decision Mr O and his representative had hoped for, and we recognise the huge amount of time and effort they have put in to make sure Mr W got the right decision. We understand this has been a difficult time, and this process has no doubt added additional stressors on Mr O and his family. We hope our decision clearly explains why we have found the IRP acted in line with the National Framework. For the reasons above, we will not be considering Mr O’s complaint further.