15. To help us reach a decision, we have carefully considered the information Mrs O provided, alongside the evidence the IRP considered.
16. For reference, CHC describes care provided over an extended period of time to meet physical or mental health needs arising as a result of disability, accident or illness. If someone meets the criteria to receive CHC funding, the NHS will fund their care.
17. The purpose of the IRP is to review the procedures the CCG followed in considering a person’s eligibility for CHC. In reaching a view about whether the CCG followed the correct process and correctly applied the eligibility criteria, the IRP could recommend the CCG reconsider the case to address any faults identified in the process, or it could reach a view as to whether the individual should or should not be considered to have a primary health need.
18. Whether an individual is eligible for CHC is a discretionary decision. It is our role to decide whether the IRP made its decisions in line with the National Framework. We consider whether in reaching its decision it took account of all the relevant information provided to it.
19. 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. Someone else having a different opinion does not mean there must have been a fault in the decision-making process.
20. To help us reach a robust decision, we look at whether the IRP considered all the relevant information when determining CHC eligibility. To allow us to do this, we consider four key areas. We will explain each one in turn.
Did the IRP establish all the appropriate and relevant clinical facts?
21. Paragraph 199 of the National Framework says, ‘The key elements involved in considering requests for independent reviews of CHC eligibility include: scrutiny of all available and appropriate evidence’.
22. To start, we reviewed all the information NHSE provided, including the IRP report and the IRP file. Those include the relevant clinical and care documents. We have also reviewed the information Mrs O provided to us.
23. Based on the information NHSE provided, we can see the IRP considered the following:
• the CCG’s file • DST 2014 • NPD • DST 2017 • GP records • nursing home records • evidence Mrs O provided to the IRP • Mrs R’s medical history.
24. The IRP’s report demonstrates it considered all the evidence made available to it and refers to it throughout the report.
25. From viewing the IRP notes, we can see it had discussions with Mrs O and her brother, Mr R. The IRP discussed the views of the family and the CCG for each domain and key characteristic. It heard their views on Mrs R’s health, wellbeing and the care she needed to keep her safe and well. This is well evidenced throughout the report.
26. The IRP report demonstrates it considered all the evidence made available to it. There are no obvious omissions in the IRP’s consideration of Mrs R’s eligibility for NHS CHC funding. We have not seen any signs of failings in this part of the IRP’s consideration.
Before it made its decision, did the IRP consider all the relevant evidence?
27. Paragraph 200 of the National Framework sets out the following points.
‘NHS England is responsible for convening independent review panels consisting of:
• An independent chair (appointed by NHS England) • A CCG representative; and • A local authority Social Services representative.’
28. We can see the following individuals were present at the meeting:
• an independent chair • a local authority representative • a clinical adviser • a CCG representative.
29. As the IRP membership was in line with the National Framework, we consider NHSE had an appropriately constituted panel.
30. From viewing the IRP report and notes, we see it worked through and discussed each of the care domains in turn and in detail with Mrs O and her brother. It listened to their submissions for each domain, asked additional questions and sought their opinions. It also had Mrs O’s written appeal documents available.
31. For reference, there are twelve care domains in the DST stage of the CHC assessment. An assessment is made against each domain and awarded a level of need depending upon the issues the subject presents with.
32. We can see Mrs O disputed the mobility domain and felt this should be severe rather than high, which was the weighting both the CCG and IRP determined was suitable.
33. The IRP recorded the clinical reasons as to why it had chosen the domain weightings. Throughout the report and the IRP’s considerations, it refers to the available evidence from the IRP file where possible.
34. We can also see from the IRP report the panel had a clinically led discussion around the key clinical facts. The report shows how the IRP considered the evidence during its decision-making process. We have seen no evidence to suggest the panel overlooked, marginalised or did not adequately consider any facts during the IRP process.
35. The IRP explained the evidence it used to inform its decision-making. The IRP explained the reasons for its views on the levels of need for each of the domains. For this reason, we have seen no signs of failings in this part of the IRP process.
36. We do not wish to take away from Mrs O’s account or her view of her mother’s needs and what was needed to manage them.
Did the IRP clearly explain how it had reached its decisions?
37. Paragraph 150 of the National Framework sets out the following:
‘Where an MDT [multidisciplinary team] recommends an individual is not eligible for NHS Continuing Healthcare, a clear rationale that considers the four key characteristics must still be provided. This must be based on the primary health need test’.
38. The IRP report demonstrates a discussion and consideration of the four key characteristics (nature, complexity, intensity and unpredictability) took place. We can see the IRP considered all the available evidence, and it often referred to the material evidence provided.
39. The IRP concluded its consideration of the four key characteristics did not result in the finding that there was a primary health need. The IRP looked at the totality of Mrs R’s needs and felt they were at a level that could be met by a local authority.
40. Upon review of the evidence available to us, such as care home records, GP records and various referrals, we consider the IRP’s rationale is consistent with Mrs R’s records and the descriptors of the four key characteristics. This is in line with the National Framework. We cover the IRP’s specific considerations in further detail below.
Did the IRP apply the appropriate eligibility tests?
41. 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’.
42. We have considered whether the IRP’s decisions and rationale about the four key characteristics were accurate. We will consider each key indicator in turn.
Nature
43. ‘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’.
44. Paragraph 3.3 of the National Framework sets out the following questions to address when considering this need:
• 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?
45. Mrs O did not have any specific comments to make in relation to the nature characteristic.
46. There is no evidence to suggest caring for Mrs R was problematic. Professionals familiar with her needs carried out the care she needed. There is no evidence Mrs R’s needs drastically changed throughout the review period, and there was frequent contact with local authority services (mainly Mrs R’s GP) when needed.
47. From viewing the information made available to the IRP, we can see the IRP report includes the level of detail we would expect. The IRP acknowledged the clinical needs and interventions needed to support Mrs R, including any practical support.
48. Its decision on the nature indicator presents a full view of Mrs R’s needs by explaining what they were, and the monitoring and actions needed in each domain to maintain her wellbeing. The IRP acknowledged NHS commissioned services were meeting Mrs R’s needs, with no specialist interventions required.
49. We have seen no signs of failings in the IRP’s reasoning that Mrs R did not have an overall high level of need in this key characteristic.
Intensity
50. ‘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”)’.
51. Paragraph 3.4 of the National Framework sets out the following questions to address when considering this need:
• 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?
52. Mrs O made no specific comments in relation to the intensity characteristic.
53. We have reviewed the information available to the IRP. This correlated with the IRP report. We are satisfied there was no evidence to suggest Mrs R’s needs required intense input to manage. While it is obvious Mrs R needed constant assistance from the carers and the local authority to maintain her health and wellbeing, they were providing appropriate care without any difficulty.
54. There is no evidence to suggest the carers found Mrs R difficult to care for.
55. Mrs R did not need overly frequent checks, and she did not need lengthy interventions. There is nothing to suggest she could not be cared for effectively. Appropriate care plans were in place, and she did not need constant, one-to-one care.
56. Given the above, we do not consider there to be any signs of failings in the IRP’s decision about the intensity of Mrs R’s needs. The IRP’s reasoning is supported by the records and in line with the National Framework.
Complexity
57. 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. Complexity may arise with a single condition and can include the presence of multiple conditions or the interaction(s) of two or more conditions. It may also include situations where an individual’s response to their own condition affects their overall needs, such as where a physical health need results in the individual developing a mental health need.
58. Paragraph 3.5 of the National Framework sets out the following questions to address 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?
59. Mrs O gave no specific comments in relation to the complexity characteristic.
60. The IRP acknowledged there were interactions between various domains, but this did not suggest the interactions were so complex they were difficult to control or manage. It acknowledged Mrs R’s needs were responded to appropriately and with no difficulty.
61. We have seen there was no need for any specialist input or knowledge to care for Mrs R above what the local authority could provide. Mrs R’s GP and registered general nurses provided input.
62. Her care plans were reviewed frequently, but there is no evidence the carers or the NHS services could not successfully care for Mrs R, and her needs could be anticipated. No specialist skills were required to maintain Mrs R’s health and wellbeing.
63. There is no evidence the staff found Mrs R difficult or problematic to care for due to any interactions between her needs. We are satisfied with the IRP’s considerations when assessing the complexity indicator. They were in line with the National Framework, and the available records and documentation supported the IRP’s reasoning.
Unpredictability
64. ‘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’.
65. Paragraph 3.6 of the National Framework sets out the following questions to address when considering this need:
• Is the individual or those who support them 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 unstable?
• What happens if the need is not 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?
66. Mrs O did not provide any specific comments in relation to the unpredictability characteristic.
67. We have considered the evidence made available to the IRP. We are satisfied there was no evidence to suggest carers had to depart from the care plans once they had been updated. This demonstrates they had considered what care Mrs R required. The carers and the local authority were aware of Mrs R’s needs and could predict what care was needed.
68. We have seen no evidence of any sudden changes in Mrs R’s needs or her care needing to be drastically amended at short notice. Throughout the review period, there was an expected, gradual decline in Mrs R’s health. The professionals with input in Mrs R’s needs were aware of the interventions and the care she needed, and they were able to plan how to manage them.
69. Throughout the review period, Mrs R’s care plans were frequently reviewed. She was receiving support from the appropriate services, and this did not present a challenge. The IRP considered Mrs R’s needs both individually and interactively.
70. No specialist knowledge or intervention was needed to care for Mrs R or meet her needs above what the local authority could provide. Her needs were adequately addressed.
71. Given the above, we do not consider there to be any signs of failings in the IRP’s decision about unpredictability for Mrs R. The IRP’s reasoning is supported by the records and in line with the National Framework.
Procedural issues
72. Our role is to look at how NHSE considered Mrs O’s concerns, not the actions of the CCG directly. This is because we would expect the IRP to have acknowledged any CCG errors, considered the effect and made recommendations where needed.
Lack of CHC assessments
73. Mrs O says no CHC assessment was carried out from 2009 to 2013. The IRP said they cannot consider this, at is it outside the period under review.
74. While we understand the stress this point has caused Mrs O, we would not expect the IRP to answer this point, as it is well outside the review period it is considering. Mrs O may be able to refer this back to the CCG and ask it to review this period retrospectively. As advised by the CCG in the IRP notes, it may be difficult to obtain an answer to this point due to it being so long ago. The CHC process has changed significantly since 2009.
DST
75. Mrs O says there was no local authority representation at the DST held on 9 June 2014. From viewing the available appeal documentation, this was not raised with the IRP. As such, we are unable to comment on the IRP’s consideration of this complaint point, but Mrs O can refer this point back to the CCG.
Mobility domain
76. Mrs O complained Mrs R’s mobility had been recorded as severe during the DST meeting then changed to high after it ended.
77. During the IRP meeting, the CCG explained it could only conclude the severe weighting had been recorded due to human error.
78. The IRP said it would not be addressing this complaint point. While it may have been preferable for the IRP to comment on this point, this would not have changed the IRP’s eligibility decision or our view on this case. We do appreciate this must be frustrating for Mrs O, and we do not wish to take away from that.
Conclusion
79. We recognise Mrs O’s account and that she disagrees with the IRP’s decision. We do not wish to take away from her account or what she has told us about her mother’s needs.
80. We have found no reason to question the IRP’s decision. There is nothing to suggest the IRP recommendations 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.