15. It is our role to decide whether NHS England’s IRP made the decision that Mrs M was not eligible for NHS continuing care in line with the National Framework. We cannot question discretionary decisions when they have been made without maladministration (fault). This includes decisions about eligibility for NHS continuing care. We can only uphold a complaint about an eligibility decision if there is some specific fault in the way the IRP reached the decision. Such decisions are based on clinical judgements and opinions.
16. The purpose of the IRP is to review the procedure followed by the CCG in making a decision about a person’s eligibility, or the primary health need decision by the CCG. In reaching a view about whether the CCG followed the correct process and correctly applied the eligibility criteria, the IRP can:
• recommend the CCG should reconsider the case and address any faults identified in the process, or • reach a view on whether the individual should or should not be considered to have a primary health need.
17. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information provided to it in reaching its decision. To help us reach a decision there are four key areas we consider. We will consider each key area below.
Question one: Did the IRP establish all the appropriate and relevant clinical facts?
18. Paragraph 199 of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (2018) sets out the following:
‘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:
• Ms O’s application for an Independent Review (14 February 2021) • CHC checklist • DST (24 August 2020) • CCG outcome letter (27 October 2015) • notice of appeal • appeal meeting notes (24 September 2020) • LRM notes (24 November 2020) • LRM outcome letter (24 November 2020) • care home records • GP records • hospital records • social service records • evidence given during the IRP meeting held on 12 May 2021. It is summarised in the notes of the meeting which are in the annex to the IRP report.
20. We have seen that Ms O and Mr O (Mrs M’s grandson) were present at the IRP. We can see that the Chair asked the representatives for their concerns and to provide further information about Mrs M’s needs. For example, the following references are from the IRP report:
‘During the IRP, [Ms O] commented to the panel that [Mrs M’s] DST summary said that her skin was fragile and required monitoring and preventive intervention’.
‘[Ms O] explained to the panel that [Mrs M’s] behaviour did change. She had a confrontation with another resident, and that was so out of her character’.
21. We consider the family’s views were considered appropriately and that the actions taken were in line with the Framework.
Question two: Before it made its decision, did the IRP have a clinically led discussion about the impact and interaction of the clinical facts?
22. Paragraph 200 of the National Framework sets out the following: ‘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’.
23. These individuals were present at the meeting as well as a clinical adviser.
24. We consider that NHS England appropriately formed a panel in line with the National Framework.
25. Ms O has explained that the family dispute the IRP’s conclusion on the ‘behaviour’ and ‘mobility’ domains.
26. We will consider whether the IRP had a clinically led discussion about the impact and interaction of the clinical facts within these domains below.
Behaviour
27. The family felt that this domain should be weighted as ‘moderate or high’ needs. The IRP concluded low needs in this domain. We spoke to Ms O and she explained that she felt this domain should have been weighted as high.
28. Low needs in this domain are defined as ‘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’.
29. Moderate needs in this domain are defined as ‘“challenging” behaviour that follows a predictable pattern. The risk assessment indicates a pattern of behaviour that can be managed by skilled carers or care workers who are able to maintain a level of behaviour that does not pose a risk to self, others or property. The individual is nearly always compliant with care’.
30. High needs in this domain are defined as ‘“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. During the IRP Ms O explained that Mrs M had undergone neurosurgery which had affected her behaviour. She explained that there were skin infections that caused behavioural problems, and Mrs M was verbally aggressive which was very out of character for her. Ms O told the IRP that Mrs M had been physically violent to another resident, Ms O had to attend a formal meeting, and she was afraid that Mrs M would lose her place at the care home. Mr O supported Ms O’s comments and added that she had mood swings and experienced depression.
32. The CCG noted that there were limited records but it did appear that these were isolated incidents, and that there were not patterns of specific behaviours. That is why it had decided on a low level of need. While the care home records were limited, a second CCG representative stated that if there was significant challenging behaviour, they would expect to see some involvement from a mental health team or behaviour charts being completed, but there is no evidence of that.
33. The IRP concluded that after consideration of the evidence and discussion with the panel, a weighting of low was an accurate depiction of Mrs M’s needs in this domain.
34. We have reviewed the evidence that was made available to the IRP. We have seen that on most days, no problems were reported in the care records. A single assessment process (SAP) community assessment in October 2006 noted that Mrs M continued to have behavioural problems and could be verbally aggressive, but noted that care staff felt her behaviour was manageable and was not causing significant problems for staff or other residents. The council care plan review noted that Mrs M slapped another resident’s face, but this was one isolated incident. The evidence that we have reviewed showed no quick or skilled responses were needed outside of daily supervision and care plans.
35. Our view is that the IRP considered the information provided by the representatives and the CCG in its consideration of this domain. We consider that this a robust consideration and we have not seen any signs of failings in the consideration of Mrs M’s level of needs in the ‘behaviour’ domain.
Mobility
36. The family felt that this domain should be weighed as ‘moderate or high’. The IRP decided this domain should be weighted as low. Ms O said she felt mobility should be weighted as high towards the end of the period, because Mrs M was doubly incontinent, and had broken skin, rashes, rheumatoid arthritis and two hip replacements.
37. Low needs in this domain are defined as ‘Able to weight bear but needs some assistance and/or requires mobility equipment for daily living’.
38. Moderate needs in this domain are defined as ‘Not able to consistently weight bear OR Completely unable to weight bear but is able to assist or cooperate with transfers and/or repositioning. OR In one position (bed or chair) for the majority of time but is able to cooperate and assist carers or care workers. OR at moderate risk of falls (as evidenced in a falls history or risk assessment)’.
39. High needs in this domain are defined as ‘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’.
40. Ms O told the panel she thought this domain should be scored at least as moderate. Ms O sometimes visited Mrs M and saw her using a Zimmer frame. She explained Mrs M had osteoporosis and previous hip replacements, which would have affected her mobility.
41. The IRP decided this domain should be weighted as low. When asked about the reason for its domain weighting, the CCG representative explained to the IRP that in 2005 Mrs M was mobile with no walking aids and there had been no recorded falls. The CCG considered the family’s comments but felt that, even with some mobility equipment, the weighting would still fall within a low weighting.
42. We have noted that the records from the care home are limited. We have seen in the records that there were times when Mrs M needed help to walk. The 2006 social services records recognised that she was independent in transfers. A September 2005 social services review noted she was mobile without aids. An April 2007 assessment for emergency surgical admissions noted that she needed help with transfers. The records are limited, but from our review we have not seen that mobility aids or hoists were needed. Ms O mentions that Mrs M sometimes used a Zimmer frame. This fits with the definition of low needs as needing mobility equipment for daily living.
43. Our view is that the IRP considered the information provided by the family and the CCG in its consideration of this domain. We have not seen any signs of failings in the IRP’s consideration of Mrs M’s mobility needs.
Question three: did the IRP’s final decision properly consider and explain the conclusions of the clinically led discussion?
44. Paragraph 150 of the National Framework says, ‘Where an MDT 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, as set out in paragraph 58’.
45. The IRP report shows a discussion and consideration of the four key characteristics (nature, complexity, intensity and unpredictability). We can see the IRP considered all the available evidence including the family’s submissions. We recognise that not all the evidence is available but the IRP has considered what it was able to find.
46. The IRP considered the four key characteristics and did not find a primary health need. The IRP looked at the totality of Mrs M’s needs and decided that her needs were at a level that did not suggest a primary health need.
47. We have looked at the available evidence including the daily care records, GP and hospital records. We consider the IRP’s decision-making is consistent with Mrs M’s records and the domain descriptions in the National Framework.
Question four: Did the IRP apply the appropriate eligibility tests?
48. Paragraph 124 of the National Framework says, ‘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
49. Section 3.9 of the practice guidance in the National Framework describes nature as ‘the characteristics of both the individual’s needs and the interventions required to meet those needs’. In the IRP’s consideration of nature we would expect to see analysis of, ‘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’.
50. In this case, the IRP noted that Mrs M had needs in ten out of the 12 care domains. She had no severe levels of need. The IRP explained that a primary health need is not about the reason why an individual needs care or support, but about the totality of needs. The IRP explained that the notes from the care home did not change from one day to the next. The IRP found that most of Mrs M’s care needs were at a low level, which suggests non-complex needs that were successfully met by the care home following a planned programme of care. Mrs M needed support and assistance in her daily living to keep her safe. She needed support with her nutrition and, while she was independently mobile, she did have a history of falls. The IRP agreed that because of her level of cognitive impairment, as well as her confusion and memory loss, she needed to be reminded about where she was. She did have some understanding of her care needs, but her needs were met effectively in the care home.
51. 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?’.
52. We reviewed the information the IRP had. We can see that the IRP considered the nature of Mrs M’s needs, and the type of intervention that would typically be needed to manage these needs. We can also see that the IRP considered the totality of her needs to reach its decision.
53. The IRP concluded that the quality of interventions needed to manage Mrs M’s needs were not over and above what the local authority could provide, with support of other services such as a GP. Mrs M’s care needs were delivered in response to a planned programme of care and were mainly to meet her daily living needs.
Intensity
54. Intensity is about how severe an individual’s needs are, how they need to be managed and whether the needed care crosses domains. Section 3.9 of the National Framework practice guidance describes intensity as,
‘the quantity, severity and continuity of needs’. We would expect the IRP to have looked at, ‘Both 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)’.
55. The IRP concluded that Mrs M had a range of needs which required support. While the IRP noted that there were limited care home records, these records together with GP records and social services assessment records gave a reasonable picture of her care needs. The panel found that most of Mrs M’s needs were at a low level, meaning that she needed only general care interventions to meet her needs. The IRP found no evidence in the records or in the family submissions to show any significant ‘sustained’ or ‘intense’ needs that would suggest a primary health need.
56. Having reviewed the information that was made available to the IRP, we are satisfied it has reviewed this key indicator fully. Mrs M did not need long or complex interventions and her needs were not persistent or intense. There was little input from external health professionals apart from her GP. The information available to the IRP supports its decision that Mrs M’s health needs were not intense and did not amount to a primary health need.
Complexity
57. Section 3.9 of the National Framework practice guidance describes complexity as, ‘the level of skill/knowledge required to address an individual need or the range of needs and the interface between two or more needs’. In the IRP’s consideration of complexity we would expect it to look at, ‘How the needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s), and/or manage 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’.
58. 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?’.
59. The IRP stated that Mrs M’s health and care needs, including the interactions between those needs, did not show complexity that suggested a primary health need. The IRP noted that she did have some care needs across several domains, which could clearly be seen when exploring the link between her cognitive impairment and her communication abilities. The IRP also noted that she needed prompting and assistance to support her daily needs, including keeping a good diet and good personal hygiene. It noted a clear link between management of her incontinence and looking after her skin integrity. The IRP decided that the interactions between domains did not show any significant complexity suggesting a primary health need. The panel also decided that her care plans did not change month-to-month and her needs could be met by carers following appropriate care plans and interventions, with some input from a GP.
60. From the available evidence we can see that while Mrs M had a range of care needs, these were straightforward and were met with supervision and support from her carers. She did not regularly need long interventions and while there were some incidents of aggression, her needs were met easily. The information available to the IRP supports its decision that Mrs M’s needs were not complex and did not suggest a primary health need.
Unpredictability
61. Section 3.9 of the National Framework practice guidance describes unpredictability as ‘the degree to which the needs fluctuate and thereby create challenges in managing them’. In the IRP’s consideration of unpredictability, we would expect to see that it looked at, ‘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’.
62. The IRP explained that unpredictability is not about anything unexpected ever happening to a person, or the ability to predict every health need. The IRP explained unpredictability is about the degree to which a person’s needs vary, making it difficult to manage them safely and effectively.
63. The IRP decided that Mrs M’s needs were stable from day to day, and there was a gradual decline in her overall condition. The IRP explained that while Mrs M needed timely and appropriate care, the totality of needs was not seen as ‘unpredictable’. The IRP found that Mrs M was in the right environment to manage her needs, and care home staff managed her needs. The IRP found no evidence that specialist services needed to be regularly involved in the care.
64. The records we have seen show Mrs M’s needs were consistent, and care home staff were able to meet the needs with some input from the GP. There were no sudden or critical changes in need. We are satisfied that there are no signs of failings in the IRP’s decision-making process about the unpredictability of Mrs M’s needs.
65. We recognise this has been a long process for Mrs M’s family and we do not intend to take away from their experience or opinion of Mrs M’s needs. We thank Ms O for bringing this complaint to us.