IRP’s decision-making
14. Whether or not an individual is eligible for NHS CHC funding is a discretionary decision. It is our role to decide if the IRP made its decision in line with the National Framework.
15. 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 a specific fault in the way the IRP reached its decision. Such decisions are based on clinical judgements and opinions, and if someone has a different opinion, this does not mean there must have been a fault in the decision-making process.
16. The purpose of the IRP is to review the procedure followed by the Clinical Commissioning Group (CCG) in making a decision about a person’s eligibility. In reaching a view about whether the CCG has followed the correct process and correctly applied the eligibility criteria, the IRP can: • recommend the CCG reconsider the case and address any faults identified in the process or • reach a view as to whether the individual should or should not be considered to have a primary health need.
17. When we look at a complaint about the IRP, we consider whether it took account of all the relevant information it had been given in reaching its decision. To help us reach a decision, we consider four key areas. We also consider any procedural issues raised at the IRP. We have consider each key area below.
Did the IRP get all the relevant evidence?
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. We have reviewed the information given to us in NHSE’s case file, and we can see the IRP had access to the following: • Mrs U’s personal statement, 29 October 2019 • solicitors’ submissions to the IRP, 11 October 2019 • needs portrayal document, 16 May 2018 • DST form and notes of ICB NHS CHC panel, 12 July 2018 • notes of complaint-handling meeting, 6 February 2019 • notes of local review panel, 17 April 2019 • GP records, history and consultations from March 2012 to October 2014 • other medical records • medical administration records (MARs), 26 May 2012 to 9 January 2014 and 30 January 2014 to October 2014 • topical medicines application record, 12 December 2012 to 27 September 2014 • Oxfordshire County Council Review, 10 April 2014 • assessment of capacity, 18 September 2014 • nursing home daily records, 30 March 2012 to 12 October 2014 • other nursing home records, including risk assessments, care plans and reviews, dependency, wound, fluid, weight, position change and core outcomes charts, professional visits and medication notes, various dates from 2012 to September 2014.
20. We also have a copy of the IRP’s report. The report documents what Mrs U said during a video conference.
21. From the evidence, we can see the IRP had access to all the information the ICB used to make its decision in April 2021. It gave Mrs U the opportunity to give oral evidence, and it had access to her and her solicitor’s evidence. The IRP also received Mrs E’s GP, care home and hospital records, which showed her needs during the review period.
22. We can see no obvious omissions in the documents and evidence NHSE considered. We are satisfied there are no signs of a failing in how the IRP established all the appropriate and relevant clinical facts. The IRP had access to information that clearly detailed Mrs E’s needs.
23. We consider the IRP acted in line with paragraph 199 of the National Framework here.
Before it made its decision, did the IRP consider all the relevant evidence?
24. We have looked at the information in the IRP report and considered how the panel discussed all the available evidence when it was weighing up the disputed domains. We can see the IRP considered and discussed Mrs U’s written and oral evidence. This is clearly detailed in the IRP report, which outlines Mrs U’s views on each individual domain and key indicators (also known as the key characteristics).
25. We can see the IRP also considered the information in Mrs E’s medical records. When it explains its weighting for each domain, it refers to specific pieces of information it has taken from the records. We can also see the IRP had the National Framework in mind when it discusses its weighting of each domain and key characteristic. It outlines how it weighted each domain and explains how its weighting is in line with the National Framework.
26. We consider the IRP acted in line with paragraph 199 of the National Framework here.
Did the IRP clearly explain how it reached its decision?
27. Mrs U tells us she disagrees with how the IRP considered three of the domains the health service uses to determine a person’s care needs. We consider these in turn.
Behaviour
28. Mrs U believes her mother’s level of need in this domain was moderate from 30 December 2013 to 5 January 2014 and increased to high from 6 January 2014 to October 2014. The ICB considers the level of need in this domain as low. The IRP feels there was a low level of need from 30 December 2013 to 5 January 2014, and this increased to moderate from 6 January 2014 onwards.
29. Mrs U says her mother put herself at risk by refusing food, fluid and medication, resulting in a review by a consultant psychiatrist and a community psychiatric nurse. She describes her mother as ‘implacable’ once she had made her mind up about eating or taking her medication.
30. The DST form describes Mrs E as being ‘generally compliant with care interventions and she did not pose a risk to herself or others'.’ It notes when Mrs E had paranoid ideations in February 2014, she refused medication and food at times, but this appeared to resolve when she started taking quetiapine (antipsychotic medication) in March 2014.
31. The IRP notes Mrs E’s needs were low until 5 January 2014 and, while there were some incidents of challenging behaviour, Mrs E was compliant with her care interventions. However, from 6 January 2014 onwards, the IRP notes there were increased incidents of challenging behaviour, which were well managed by staff and followed a pattern.
32. As such, the IRP concluded Mrs E’s level of need in this domain increased from 6 January 2014 onwards and were consistent with the DST’s definition of moderate in the behaviour domain. The DST defines this as ‘challenging’ behaviour that follows a predictable pattern. The risk assessment suggests 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.”
33. We understand Mrs U remained anxious and concerned for her mother’s well-being and these feelings would be compounded when her mother refused to eat or take her medication. It would naturally be distressing for a family to see their loved one in this condition.
34. There is evidence in the medical and care home records Mrs E sometimes ‘refused to eat’ or ‘did not want to co-operate’. Staff appear to have managed these incidents well, and we have seen no evidence to suggest Mrs E’s behaviour posed a risk to herself or others. We can see no signs of a failing in how the IRP considered this domain.
Drugs therapies and medication
35. Mrs U agrees with the panel her mother’s level of need in this domain was high from 7 January 2014. She believes before this her mother’s level of need was moderate, whereas the ICB and the IRP assess Mrs E’s needs as low.
36. Mrs U says as her mother had diabetes, her condition had to be monitored and managed, and was affected by her immobility, poor nutritional intake, obesity and pain medication. Mrs U says this resulted in frequent medication changes in response to the changes in her mother’s condition. Mrs U also says her mother had a history of migraines, which she had several times a year. She says her mother would not have been able to tell staff she was in pain.
37. The DST defines a low level of need in the drug therapies and medication domain as ‘symptoms are managed effectively and without any problems, and medication is not resulting in any unmanageable side effects’.
38. The DST defines a moderate level of need in this domain as:
‘Requires the administration of medication (by a registered nurse, carer or care worker) due to non-compliance, or type of medication (for example insulin), or route of medication (for example PE).
OR Moderate pain which follows a predictable pattern, or symptoms which are having a moderate effect on other domains or on the provision of care.’
39. The IRP says Mrs E’s needs were low before the prescription of quetiapine. While it notes Mrs E needed some encouragement to take her medication, she was generally compliant in this.
40. We recognise Mrs U was concerned about her mother’s healthcare and how her medication could interact with and affect her existing comorbidities (having more than one disease or condition at the same time). The GP records from January 2014 document Mrs E’s non-compliance and change in mood. The records go on to say Mrs E showed a ‘good response’ after the prescription of quetiapine. We cannot find any records suggesting there was an increased need to monitor Mrs E’s care.
41. From the evidence, we can see no signs of a failing in how the IRP has considered this domain.
Altered state of consciousness
42. Mrs U says her mother had a history of transient ischaemic attacks (TIAs - brief stroke-like attacks when symptoms resolve within 24 hours). A medication plan was implemented in June 2012, and Mrs E was hospitalised following a cerebral event. Mrs U says her mother had periods of frequent vacant episodes, and she would not be aware this had happened. Mrs U believes her mother suffered TIAs which the care home did not identify or record. She says the level of need for this domain was moderate, whereas the ICB and IRP assess it as low.
43. From Mrs E’s hospital records, the IRP notes no other medication was prescribed for seizures since the one Mrs E suffered in June 2012 as there was no evidence of any recurring seizures. This continued until October 2014 when the care home staff reported Mrs E’s vacant episodes and observed her left-side weakness. The IRP concludes there was no evidence to suggest Mrs E needed supervision to minimise the risk of harm.
44. We are sorry to learn about Mrs E’s medical history and appreciate this compounded Mrs U’s concerns for her mother.
45. From the evidence, we can see while Mrs E had a history of an altered state of consciousness, during the review period she presented as a low risk. We can see no signs of a failing in how the IRP considered this domain.
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
46. The IRP also applies an eligibility test to help it decide about a person’s CHC eligibility. The National Framework separates this test into four key characteristics: nature, intensity, complexity and unpredictability. The IRP uses this test to establish if the quantity or type of care a person needs are more than the local authority can provide. If so, this suggests they have a primary health need, which means they are eligible for CHC funding.
47. The National Framework sets out questions for the IRP to consider to help establish 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 to look at whether the IRP properly considered the four key characteristics of Mrs E’s needs.
48. We can see Mrs U told the IRP she did not believe the care home gave her mother the level of care and support she needed. She believes this caused her death. She also says the care home records do not accurately reflect what she saw when she visited her mother.
49. Mrs U tells she disagrees with the IRP’s assessment of each of the four key characteristics. We can see the IRP considered Mrs U’s written evidence provided by her solicitors, and it also asked Mrs U if she had any further comments.
Nature
50. 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’.
51. We can see the IRP considered the nature of Mrs E’s needs at the expected level of detail. The IRP focused on Mrs E’s individual needs rather than her diagnosed medical conditions. We can also see the IRP noted Mrs U’s observations of her mother’s frequent and brief absences.
52. The report shows the IRP considered all evidence presented for this case when making their comments about the nature of Mrs E’s care needs. It explains and describes the nature of her needs in section 9.1 of the report. The description is detailed and considers how those needs were met.
53. The IRP considers Mrs E needed regular care interventions from staff who knew her and understood her needs, and she was mainly compliant. There was no need for a particular knowledge or level of skill not routinely provided by district nurses or community health services.
54. We consider the IRP acted in line with the guidance set out in the National Framework when it considered the nature of Mrs E’s needs.
Intensity
55. 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)’.
56. The IRP report shows it considered Mrs E’s care plans and the frequency and intensity of the care she needed.
57. The IRP recognises Mrs E had a level of need in most of the DST’s care domains. It weighed up all the evidence before it concluded the levels of daily care and monitoring needed in these domains were not severe enough to determine a primary health need.
58. We consider the IRP acted in line with the National Framework when it considered the intensity of Mrs E’s needs.
Complexity
59. The IRP has carefully considered the complexity of Mrs E’s level of need. 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. This may arise with a single condition, or it could include the presence of multiple conditions or the interactions 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 when a physical health need results in the individual developing a mental health need.’
60. We can see the IRP considered Mrs E’s speech, mobility and cognitive impairment (memory and/or thinking problems) and the level of care and input she needed from the care home staff. The IRP considered all evidence presented for this case when making their comments about the complexity of Mrs E’s care needs. While there was some interaction between the domains, which were influenced by Mrs E’s underlying conditions, carers could deliver her care, following a care plan that had been assessed, planned and monitored by a registered district nurse, with input from her GP. There is no evidence to support her care was difficult and complex to manage, nor did she need regular, intensive input from a specialist team.
61. We can see the IRP weighed up all the evidence before they decided this key characteristic did not suggest a primary health need for Mrs E. It sets out why it thought the level of skill needed to manage the interaction of her needs was not complex and why none of the interactions posed a significant barrier to the carers looking after her.
62. We consider the IRP acted in line with the National Framework when it considered the complexity of Mrs E’s needs.
Unpredictability
63. The final key characteristic of a person’s level of need is unpredictability. The National Framework defines this as ‘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… a fluctuating, unstable or rapidly deteriorating condition.’
64. The IRP notes Mrs E’s care plans were planned and delivered accordingly, and they did not change significantly during the review period. Her care followed a natural format appropriate to her underlying conditions. There is no evidence to support her care was unpredictable to manage. While Mrs E sometimes refused food and medication, staff knew about this and they were aware of how to sooth her.
65. We consider the IRP acted in line with the National Framework when it considered the unpredictability of Mrs E’s needs.
66. We are satisfied there are no failings in how the IRP considered the four characteristics of Mrs E’s needs, and it acted in line with the National Framework.
67. Based on the evidence we have seen, the IRP’s conclusion Mrs E’s care needs did not suggest a primary health need appears to be in line with the National Framework.
68. This does not take away from the account Mrs U has given us, and we understand seeing her mother’s decline has had a profound impact on her. We thank her for bringing her complaint to us for consideration.