16. It is our role to decide whether NHS England’s IRP acted in line with the National Framework when it looked into whether Mrs G should get CHC funding. CHC is given where a person has a primary health need, and the ICB funds all their care needs. The National Framework sets out the principles and processes the CCG (now known as ICB) and NHS England should have followed when looking into whether Mrs G was eligible for CHC.
17. We cannot look at the decisions that were up to the IRP to make when it decided on Mrs G’s eligibility. This includes the decisions it makes based on clinical judgement and clinicians’ opinions. We can only look at whether the IRP has followed the relevant National Framework. This means we can only uphold a complaint about a CHC eligibility decision if we find the IRP did not follow the relevant National Framework when it made its decision.
18. The IRP reviews whether the CCG should have found a person to have a primary health need and therefore be eligible for CHC. It also reviews the ways the CCG made its eligibility decision to make sure it was acting in line with the National Framework. If the IRP does find the CCG made a mistake, it can:
· recommend the CCG reconsider whether the patient had a primary health need, and · recommend the CCG deal with any procedural failings the IRP identified.
19. When we look at a complaint about an IRP, we look into whether it looked at all the relevant information when making the eligibility decision. Mrs L’s representative has told us Mrs L disagrees with the IRP’s conclusion that Mrs G was not eligible for CHC. Mrs L’s representative says the IRP did not properly think about the four key characteristics in its decision about eligibility.
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
20. The IRP applies an eligibility test when making a decision about a person's CHC eligibility. This is called the ‘primary health need’ test. The National Framework separates this test into four key characteristics: nature, intensity, complexity and unpredictability.
21. The IRP uses the primary health need test to find out whether the amount or type of a person’s care needs is more than what the local authority can provide. If so, this shows the person has a primary health need, which in turn shows they are eligible for CHC.
22. The National Framework sets out questions for the IRP to think about to help find out about a person's level of need. These questions are outlined in Practice Guidance 3 ‘What is a primary health need’ (PG3, specifically PG3.9). The National Framework is clear these questions are not meant to be used strictly and are there to guide the IRP’s decisions. We used these questions when we looked at whether the IRP properly thought about the four key characteristics of Mrs G’s needs.
23. Mrs L’s representative has told us Mrs L disagrees with the way the IRP thought about each of the four key characteristics. We can see she wrote to the IRP with a view on each key characteristic.
Nature
24. 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’.
25. Mrs L’s representative told the IRP Mrs G had expressive and receptive dysphasia, conditions that affect a person’s ability to produce and understand speech. This affected Mrs G’s ability to make herself understood. They told the IRP Mrs G had severe cognitive impairment (serious difficulty remembering, understanding and learning things). These needs meant Mrs G needed someone skilled to look after her and to make decisions in her best interest.
26. The representative told the IRP Mrs G had dysphagia (difficulty swallowing or drinking), had a poor appetite and needed encouragement to eat. They also told the IRP Mrs G’s body mass index showed she was underweight. She was at risk of weight loss and malnutrition despite taking supplements. These needs meant Mrs G needed someone to look after her to hopefully keep her from losing further weight.
27. We can see the IRP thought about the nature of Mrs G’s needs with PG3.9 in mind. It focused on Mrs G’s individual needs rather than any of her diagnosed medical conditions. It talked about the impact of those needs on her health and well-being, finding she needed a level of care to be kept safe.
28. The IRP report shows the panel had a thorough talk about the nature of Mrs G’s needs. It made a list of the types of needs she had and what this meant for her care. We can see the IRP understood and looked into each of the points Mrs L’s representative put forward.
29. The IRP noted the worsening in Mrs G’s cognitive and physical abilities meant she needed round-the-clock supervision and care. The IRP accepted Mrs G’s specific needs caused by her poor cognition and inability to reliably say what she needed. This meant carers had to guess all of Mrs G’s needs. The IRP talked about Mrs G’s need for support with eating, drinking and her double incontinence (leaking both urine and stool).
30. The IRP thought about the types of treatments and help Mrs G needed. There was no sign the care she needed was problematic or needed particular knowledge or skills to address. The IRP noted her condition was not worsening. We can see the IRP weighed everything up, including the representative’s comments, and thought about the questions set out in PG3.9 before it decided a local authority could meet the nature of Mrs G’s needs as part of its social care duty.
31. We think the IRP acted in line with the guidance set out in the National Framework when it thought about the nature of Mrs G’s needs.
Intensity
32. The National Framework says this characteristic relates to ‘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”)’.
33. Mrs L’s representative told the IRP while Mrs G’s needs were met through routine care, it was the added-up effect of these needs that needed skilled oversight. Mrs L’s representative mentioned a number of Mrs G’s needs, including being at risk from falls, suffering from chronic lung conditions and a worsening of her cognitive abilities.
34. Again, the IRP report shows a thorough talk about the intensity of Mrs G’s needs. We can see the IRP understood the level of Mrs G’s needs and accepted there was some intensity in certain areas. The IRP felt this was because Mrs G’s cognition meant she could not express her needs, so carers needed a bit more time to meet them.
35. The IRP went through Mrs G’s needs to think about whether they showed intensity. It noted Mrs G needed more watching because of her incontinence and skin care due to episodes of faecal smearing. But this was very rare and needed no specific treatment. The IRP accepted Mrs G sometimes refused to take her medication, but not regularly. It did not stop carers delivering her care. The IRP noted she needed two carers, but no more, to help her when she got up.
36. We can see the IRP thought about the intensity of Mrs G’s needs with PG3.9 in mind. It understood she was receiving around-the-clock care in a nursing home. It thought about how often she needed treatments and help, how long these took and how many carers she needed. This was in line with PG3.9. The IRP weighed up all the evidence, including the representative’s comments, before it decided Mrs G did not need many carers and the treatments that were needed were not frequent or time-consuming. The IRP concluded the levels of care and monitoring needed in these areas were not severe enough to count as a primary health need.
37. We think the IRP acted in line with the National Framework when it thought about the intensity of Mrs G’s needs.
Complexity
38. The National Framework says this characteristic 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’.
39. Mrs L’s representative told the IRP Mrs G’s needs were complex due to their interactions. The worsening of Mrs G’s cognition (ability to understand and learn things) could have made her less aware of the effects of her own actions, such as getting up and refusing medication and food, on her physical and mental health.
40. The IRP report shows how it thought about the number of interactions between the different areas of care. The IRP noted interactions between Mrs G’s needs to do with continence, nutrition, mobility and skin. It also mentioned Mrs G’s recurrent chest infections, history of COPD and bronchiectasis, refusal to take medication and difficulties eating and drinking could have been a risk to her well-being. The IRP noted while Mrs G sometimes refused to take her medication, carers could still routinely give it to her.
41. We can see the IRP weighed up all the evidence, including what the representative said, before it decided this key characteristic did not show a primary health need for Mrs G. It thought about the questions set out in PG3.9. It thought about how problematic Mrs G’s care was. It said Mrs G’s carers often had to leave her and return to finish helping her, but always managed to provide her care. It looked at Mrs G’s care plans and accepted while there were interactions between some of Mrs G’s care needs, they did not mean more skill or knowledge were needed to deliver care.
42. We think the IRP acted in line with the National Framework when it thought about the complexity of Mrs G’s needs.
Unpredictability
43. The last key characteristic of a person’s level of need is unpredictability. The National Framework says this characteristic is: ‘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.’
44. Mrs L’s representative told the IRP there were a number of Mrs G’s needs that were unpredictable. This included Mrs G’s worsening behaviour and cognition which could possibly put her at risk of harm, neglect and worsening health. Also, the effects of Mrs G’s specific needs around eating, drinking and medication on her health and well-being were unpredictable.
45. The IRP accepted Mrs G’s condition was worsening, but slowly. It noted there were no signs her condition was worsening quickly and her needs were becoming more serious. Importantly, the IRP did not find evidence Mrs G’s needs were shifting so much she often needed changes to her care plan or medication. Carers could meet her needs within planned care and she did not need them outside this. This shows Mrs G’s needs were thought to be stable and not unpredictable. These are the things PG3.9 asked the IRP to think about.
46. We think the IRP acted in line with the National Framework when it thought about the unpredictability of Mrs G’s needs.
47. We are happy there are no signs of failings in how the IRP thought about the four key characteristics of Mrs G’s needs. We think it acted in line with the National Framework. The IRP explained its reasons for its decisions on the key characteristics in detail. We can see no reason to question the decision the IRP reached. There is nothing to suggest the IRP’s conclusions were not based on the available evidence.
48. We understand this is not the decision Mrs L and her representative were hoping for. We see the amount of time and effort they have put in to make sure Mrs G had the right decision. We understand this has been a difficult time and Mrs G’s family has gone through a long process. We hope our decision clearly explains why we have found the IRP acted in line with the National Framework.