16. It is our role to decide whether NHSE’s IRP acted in line with the National Framework when it considered whether Mrs O was eligible for CHC.
17. The National Framework sets out the principles and processes CCGs and NHSE should follow when considering if someone is eligible for CHC. Please note we refer to the CCG (rather than ICB as it is now called) throughout this decision because it was a CCG at the time.
18. We cannot consider the discretionary decisions the IRP made when it decided on eligibility. This includes the decisions it makes based on clinical judgement and clinical opinions. We can only consider if the IRP has followed the National Framework. This means we can only uphold a complaint about a CHC eligibility decision if we find the IRP did not follow the National Framework when it made its decision.
19. The IRP reviews if the CCG should have found the person to have a primary health need and be eligible for CHC. It also reviews the CCG’s procedures when it was coming to 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 reconsiders if the person had a primary health need • recommend the CCG addresses any procedural faults the IRP identified.
20. When we look at a complaint about an IRP, we consider if it took into account all the relevant information when it made its eligibility decision. To help us make a decision, we consider four key areas. The first area we consider are whether the IRP gathered and considered all the relevant evidence.
21. Paragraph 199 of the National Framework says 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.’
22. At section six in its report, the IRP listed the evidence it considered in reaching its recommendations. The documentary evidence it listed was:
• DST • LRM minutes • daily care record • medicines administration record (MAR) charts • daily notes • care plans.
23. The IRP also said it considered evidence given during the IRP meeting.
24. The IRP referred to the care plans throughout its report. For example, in section 7.10 where it discussed the drug therapies and medication domain. Here it mentioned the medication care plan.
25. We have seen a copy of the casefile. This contains the evidence the IRP had available to it during the IRP meeting.
26. We cannot see copies of the care plans or MAR charts in the casefile. There are care records in the casefile, but this is largely the daily observations and does not include the care plans.
27. We contacted NHSE about this and asked it about the care plans and MAR charts.
28. NHSE confirmed the CCG did not include the MAR charts and care plans in the file it provided to the IRP. It also said the IRP did not highlight this as missing evidence.
29. NHSE stated the extracts in the IRP report that refer to the MAR charts and care plans are from the DST completed on 8 July 2019.
30. This suggests the IRP only considered what the CCG said was in the care plans and MAR charts, and not the actual records. We would expect the IRP to consider all available evidence and be independent. Based on the above, we cannot see it did this.
31. We acknowledge the IRP has considered some, if not most, of the records, but it should have used all the available records and not just details from the CCG’s DST. We cannot see the IRP acted in line with paragraph 199 of the National Framework.
32. Because the IRP did not gather and consider all available and appropriate evidence, we did not consider the IRP report any further. This is because if the IRP had this evidence, its decision and rationale of the domains or eligibility test may be different.
33. We have not considered whether there was a failing with how the IRP considered the drug therapies and medication domain or how the IRP referred to one of Mrs O’s health conditions.
34. Although we have not reviewed these, we did bring them to NHSE’s attention so it was aware of Mrs A’s concerns and, if it feels appropriate, it can address these concerns in the new IRP. It said it would ask the chair to consider these two points.
35. We note Mrs A had concerns about the IRP meeting not being in person and had difficulties joining the meeting virtually. Because of the COVID-19 pandemic, NHSE likely would not have been able to offer a face-to-face meeting.
36. Before the meeting, NHSE made Mrs A aware of the virtual meeting. It also sent a link to join the meeting online and a telephone number to join the meeting by phone. There is nothing more we would expect NHSE to do in this situation.
37.The new IRP will give Mrs A and her husband the opportunity to attend the new IRP meeting in person.
38. We also note Mrs A had concerns about the documents NHSE sent her before the IRP meeting.
39. We can see NHSE told Mrs A that sending the casefile electronically was an acceptable process and it could not send it in the post because staff were working remotely during the COVID-19 pandemic.
40. We are not critical of the IRP for not sending the casefile by post. When Mrs A prepares to attend the new IRP, she should have the opportunity to review the casefile first.
Resolution
44. NHSE offered to arrange a new IRP to be held with an updated casefile. It stated it would be in contact with Mrs A to offer a date for the new IRP.
45. We consider this resolves Mrs A’s complaint, as her outcome for this complaint was for NHSE to reconsider its decision. By having another IRP, NHSE will reconsider the full range of evidence and reach a new decision based on this. If Mrs A still has concerns after this, she can bring the matter back to us.
46. While the decision on eligibility might not change, we are satisfied this action is appropriate and will provide Mrs A with a thorough consideration of her request for a review.