14. Before we explain our decision, we would like to explain how an IRP reaches its decision and what this means about how we look at it.
15. An IRP is a panel set up by NHS England that completes a review of:
a) the primary health need decision made or b) the procedure followed when reaching a decision about eligibility.
16. The IRP then makes a recommendation to NHS England.
17. 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.
18. When looking at complaints about IRP decisions, we consider four key questions.
Did the IRP get all the relevant evidence?
19. 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.’
20. We have reviewed the information provided to us in NHS England’s case file and we can see the IRP had access to: • Mr J’s care home records, GP records, district nursing and social services records • correspondence from and with Mrs J and her representative, including the family’s views and concerns about his eligibility for CHC funding • the DST and notes from the meetings.
21. We can see there are no obvious documents or evidence missing from what NHS England considered. We are satisfied there is no sign of a failing in how the IRP established all the appropriate and relevant clinical facts. The IRP had access to information clearly detailing Mr J’s needs in the period under consideration.
22. We think the IRP acted in line with paragraph 199 of the National Framework.
Before it made its decision, did the IRP consider all the relevant evidence?
23. Mrs J says the IRP did not pay enough attention to the family’s concerns about Mr J’s needs and did not make full use of the information in the care home records.
24. The IRP report and notes show it considered how the panel discussed all the available evidence when it was weighing up the disputed domains. We can see the IRP discussed Mrs J’s evidence, including during the IRP meeting.
25. We appreciate Mrs J’s frustrations with the CHC process. We can see she raised concerns about making sure her views were heard. We can see the IRP considered the information in Mr J’s medical and care records. When it explained its weighting for each domain, it referred to specific pieces of information it took from the evidence. We can also see the IRP had the National Framework in mind when it discussed its weighting of each domain and key characteristic. It outlined how it weighted each domain and explained how its weighting was in line with the National Framework.
26. Paragraph 199 of the National Framework is also relevant to this part of the IRP’s decision-making and we think it acted in line with this guidance.
Did the IRP clearly explain how it had reached its decision?
27. Under this question, we look at any disputed weightings in the care domains and how the IRP considered the well managed needs principle.
28. Mrs J disagrees with how the IRP decided the continence and behaviour domains.
Continence
29. Mrs J disputes the IRP’s weighting of this domain. She says it should be high and the IRP report incorrectly says she agreed with the IRP’s weighting of moderate.
30. Mrs J says her husband was doubly incontinent and had two urinary tract infections (UTIs) during the period. She says her husband could not change his pads on his own and did not know when he needed the toilet. She says the care staff found him handling his own body waste.
31. We can see from the IRP notes that Mrs J said she was not sure if a weighting of moderate was correct and she thought it should be high. This suggests the IRP report should have been clearer in noting that she did not agree. We can also see the IRP discussed with Mrs J that a weighting of high would mean a patient was having more than routine care.
32. The DST defines a moderate weighting as:
‘Continence care is routine but requires monitoring to minimise risks, for example those associated with urinary catheters, double incontinence, chronic urinary tract infections and/or the management of constipation or other bowel problems.’
33. It defines a high weighting as:
‘Continence care is problematic and requires timely and skilled intervention, beyond routine care (for example frequent bladder wash outs/irrigation, manual evacuations, frequent recatheterisation).’
34. We can see from records the IRP considered that Mr J’s needs reflected the moderate descriptor because he needed monitoring. We have looked at Mr J’s medical and care records. We can see he was doubly incontinent and often not compliant with his care around changing his continence pads, changing out of wet clothes and going to the toilet. The records show there was a time when he was found putting faeces on the side next to his bed. But this seems to have only happened once.
35. The records do not show that Mr J needed care that went beyond what was considered routine. He did not need bladder washouts, manual evacuation or frequent recatheterisation. We would have expected to see evidence of these for the IRP to have considered a weighting of high in this domain.
36. We understand how distressing it was for Mrs J to see her husband needing continence care. When we weigh up the evidence, it seems the IRP acted in line with the National Framework and DST guidance when it considered Mr J’s needs in this domain. Its weighting of moderate captures the needs Mrs J described and what the records show. There is no sign of what the IRP would have needed to see to give a higher weighting. We have not seen signs of a failing in this decision.
Behaviour
37. Mrs J disagrees with the IRP’s weighting of this domain as high. She says it should be severe. She also says the IRP report again wrongly says she agreed with the weighting given. She said Mr J became very violent and was completely unlike the man she had lived with for so many years. Mrs J said he had tried to strangle her before he was moved into the care homes and he regularly tried to strike people. She said he was very resistant to care and needed two carers to support him. She said these both had to be men, which shows how challenging his behaviour often was.
38. The IRP said Mr J needed two carers and it could be challenging to support him, including in his continence care. It said he could try to kick carers or hit them with his stick and he would be resistant to changing out of wet clothes. It also said Mr J did not need specialist interventions or assistance from outside specialists. It said his behaviour was predictable. Carers successfully used a ‘retreat and return’ method when dealing with him. It said these planned interventions were effective in reducing risks, but they did not always remove them.
39. The DST document defines the high weighting for this domain 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.’
40. The DST document defines the severe weighting as:
‘‘Challenging’ behaviour of severity and/or frequency that poses a significant risk to self, others or property. The risk assessment identifies that the behaviour(s) require(s) a prompt and skilled response that might be outside the range of planned interventions.’
41. We have no reason to not believe Mrs J, but we cannot see in the notes of the IRP meeting that she said she thought her husband’s needs were severe in this domain. The IRP also could not look at what had happened before the period it was considering, including events before Mr J went into care, unless any incidents continued.
42. We can see Mr J moved to the care home because the last care home could not cope with his behaviour. The records also show the home’s care plan was for two male carers to look after him. It is not clear from the records that this was because Mr J was so violent that female carers could not cope with him. They do suggest female carers were more likely to trigger an episode of non-compliance or violence.
43. The records also show Mr J showed calm behaviour, including playing table tennis. The records do not seem to suggest any serious harm or genuine risk to himself or others in the period the IRP considered. There is no sign he needed a quick and skilled response that might be outside the range of planned interventions. We would expect to see this for the IRP to have given a weighting of severe for this domain.
44. We appreciate how upsetting and frightening Mr J’s behaviour in the last years of his life became for Mrs J. The IRP agreed with her that his behaviour was challenging for his carers. The key detail is that carers knew the sort of things that would trigger the episodes and knew how to manage them. When we weigh up the evidence, it seems the IRP acted in line with the National Framework and DST guidance when it considered Mr J’s needs in this domain. We have not seen signs of a failing with this decision.
Well managed needs principle
45. Mrs J believes the IRP did not look properly at the high level of care her husband was getting, when assessing if he had a primary need. She believes the IRP did not follow the National Framework and see that Mr J was just looked after very well, but a change in this would have shown he still had severe needs.
46. In particular, she feels the IRP ignored her evidence that her husband’s care home advertised itself as a specialist dementia home, whose staff had extra training on looking after dementia patients. She said this was a key reason she chose that home, but the IRP said there was no evidence an increased level of skill was needed by the care home staff.
47. The National Framework (paragraph 63) says, ‘care must be taken not to misinterpret a situation where the individual’s care needs are being well-managed as being a reduction in their actual day-to-day care needs.’
48. Due to his dementia, Mrs J had looked to put him in a care home with skills in that area. We appreciate her concerns about Mr J’s condition and what was needed to look after him. In particular, she is concerned about the level of care her husband’s violence and behaviour needed.
49. Mr J’s records do not show he had a risk assessment that suggested he needed specialist training or interventions beyond what a local authority would be expected to provide to help care for him. The records also show there were concerns that the care given to him during the period was not always managed well, this is why the ICB completed a new DST for Mr J in February 2019.
50. We have looked across the needs and we think the IRP based its view on what the evidence showed. We have considered if the IRP did misinterpret Mr J’s needs because of the level of care he was getting. We think the IRP correctly applied this principle. The IRP has detailed in its report the level of care Mr J needed in each domain and how the care he was getting met this need. It had to do this to properly consider his needs. It also considered the level of skill needed to provide the care under the complexity characteristic. But we understand Mrs J’s concern is that the IRP downgraded his needs because he was being cared for in a home where the staff were specially trained and skilled in looking after people with dementia.
51. There is no sign that the IRP said any of his needs were lower than they should have been because of how the carers met them. As we have set out above, we think the IRP weighted each disputed domain in line with the evidence available to it. We have seen no sign of a failing in how the IRP considered the well managed needs principle.
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
52. Mrs J disagrees with how the IRP considered the four key characteristics, which it used to decide whether Mr J had a primary health need. He believes the IRP was wrong to say there was no evidence her husband had a primary health need.
53. The IRP said it did not decide that Mr J’s needs were beyond that which could be expected of a local authority.
54. Practice guidance three (PG3) in the National Framework sets out how to consider the key characteristics. These are the nature, intensity, complexity and unpredictability of the person’s needs. PG3 includes some questions for each characteristic to help guide them in how to think about it. But, the National Framework does not expect an organisation to strictly answer each question, they are guidelines.
55. Mrs J has not given specific reasons why she thinks Mr J had a primary health need, apart from the issues discussed above. We have looked at the IRP report. We can see it explained Mr J’s needs and how they interacted in detail for each characteristic. The report considered the questions for each characteristic as we would expect it to and provided a detailed explanation of why it made its decision.
56. We understand why Mrs J thinks her husband had a primary health need. He was clearly not well. When we weigh up the evidence, the records do not suggest that he had needs beyond those which could be provided by the local authority. It seems the IRP considered Mr J’s needs in the four characteristics in line with the National Framework. We have not seen a failing with this decision.