25. It is our role to decide whether NHSE’s IRP acted in line with the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (2018) when it considered whether Mr W was eligible for CHC. The National Framework sets out the principles and processes ICBs and NHSE should follow when considering if someone is eligible for CHC.
26. 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 clinician’s 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.
27. The IRP reviews if the ICB should have found the person to have a primary health need and therefore be eligible for CHC. It also reviews the ICB’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 ICB made a mistake, it can:
• recommend the ICB reconsiders if the patient had a primary health need, and • recommend the ICB addresses any procedural faults the IRP identified.
28. It is important to note that NHSE’s decision supersedes all previous eligibility decisions. Therefore, procedural issues only have a direct substantial effect on the overall eligibility decision in exceptional circumstances.
29. Moreover, our remit solely concerns the review of IRP’s decision-making process and whether they followed the National Framework in coming to their decision. We do not review the ICB’s original decision, nor can it comment on whether a different process should have been followed by the ICB. With regards to procedural issues raised by complainants, our role is to review whether the IRP adequately responded to the issues raised.
Did the IRP get all the relevant evidence?
30. 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.’
31. We have reviewed the information provided to us in NHSE’s case file and we can see the IRP had access to the following:
• Application for Independent Review • Written submissions from Mrs A to NHSE • Decision Support Tool (22 April 2021) • ICB Outcome Letter (14 May 2021) • Notice of Appeal by Mrs A • Local Resolution Meeting Notes (7 October 2022) • Clinical Dispute Review (October 2022) • ICB Outcome Letter (25 October 2022) • Care Home Records from the Nursing Home • GP Records • Social Service Records • Correspondence between Mrs A and the ICB
32. The IRP report documents the submissions Mrs A gave in person and in writing.
33. It is clear the IRP had access to all the information the ICB used to make its decision. It gave Mrs A an opportunity to provide verbal evidence during the meeting on and had access to her written submissions. The IRP also received Mr W’s medical records from the CCG which demonstrated her needs during the review period.
34. We can see there are no obvious omissions in the documents and evidence NHSE considered. We are satisfied there is no indication of a failing in how the IRP established all the appropriate and relevant clinical facts.
35. We think 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?
36. 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.
37. We can see the IRP discussed Mrs A’s written and verbal evidence. This is clearly detailed in sections five, which discussed the reasons for why Mrs A requested an IRP. For example, it notes ‘Mrs [A’s] Request for Independent Review gives several reasons for challenging the ICB’s decision.’
38. Sections seven and nine of the IRP report outlines Mrs A’s views on each individual domain and key characteristic.
39. We can see the IRP also considered the information in Mr W’s medical records. When it explained its weighting for each domain, it refers to information it taken from the medical records. We can also see the IRP had 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.
40. Paragraph 199 of the National Framework is also relevant to this part of the IRP’s considerations, and we think it acted in line with this guidance here.
Did the IRP clearly explain how it had reached its decision?
41. Mrs A has told us she disagreed with how the IRP considered several of the domains the health service uses to determine a person’s care needs.
Nutrition (Food and Drink)
42. Mrs A considers Mr W’s needs in the nutrition domain were high for the assessed period. The LRM and IRP both weighted this as moderate.
43. For moderate needs, the DST says the following:
‘Needs feeding to ensure adequate intake of food and takes a long time (half an hour or more), including liquidised feed.
OR Unable to take any food and drink by mouth, but all nutritional requirements are being adequately maintained by artificial means, for example via a nonproblematic PEG.’
44. The DST defines high needs in this domain as:
‘Dysphagia requiring skilled intervention to ensure adequate nutrition/hydration and minimise the risk of choking and aspiration to maintain airway.
OR Subcutaneous fluids that are managed by the individual or specifically trained carers or care workers.
OR Nutritional status “at risk” and may be associated with unintended, significant weight loss.
OR Significant weight loss or gain due to identified eating disorder.
OR Problems relating to a feeding device (for example PEG) that require skilled assessment and review’.
45. In her request for an IRP, Mrs A says she disagreed her father was independent with eating and drinking. She explains he needed help with choosing meals as well as assistance with eating and drinking. Mrs A was living next door to her father, and she would see to Mr W’s daily living needs throughout the day and night, even during the middle of the night.
46. In terms of her father being offered choices of meals, Mrs A believes her father was offered choices of meals but was unable to participate in the choice. She says the staff knew her father's likes and dislikes by the time of the DST, and Mrs A informed the IRP the care home chose for him with his usual food and fluid intake.
47. In the questionnaire, Mrs A says her father cannot eat or drink food without the aid of another person due to him not being able to sit up straight, unable to hold cutlery to cut up his food and/or bring food to his mouth. She says her father cannot hold a cup with a straw to his mouth to drink.
48. Mrs A informed the IRP a risk of choking was also reported in March 2021 and as such more supervision should have been provided. She explained the episode of choking required an immediate first aid response. She said weight loss was also identified. She also said Mr W required full assistance to eat and drink and required close monitoring of his diabetes and insulin therapy.
49. The IRP discussed Mr W’s nutritional needs, and recognised even though he required close monitoring both his nutrition and his diabetes, he remained a reasonable weight during the review process. The IRP said he was never deemed to be at risk of malnutrition.
50. It said Mr W’s weight was approximately 63kg to 70 kg. The panel recognised Mr W required full assistance to maintain satisfactory nutrition, together with monitoring of his blood sugar levels and supervision when eating to minimise any risk of choking.
51. The IRP agreed with the ICB’s weighting of moderate and said it was a reasonable reflecting of Mr W’s needs in the nutrition domain.
52. There are several examples in the care records to support Mr W’s nutritional needs during the assessed period.
53. The care home records show Mr W was enjoying his diet, and fluids on separate occasions during March 2021. For example, the records note on 27 March 2021, ‘he has taken diet and fluids in good amount, and he has enjoyed extra helpings’.
54. The care plan from the care home which evaluated Mr W’s nutritional needs on 21 April 2021 notes ‘[Mr W] is able to feed himself finger food… with main meals, [he] at times does attempt to feed himself with a use of a spoon’. It recognises Mr W requires close supervision with finger food and assistance from staff due to observations found more food is on [Mr W] and on the floor, than eaten.
55. The care plan also recognises Mr W is diabetic, and as such low sugar diet is required. It states he has food and fluid of normal texture.
56. The daily care records show an assessment was conducted on 22 April, where Mr W’s malnutrition universal screening tool (MUST – identifies patients who are malnourished or at risk of malnutrition) score indicated a low risk of malnutrition, with a score of 0.
57. Due to the choking incident which occurred in March, the social care records on 22 April note ‘[Mr W] is able to eat independently and is now offered softer options… staff monitor [Mr W] to ensure he is safe. No [speech and language therapists] SALT or dietician involved’.
58. The DST states Mr W’s body mass index (BMI) was in the normal range (19 to 25), he needed support with eating and was better with finger foods, had an ‘adequate’ dietary and fluid intake, with no dietician involvement.
59. Our adviser explains the available evidence coincides with the DST descriptor of moderate needs in nutrition, which is ‘needs feeding to ensure adequate intake of food and takes a long time (half an hour or more), including liquidised feed’.
60. Our adviser also says there was no clinical evidence to support a higher weighting, and as such, the conclusions of the IRP are supported by the available evidence in line with the National Framework for NHS CHC.
61. We acknowledge Mrs A considers her father’s need were higher than the IRP weighted. We can see Mr W needed support from his carers to assist with his eating but there is no indication in the evidence to show additional input from SALT or a dietician was required to assist Mr W in this domain. The IRP acted in line with the National Framework.
62. We can see no indication of failings in how the IRP considered this domain for the assessed period.
Continence
63. Mrs A says her father’s needs in the continence domain were high for the assessed period. The LRM and the IRP both weighted this as moderate.
64. The DST defines moderate needs in this domain are 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.’
65. High needs are defined as:
‘Continence care is problematic and requires timely and skilled intervention, beyond routine care (for example frequent bladder wash outs, manual evacuations, frequent re-catheterisation).
66. Mrs A explains in her appeal submission documents, her father has no control of his bladder and bowel movements, he suffers with constipation, wears pads 24 hours a day, which requires frequent changing and cleaning. Mrs A also says her father is hoisted by two members of staff as he has no mobility and constantly suffers from urinary tract infections (UTIs).
67. The IRP considered Mr W’s continence needs, and found he was incontinent of both urine and faeces. It recognised he had a history of constipation and UTI’s. The IRP said he also needed full assistance from care home staff when being toileted, and suitable containment products were being used to keep him comfortable.
68. It concluded Mr W’s needs in the continence needs were consistent with the moderate weighting.
69. Based on what we have seen so far, the evidence for the assessed period suggests the IRP considered Mr W’s continence needs in line with guidance and correlates with the discussion held.
70. We can see there are several examples in the records to show Mr W’s continence needs fit the moderate descriptor.
71. The care home plan of 13 March identifies Mr W as incontinent of urine and faeces. As a result, he requires incontinent pads day and night. It also recognises ‘[Mr W] has history of constipation, and he frequently removes his incontinent pad, but he does this repetitively throughout the day and night’.
72. On 9 March, the care plan notes ‘during personal care, [Mr W] is generally compliant and cooperative’.
73. The care home records of 22 April 2021 identify Mr W requires two carers to hoist him and he has a tendency towards constipation.
74. The DST states Mr W had a history of urinary tract infections (UTIs) but there were no recorded episodes during the period of review. Mr W’s periods of constipation was managed through prescribed regular medication and no evidence indicated this treatment was not effective.
75. Our adviser explains the available evidence fits with the DST descriptor of moderate, which says ‘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’.
76. In our adviser’s view there was no clinical evidence to support a higher weighting.
77. We have seen the consideration by the IRP was in line with the National Framework. We cannot see any indications of failings in the way the IRP considered this domain, and find it considered all the available evidence to make its decision.
Skin (including tissue viability)
78. Mrs A says her father’s needs in the skin domain were severe for the assessed period. The LRM and the IRP both weighted this as high.
79. The DST describes high in this domain as the following:
‘Pressure damage or open wound(s), pressure ulcer(s) with ‘partial thickness skin loss involving epidermis and/or dermis’, which is not responding to treatment OR Pressure damage or open wound(s), pressure ulcer(s) with ‘full thickness skin loss involving damage or necrosis to subcutaneous tissue, but not extending to underlying bone, tendon or joint capsule’, which is/are responding to treatment.
OR Specialist dressing regime in place; responding to treatment.’
80. Mrs A explains in her appeal documents her father has a breakage of skin damage to his back. She says this was a cyst which turned septic and became infected with MRSA. Mrs A says this is an ongoing issue. He had multiple treatments to heal the wound on his lower back which did not respond to treatment.
81. She told the IRP she felt the wound was ignored during the CHC assessment. Mrs A informed the IRP he had lesions on his back which never healed right up to the date of his death. Mrs A responded to the IRP’s questions about whether any treatment had been attempted to drain the lesions as there was an entry in the records, he had it drained in 2020. Mrs A explained it must have been from earlier as the nursing staff were suggesting it would need to be drained again.
82. Mrs A informed the panel he wasn’t referred to the tissue viability specialist, but she was concerned about the high waterlow score. She disputed the DST’s consideration of the lesion, as it said it healed but, in her opinion, it never did.
83. To give this domain a weighting of severe, the IRP would need to see the following:
‘Open wound(s), pressure ulcer(s) with ‘full thickness skin loss involving damage or necrosis to subcutaneous tissue, but not extending to underlying bone, tendon or joint capsule’ which are not responding to treatment and require regular monitoring/reassessment.
OR Open wound(s), pressure ulcer(s) with ‘full thickness skin loss with extensive destruction and tissue necrosis extending to underlying bone, tendon or joint capsule’ or above OR Multiple wounds which are not responding to treatment.’
84. The IRP considered the evidence in the records, together with verbal submissions heard during the panel meeting. It said in the absence of any specialist reports, or an objective grading from either the care home or tissue viability nurse (TVN), the panel would direct all parties to the appropriate descriptor within the DST and LRM which is:
‘Pressure damage or open wound(s), pressure ulcers with ‘partial thickness skin loss involving epidermis and/or dermis, which is not responding to treatment.’
85. The IRP took the view a weighting of high is a more accurate measurement of Mr W’s needs in the skin intensity domain and acknowledged the chronic nature of the lesion on his back as well as the need for regular dressing by nursing staff.
86. Evidence in the records show Mr W required assistance in the skin domain due to the ‘chronic nature of the lesion on his back, and the need for regular redressing by nursing staff’ as recognised by the IRP.
87. The GP records dated 4 March 2021 said Mr W’s wound was ‘healing nicely’ but on 15 October, an entry said the area was ‘breaking down again’. The treatment recommended was position changes, pain relief, and an addition of steroid cream. Our adviser says this confirms the chronic nature of Mr W’s wound.
88. The care home records referred to the risk of Mr W’s skin deterioration. For example, on 1 January, the records note ‘score: 21, Risk level: High Risk. Use high risk mattress and reposition and record’.
89. Evidence in the care home records suggests Mr W’s pressure areas were monitored frequently, and his dressings were regularly reapplied. For example, on 29 March, the records note ‘Dressing on the back side was changed this am per regime, washed by saline and covered by Activheal silicone border form… on diary to be changed 72 hours or if need be changed early please’.
90. While a waterlow risk assessment score identified Mr W was at a high risk (score 24) of developing pressure damage, the records do not suggest Mr W suffered any pressure damage during the period of review.
91. The records note Mr W had an abscess to his lower back which was redressed every third day, and no intervention was required via a specialist dressing regime or a tissue viability nurse in relation to this wound.
92. Our adviser says the records indicate the IRP considered Mr W’s needs in the skin appropriately and weighted it correctly considering the evidence in line with the National Framework.
93. Our adviser also explains the available evidence aligns with the DST descriptor of high, ‘Pressure damage or open wound(s), pressure ulcer(s) with ‘partial thickness skin loss involving epidermis and/or dermis’, which is not responding to treatment’. In their view, there was no clinical evidence to support a higher weighting.
94. We understand how concerned Mrs A was about her father experiencing ongoing skin damage. We recognise how she feels the weighting in the domain is not correct. We think the IRP assessed Mr W’s needs in the skin domain in line with the National Framework, and do not find any indications of failings.
Mobility
95. Mrs A says her father’s needs in the mobility domain were severe for the assessed period. The ICB and the IRP both weighted this as high.
96. According to the DST, high needs in this domain means:
‘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.’
97. A severe weighting in this domain is described by the DST as the following:
‘completely immobile and/or clinical condition such that, in either case, on movement or transfer there is a high risk of serious physical harm and where the positioning is critical.’
98. Mrs A informed the IRP she felt her father’s needs were higher than the weighting given by the ICB during the LRM in October 2022. She said Mr W was unable to walk, having had a history of falls, and was classified as a high falls risk. Mrs A said her father needs to be hoisted for all transfers and always had pain in his legs.
99. The IRP said it examined the written evidence in the case file, recognised Mr W was at risk of falls. It said he had very few falls in the immediate period prior to the CHC assessment completed in April 2021. The IRP also acknowledge he was unable to mobilise independently and was dependent on others for transporting him from his bedroom to the lounge in the care home, using a hoist and wheelchair.
100. The IRP concluded it did not find any clinical rationale for the weighting of severe, as Mr W’s positioning was not considered to be critical and there was evidence, he was not at high risk of harm. The IRP agreed with the LRM’s weighting of high.
101. We have looked at the evidence for this domain, and the DST refers to Mr W being unable to weight bear consistently and needing to be hoisted for all transfers. It says there was no evidence of contractures or of pain when been moved or handled, but he had poor sitting balance and spent long periods being nursed in bed.
102. When referring to the care home records, the evidence shows on occasions Mr W was found sat up, and has his position changed regularly. We can also see bed rails and bumpers were in place. For example, the care home records note on 5 April, ‘[Mr W] nursed on full bed rest with care staff assisting with delivery of personal care needs, bed rails and bumpers remain in place’.
103. We recognise Mrs A’s concerns her father was at high risk of falling, and this is evidenced in the records. For example, on 14 April 2021, the care home records note ‘moving and handling score: 83, Risk level: High Risk’.
104. After his assessment on 21 April, it was found Mr W was unsafe to stand, and it was noted he was non-compliant with no effort to assist in being manoeuvred. And the care home’s objective was ‘to maintain [Mr W’s] safety while in bed’.
105. On 22 April, the care home records identified Mr W is ‘unable to weight bear. Has to be hoisted by 2 carers. Requires frequent repositioning and is very high falls risk’.
106. The DST recognised Mr W was at high risk of falls, but no falls were noted during the assessed period.
107. Our adviser explains, the available evidence coincides with the DST descriptor of high, which says ‘Completely unable to weight bear and is unable to assist or cooperate with transfers and/or repositioning OR At a high risk of falls (as evidenced in a falls history and risk assessment).
108. Our adviser says there was no clinical evidence to support a higher weighting. As such, the conclusions of the IRP are supported by the available clinical evidence and as such are in line with the National Framework for NHS Continuing Healthcare.
109. We recognise Mrs A believes her father should have been given a higher weighting and how worried she was about his mobility and falling. We have seen the consideration by the IRP was in line with the National Framework. We find there is no failing in the way the IRP considered Mr W’s needs in this domain.
Communication
110. Mrs A contends the weighting of moderate given both by the ICB and the IRP and she believes it should be high in the communication domain.
111. The DST describes moderate needs in the communication domain as the following:
‘Communication about needs is difficult to understand or interpret or the individual is sometimes unable to reliably communicate, even when assisted. Carers or care workers may be able to anticipate needs through non-verbal signs due to familiarity with the individual.’
112. The DST describes high needs as the following:
‘Unable to reliably communicate their needs at any time and in any way, even when all practicable steps to assist them have been taken. The individual has to have most of their needs anticipated because of their inability to communicate them.’
113. Mrs A explained to the panel her father could not reliably communicate, and as staff knew him at the home, they were able to anticipate his needs rather than him communicating them. She answered the IRP’s question of whether he ever initiated a conversation independently, and Mrs A said he did not while he was in the care home.
114. In relation to the zoom calls, Mrs A explained her father did not want to be on these calls, he was not interested or bothered at all. She said Mr W only indicated any needs by shouting ‘help’.
115. The IRP recognised Mr W had a limited ability to indicate his needs, bearing in mind his poor vision and hearing loss. It said he did appear to shout out when he wanted something, and this when taken with him requiring full assistance from care staff who knew him, led the panel to aware the weighting of moderate. The panel thought it was a reasonable measurement of his communication needs.
116. Based on what we have seen, the evidence for the assessed period suggests the IRP considered Mr W’s communication needs in line with guidance and correlates with the discussion held.
117. For example, the care home records Mr W can indicate basic needs only (‘ask for a drink / pillow’). On 9 April the care home records identify Mr W can respond ‘yes or no’ to simple questions.
118. As Mr W was registered blind in his right and had difficulty with his hearing, the care records show appointments made with an ophthalmologist and a referral to the ear, nose, and throat (ENT) team. The care home records explain on [Mr W] will shout sometimes but his needs are not always understandable when he is shouting’.
119. On 22 April, the social care records note Mr W ‘is able to make simple decisions and choices but has to have more complex needs and risks anticipated’.
120. We sought input from our adviser on this domain, and our adviser explains the records align with the DST descriptor of moderate, which is ‘Communication about needs is difficult to understand or interpret or the individual is sometimes unable to reliably communicate, even when assisted. Carers or care workers may be able to anticipate needs through non-verbal signs due to familiarity with the individual’. There was no clinical evidence to support a higher weighting.
121. It can be upsetting when a family member cannot communicate in the way they used to. We find the IRP considered the available evidence in its discussion on communication, and appropriately weighted this in line with the National Framework.
Psychological and Emotional Needs
122. Mrs A challenges the IRP’s consideration of her father’s needs in this domain which both the panel and ICB weighted it as moderate. Mrs A believes this should have been weighted as high.
123. The DST describes moderate needs in this domain as the following:
‘Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, which do not readily respond to prompts, distraction and/or reassurance and have an increasing impact on the individual’s health and/or well-being.
OR Due to their psychological or emotional state the individual has withdrawn from attempts to engage them in care planning, support and/or daily activities.’
124. The weighting of high is considered as the following:
‘Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, that have a severe impact on the individual’s health and/or well-being.
OR Due to their psychological or emotional state the individual has withdrawn from any attempts to engage them in care planning, support and/or daily activities.’
125. In the appeal documents, Mrs A explains her father felt depressed most of the time, with the inability to express what he required. She says when she was visiting her father, the restlessness had a severe impact on his mental health and well-being.
126. Mrs A explained to the IRP, her father was usually agitated, unsettled, and frustrated. She responded to the chair’s question as to whether Mr W had any previous diagnosis of depression by explaining he did not. Mrs A said her father often told her he did not want to be alive as he had no quality of life. She explained he was always restless, with pain in his legs all the time.
127. We can see the IRP discussed Mr W’s psychological and emotional needs. It recognised the family felt due to his history of depression, and his anxiety, his needs should be considered at a higher level.
128. The panel stated Mr W was prescribed Trazadone 50mg at night and he had been taking this for some time. It referred to the records which did not include any prescription of antidepressants but found there was some evidence of agitation and anxiety. The IRP took the view this was affecting his ongoing health and well-being. It said this was being mitigated by the increase in his level of cognitive impairment.
129. The IRP fully supported the agreed weighting of moderate which confirmed by the LRM of October 2022, and said it was an accurate reflection of Mr W’s needs in this domain.
130. Our adviser says the records indicate the IRP considered Mr W needs in the psychological and emotional needs domain appropriately and weighted it correctly considering the evidence in line with the National Framework.
131. Looking at the records, the evidence shows Mr W could become anxious and agitated at times, however, he was prescribed medication with no input from the mental health team.
132. The care home records also show Mr W enjoyed activities. For example, on 31 March it notes ‘[Mr W] enjoyed other activities today as he received loads of letters of kindness’, and on 3 April, the records note he had ‘a 121 time with the activities co-ordinator today, 20 mins, enjoyed me reading his letters for him’.
133. The records also evidence on 22 April ‘[Mr W] had a zoom [call] with his daughter this morning. [He] interacted for a short while, then told his daughter to go as he’d had enough, 20 mins’. There is evidence is
134. The DST recognises Mr W required assistance to engage in the arranged care home activities and found there was no evidence Mr W presented as depressed or tearful. We could not find any evidence to show he was prescribed any antidepressant medication.
135. Our adviser says the evidence fits with the DST descriptor of moderate, which says, ‘Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, which do not readily respond to prompts, distraction and/or reassurance and have an increasing impact on the individual’s health and/or well-being’.
136. We understand Mrs A felt her father’s need were higher in this domain and how upsetting it can be to see a parent struggling. We think the IRP acted in line with the National Framework when assessing Mr W’s needs in this domain, as there was no clinical evidence to support a higher weighting.
Behaviour
137. Mrs A challenges the IRP’s consideration of Mr W’s needs in the behaviour domain and feels it should have been assessed as severe. Both the LRM and the IRP weighted this domain as high.
138. The DST considers high needs in this domain as the following:
‘‘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.’
139. Mrs A told the IRP during her father’s stay in the care home, he accused staff of removing his pads and clothing, and he would often shout at them. She referred to a care home entry of 27 March 2020, which said her father’s behaviour was triggered by loud noises. In terms of Mr W’s undressing, Mrs A informed the panel this usually occurred in the lounge. Mrs A also informed the panel she wasn’t aware of any incidents where her father was causing physical damage or harm to himself or others.
140. The IRP assessed the written evidence of any potential challenging behaviour and found there were episodes of shouting, resistiveness to some care interventions as well as non-compliance with medications.
141. It found some of the issues could be related to his worsening cognitive impairment but also a result of his poor vision and hearing.
142. The IRP concluded the weighting of a high was an accurate assessment of Mr W’s needs in the behaviour domain.
143. To give a severe weighting in this domain, the IRP would need to see the following:
‘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.’
144. Based on what we have seen, the evidence for the assessed period suggests the IRP considered Mr W’s behaviour needs in line with the National Framework and correlates with the discussion held.
145. On review, we can see there are several examples in Mr W’s records demonstrate incidences of challenging behaviour which fit the high descriptor.
146. There are several incidences of Mr W shouting and being agitated in the care records, for example, on 22 March, the care records note ‘No obvious trigger for behaviour shouting into the general environment no physical aggression’ and ‘loud vocally at times throughout the night’. Similar incidences are evident throughout the months during the assessed period.
147. On 26 March, the care home records note ‘behaviour triggered by noise from others, shouting into the general environment, no physical aggression’.
148. Care home records also say Mr W had a history of ‘grabbing staff inappropriately during personal care’. An entry on 10 February states, ‘[Mr W] was transferred back to bed for safety as agitated and unsettled’.
149. Our adviser explains the records coincide with the DST descriptor of high, ‘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’.
150. There is no clinical evidence to support a higher weighting. As such, the conclusions of the IRP are supported by the available clinical evidence and as such are in line with the National Framework for NHS Continuing Healthcare.
151. We understand Mrs A considers her father’s needs should have been weighted as severe and how challenging it can be to witness a change in a loved one’s behaviour. We have seen the consideration by the IRP was in line with the National Framework. We find there is no failing in the way the IRP considered Mr W’s needs in this domain.
Drug Therapies and Medication: Symptom Control
152. Mrs A told us she feels her father’s needs in this domain should have been assessed as severe. Both the IRP and the LRM considered Mr W’s needs as high.
153. According to the DST, high needs in this domain means:
‘Requires administration and monitoring of medication regime by a registered nurse, carer or care worker specifically trained for the task because there are risks associated with the potential fluctuation of the medical condition or mental state, or risks regarding the effectiveness of the medication or the potential nature or severity of side-effects. However, with such monitoring the condition is usually nonproblematic to manage.
OR Moderate pain or other symptoms which is/are having a significant effect on other domains or on the provision of care.’
154. The DST considers severe needs in this domain as the following:
‘Requires administration and monitoring of medication regime by a registered nurse, carer or care worker specifically trained for this task because there are risks associated with the potential fluctuation of the medical condition or mental state, or risks regarding the effectiveness of the medication or the potential nature or severity of side-effects. Even with such monitoring the condition is usually problematic to manage.
OR Severe recurrent or constant pain which is not responding to treatment.
OR Non-compliance with medication, placing them at risk of relapse.’
155. In her appeal submissions, Mrs A explains her father had a constant lesion on his back, which was a cyst that ruptured in September 2020, and he was diagnosed with sepsis. From September 2020 to the time she submitted her appeal, Mrs A says her father was having treatment due to its reoccurrence, constant pain, and non-responsiveness to treatment. She says her father was admitted to hospital on 4 September and discharged on 17 September.
156. In the IRP, Mrs A explained her father had unstable diabetes, which required close monitoring of his blood sugar levels together with the requirement for full assistance with taking his medication. Mrs A informed the IRP while she trusted the care home with his medication, his blood sugar levels could have been maintained better.
157. The chair considered the records which indicated Mr W’s blood sugar levels were taken twice a day, prior to his insulin injections being given. In terms of pain management, Mrs A informed the panel, her father had paracetamol regularly, but she was not aware of any other medication, and she was unsure why his insulin levels would get so low.
158. The NHS representative on the panel explained an individual could experience periods when it could drop such as infection or illness.
159. The IRP noted Mr W’s medication regime was reviewed while in hospital and on discharge to the care home, it was left to the staff to manage his diabetes with appropriate input from the GP.
160. The IRP referred to the domain descriptor of high and felt the weighting of high was appropriate which effectively captured Mr W’s needs. It found Mr W required full supervision and assistance with his medication, especially regarding insulin therapy and blood sugar monitoring.
161. The care records evidence Mr W’s blood sugar monitoring took place regularly. The care home records also note on 21 April, Mr W ‘needs to have his medication administered by staff due to deterioration in his cognition. He has no awareness into his medication regime’.
162. There were references in the GP records to Mr W’s diabetes, for example, on 22 January, ‘Request for home visit, raised blood glucose readings, vomited for 3 days’. The LRM refers to the social care records which state on 22 April, his medication was ‘adminisrered by staff and had insulin twice a day. Diabetes is stable following medication review’.
163. Our adviser explains the care home records confirm compliance with the medication regime on many occasions, and in their view, the records indicate the IRP considered Mr W’s needs in the drug therapies domain appropriately and weighted it correctly considering the evidence in line with the National Framework.
164. We cannot find evidence in the records to support a severe weighting in this domain. The records demonstrate Mr W’s medication was administered and monitored by an individual who was specifically trained for the task, and we can see the monitoring of Mr W’s condition was non-problematic to manage. We do not think there are any indications of failings in the way the IRP considered Mr W’s needs in this domain.
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
165. The IRP also applies an eligibility test to help it make a decision about a person’s CHC eligibility. The National Framework separates this test into four key characteristics: nature, intensity, complexity, and unpredictability. This test is used to establish if the quantity or type of a person’s care needs are more than what the local authority can provide. This indicates they have a primary health need, which in turn indicates they are eligible for CHC.
166. 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 when we are looking at whether the IRP properly considered the four key characteristics of Mr W’s needs.
167. Mrs A has told us she disagrees with the IRP’s consideration of each of the four key characteristics.
Nature
168. 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’.
169. Mrs A says in her appeal document, from the DST and her comments on the domains, she feels the nature of her father’s needs should be considered as a primary health need.
170. The IRP comprehensively considered Mr W’s needs in the nature key characteristic. It recognised Mr W had a range of medical conditions which impacted on his care needs. It referred to all the co-morbidities Mr W had and found evidence his care needs encompassed many of his care domains.
171. For example, a severe level of need was identified in cognition, with high level needs being found in four domains (skin integrity, mobility, behaviour, and in drug therapies and medication). The panel identified moderate needs in five domains (nutrition, continence, communication, psychological and emotional needs, and an in altered states of consciousness). It found low needs or no identified care needs in breathing or in other significant care needs.
172. The IRP recognised Mr W had significant cognitive impairment, and he was disoriented to time, place, and person. He also had no awareness to any risks to his safety and was totally dependent on others.
173. A mental capacity assessment was completed while in the care home, which found he lacked any capacity to make important decisions regarding his residence and care. The panel identified the care home had to closely supervise Mr W with personal care due to the established relationship between his cognition, communication, and anxiety.
174. The panel referred to his skin issues, including the non-healing lesion on Mr W’s back and recognised it was problematic to manage. It found there was input from the registered nurse on duty at the care home, and from his GP. The IRP did note there was no involvement from the tissue viability service who could have been contacted for advice and support.
175. It considered the nature of Mr W’s care needs relating to his behaviour and found he did display challenging behaviour which was through shouting, some resistiveness to care interventions, and inappropriate undressing in public areas. It said his shouting was a way of gathering the staff’s attention due to his poor sight and hearing.
176. The panel commented on the monitoring of Mr W’s medication, as well as maintaining an adequate level of nutrition due to his diabetes, as well as sufficient input and output. It commented on Mr W requiring full assistance with meals and fluids due to his immobility and cognition issues. The panel noted his anxiety and distress, as well as agitation with no apparent trigger for this. In the IRP’s opinion, any distress or anxiety did not have any significant impact on the care he received.
177. It also recognised Mr W had a history of cerebrovascular accident (CVA – medical term for a stroke), with some occasional episodes of loss of consciousness, which did not significantly increase the risk of any seizure but did require monitoring by care staff.
178. The IRP found most of Mr W’s care needs were of a reasonably moderate level, indicating a non-complex set of requirements which were effectively met by care staff in the care home, who followed a planned programme of care. It said he needed support and assistance to meet his activities of daily living, and to maintain his safety and security.
179. The panel concluded Mr W had a range of social and health care needs. It found the ‘quality’ of interventions required to manage his care needs were not, in themselves, over and above what a Local Authority could legally provide during the assessed period, as his care was planned, and overseen by registered nurses, together with input from his GP.
180. The IRP decided the nature of Mr W’s needs indicated he did not have a primary health need during the assessed period.
181. Based on what we have seen so far, the evidence echoes what was explained by both Mrs A and the IRP. Mr W had a vast amount of care needs, which he needed assistance with. On review of the available information, Mr W did not need any significant interventions from medical professionals to help care for him.
182. For example, staff were to closely monitor his medication regime to maintain an appropriate level of nutrition due to his diabetes, staff were to maintain a regime to ensure his needs were met due to his chronic lesion on his back and due to his immobility he needed help to transfer.
183. Our adviser explains there was evidence of consideration of all identified needs within the IRP and of application of the relevant tests. The IRP concluded there was no evidence within the nature of Mr W’s care needs associated with a Primary Health Need and this was supported by the available clinical evidence.
184. While Mr W had many needs, this was being managed effectively and in a timely manner within the limits of what the local authority could provide.
185. There is no evidence to suggest that caring for Mr W was problematic, as this was being carried out by professionals who knew Mr W, and how to address his needs. Numerous reviews and assessments were carried out to ensure Mr W’s needs were being adequately managed and hadn’t drastically changed.
186. Mr W’s needs were managed affectively the local authority. Therefore, we have seen no indications of failings in the IRP Chair’s reasoning that he did not have an overall high level of need in this key indicator.
Intensity
187. 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’)’.
188. In the appeal submission documents, Mrs A says from the DST and her comments on the domains, she feels the intensity of her father’s needs should be considered as a primary health need.
189. The report referred to the records, and said it indicated to the panel, most Mr W’s care needs were at a moderate to high level, and as such did not demonstrate any significant intensity of need within his care. It recognised Mr W’s care was delivered through a planned programme of care, supervised, and evaluated by a registered nurse, and with ongoing advice and input from his GP.
190. While the IRP acknowledged Mr W needed care 24 hours a day, with majority of his health and care needs, it found there was no evidence in the available records, or in Mrs A’s submission in this case, to show any significant ‘sustained’ or ‘intense’ needs at any point in the CHC review.
191. We have reviewed the material evidence and from viewing this, we can see Mr W did require a great deal of care and monitoring, but most of his needs were anticipated by his carers. Mr W was cared for on a one-on-one basis, apart from when moving and handling, as two carers were required for this.
192. The care Mr W needed was routine in its nature for his care staff, and not of a severity that wasn’t manageable. For example, we cannot see any referrals made to any specialist teams, and his care was overseen by his GP and a registered nurse.
193. The evidence also coincides with what the IRP said in relation to Mr W’s provision of care by staff. The records show two staff provided his manual handling care.
194. The care Mr W needed was routine in its nature for his care staff, and not of a severity that wasn’t manageable. For example, we cannot see any referrals made to any specialist teams, and his care was overseen by his GP and a registered nurse. This is evidenced in the records, and we have outlined this in the specific domains.
195. There is no evidence of severe departure from the care plans, or any significant changes to Mr W’s care due to an increasing level of intensity. There was no specialist outside intervention required.
196. Our adviser says the conclusions of the IRP are supported by the available clinical evidence.
197. We do not consider there to be any indications of failings in the IRP’s decision-making process about the intensity of Mr W’s needs. The IRP’s reasoning is supported by the records and in line with the National Framework.
Complexity
198. The IRP considered the complexity of Mr W’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’.
199. Mrs A commented she felt the complexity of her father’s needs constituted as a primary health need. Mrs A informed the panel her father did not go into a care home by choice, he and his family had to wait for a care home which would be able to tend to his complex needs. Mrs A raised her father could recognise her only by voice and not by face.
200. She informed the panel she had been disappointed as she wanted to be involved in the DST meeting held in April 2021 but had not been involved or invited. In terms of Mr W’s behaviour, Mrs A strongly disagreed her father participated in any aspect of his care by choice, as she found 28 dates referring to the evidence in the records which showed his challenging behaviour.
201. Mrs A’s main criticism of the care home was Mr W was alone a lot, and only when he needed medication or food. She said Mr W’s needs were met but if the care home had done more, he could have had a better quality of life. She also informed the panel the care staff could have interacted more or attempted to get the family often involved.
202. The report shows us the panel considered how Mr W’s care needs did encompass over several domains. For example, it referred to the link between Mr W’s cognitive impairment and the support required with his communicative abilities.
203. It specifically discussed the link between his continence, and skin integrity needs, as well as maintaining personal hygiene and ensuring his prescribed medication was given.
204. It set out how the carers managed Mr W’s needs in line with the care plans, which did not alter month to month.
205. The IRP decided this key characteristic did not indicate a primary health need for Mr W. It set out why it thought the level of skill needed to manage the interaction of his needs was not complex, and that none of the interactions posed a significant barrier to the carers looking after him.
206. From viewing the available information, it is apparent that there are many interactions between several of the care domains, which did impact on Mr W’s day to day living. For example, due to his cognition, he needed assistance with his medication, and continence issues.
207. From viewing the available records, we have seen that there was no need for any specialist input or knowledge to care for Mr W. His carers and staff involved in his wellbeing did not find it difficult to care for Mr W, as they were able to reach out to his GP as and when required for further input. The services and help he required were not above what the local authority could provide and were not specialist in their nature.
208. Our adviser agrees there is no evidence that staff found Mr W difficult or problematic to care for because of the interactions between his needs. There is no evidence to suggest staff had to frequently change their approach to care for his, due to the interaction of his needs.
209. We understand why Mrs A had concerns about the consideration. The IRP gave the level of detail we would expect when assessing the complexity indicator. Its considerations were in line with the National Framework, and it’s reasoning was supported by the available records and documentation.
Unpredictability
210. As per the National Framework, ‘Unpredictability describes 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’.
211. Mrs A says in her appeal documents from the DST and her comments on the domains, she feels the unpredictability of her father’s needs should be considered as a primary health need.
212. The IRP has provided a review of the unpredictability of Mr W’s needs in its report. It concluded his needs were stable on a day-to-day basis in the context of a gradual decline in his condition. It recognised he had significant cognitive impairment, required management of his diabetes and the need for monitoring of his skin integrity and nutrition. While he required timely and appropriate care, the IRP commented the totality of Mr W’s needs could not be deemed to be unpredictable.
213. It found Mr W was appropriately place in the correct environment to meet his needs, cared for by staff with the necessary skills and knowledge to manage his needs. The IRP found no evidence there was a requirement for additional specialist services to be involved on a regular basis, outside those core NHS services that would be available to all.
214. Having considered the submissions from Mrs A and the IRP, we have not seen evidence of fluctuating changes in Mr W’s needs, and his care did not have to be drastically amended due to any changes in his needs.
215. As both Mrs A and the IRP have acknowledged, Mr W did suffer from challenging behaviour, and cognitive decline which impacted his needs in other domains. However, the staff anticipated and monitored this, and had a plan in place to act accordingly and in a timely fashion if Mr W experienced any fluctuations in his condition.
216. We cannot see any evidence in the records to support Mr W required additional support or skill to manage his care needs, as he was being supported by the care staff with appropriate care plans put in place.
217. Our adviser found the IRP assessed Mr W’s needs in line with National Framework and we can see there is clear evidence it considered if he demonstrated sudden deterioration or a change.
218. We can see the IRP clearly addressed the ‘degree to which needs fluctuate’ and if there was any ‘challenges in managing them.’ The IRP considered the level of need required to meet Mr W’s needs did not often change and the level of support required remained the same.
219. We recognise how distressing it can be to witness a family member have different behaviours, and the difficulties they encounter due to their health conditions. The IRP’s conclusions can be supported by the evidence we have seen. There are no indications of failings in this part of the IRP’s consideration, and it is in line with the National Framework.
Procedural concerns
220. Mrs A has also raised concerns regarding the assessment process as she had not been involved in the CHC review of April 2021. She explains it says she was invited to attend the assessment, but she declined. She says she was not invited, and she was never informed about this assessment. Mrs A says she would have wanted to participate as her father’s health LPA.
221. She says she was not happy with the way the DST had been completed and she was not in an agreement that the information contained on the DST was an accurate reflection of her father’s needs. Mrs A says the four key characteristics of her father’s care needs were not fully explored.
222. We understand this was upsetting and disappointing for Mrs A.
223. Our role is to look at how NHSE considered Mrs A’s concerns, and not the actions of the ICB directly.
224. In its report, the IRP acknowledged Mrs A raised valid concerns about the ICB’s management of the CHC review process. Bearing in mind, Mr W lacked capacity to make important decisions, and Mrs A had an LPA on behalf of her father, the IRP shared its concerns about the non-involvement of Mr W’s family in the initial process.
225. The panel was also concerned about the delay in the normal assessment timings which are laid out in the National Framework, which are three and 12 month reviews of an individuals’ care and potential CHC eligibility. It recognised individual ICB’s set their own timings for the review process due to COVID-19.
226. The IRP found the ICB completed a robust review of Mr W’s needs at the time of the initial CHC assessment in April 2021, as his care needs had been identified and rationales were provided in support of the recommendations.
227. The ICB did find the ICB’s process lacked the involvement of family and participation of Mr W. It recommended the following:
• ‘The ICB should ensure that individuals and their families are fully informed of the appropriate CHC review process.
• The ICB should ensure that clear lines of communication are initiated between the family and the ICB and any involved parties, including families.
• The ICB should urgently review its information governance arrangements to ensure families and representatives are given every opportunity to participate in the CHC process in line with the National Framework.
• The ICB should endeavour to follow closely the guidance laid out in the NHS National Framework for CHC regarding the timings of CHC Assessment and Review.’
228. We can see the IRP took note of Mrs A’s concerns and recommended actions for the ICB to undertake. The role of the IRP was to consider the actions of the ICB within a set timeframe which it has done. There is nothing more we would have expected the IRP to do. We do not consider there was a failing.
229. We understand how important this complaint is for Mrs A and her family. We also recognise this decision will be disappointing for Mrs A. We hope our consideration of her complaint reassures her we have taken her complaint seriously and have undertaken a thorough consideration of the issues.