11. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong. We have done this and have not found any indications that something went wrong when NHSE made its decision.
12. Whether or not an individual is eligible for NHS continuing healthcare funding is a discretionary decision. It is our role to decide whether NHS England’s IRP acted in line with the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (July 2022) when it considered whether Mrs A was eligible for CHC. The National Framework sets out the principles and processes ICBs (previously CCGs) and NHS England should follow when considering if someone is eligible for CHC.
13. 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.
14. 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.
15. To help us reach a decision, we have carefully considered the information Mrs I provided alongside the file the IRP considered. 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. Mrs I has told us she disagrees with the IRP’s consideration of the mobility and communication domains.
16. We can see the IRP had access to all the information the ICB used to make its decision. This included the following:
• Summary of Mrs A case including a chronology of events • Decision support tool dated 19 August 2022 and reviewed on 30 August 2022 • Checklist decision dated 8 April 2022 • Local resolution meeting minutes and outcome letters • Correspondence between Mrs I/her representative and the ICB/ NHSE her request for an IRP which included her written submissions • Care home records • GP records • Social service records • Other professional records
17. We also have a copy of the IRP’s report. The report documents the submission Mrs I and her representative gave in person.
18. Mrs I says the IRP did not consider the letter she submitted from a consultant geriatrician. Her representative says they asked the IRP if it wanted them to go through their written submissions and the IRP said this was not necessary as they had them.
19. We can see the IRP had access to information detailing Mrs A’s needs. There is no obvious omission in the documents and evidence. The IRP considered the information in the care records, GP records, dietitian’s notes and professional visits notes. This included the letter from the consultant geriatrician dated 22 May 2022. It is clear the IRP had access to all the information the ICB used to make its decision.
20. We have looked at the information in the IRP report and considered how the panel discussed all the available evidence when it considered the disputed domains. We acknowledge Mrs I and her representative wanted to go through their written submissions at the IRP. We can see the IRP gave Mrs I and her representative an opportunity to provide verbal evidence during the meeting and it had access to their written submissions. We can see the IRP took into account her views and that of her representative throughout its review and in the care domains. This is detailed in section 7 and section 9 of the IRP report which outlines the family’s views on the domains and the four key indicators.
21. Mrs I has provided us with a copy of the consultant geriatrician’s letter dated 11 July 2023. We would not have expected the IRP to draw its conclusions from this letter as it was outside the period it was considering.
22. We are satisfied there is no indication of a failing in how the IRP established all the appropriate and relevant clinical facts. We can also see the IRP had the National Framework in mind when it discussed its weighting of each domain and key characteristics. We think the IRP acted in line with the National Framework here.
Care domains
23. Mrs I via her representative has told us she disagrees with the IRP’s consideration of the mobility and communication domains.
Mobility
24. The mobility domain was not disputed at the DST and local resolution process. It was agreed Mrs A had a high level of need in this domain. At the IRP Mrs I and her representative considered Mrs A’s needs in this domain were severe.
25. The DST descriptor for severe says:
‘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.’
26. Mrs I’s representative says Mrs A was ‘locked in a foetal position’ and movements in her hands and feet caused her pain. She needed her carers to move her every couple of hours using a slide sheet to avoid bedsores. She says to move her to another room or hospital required the assistance of paramedics.
27. The ICB said her needs in this domain were high and the IRP weighted it as high too.
28. The DST descriptor for high says:
‘Completely unable to weight bear and is unable to assist or cooperate with transfers land/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.’
29. We can see the IRP had a discussion about Mrs A’s needs in this domain. Mrs I and her representative gave their account of Mrs A’s needs. The IRP weighed up their concerns to see whether a higher weighting may be appropriate. It acknowledged Mrs A was bedbound and could not assist staff in repositioning her. It said this happened several times a day. However, it did not consider she was ‘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.’
30. We think the IRP acted in line with the National Framework when it considered Mrs A’s needs in this domain.
31. At the IRP meeting Mrs I and her representative felt Mrs A’s needs were severe because she was bedbound and needed 2 carers to position her and she initially needed paramedics to move her from one location to the another. She needed pain medication to move her. Mrs A had a level of pain relief all the time, via weekly sevodyne transdermal patches. She had other pain relief to relieve contractures. They said she was at serious risk of injury if she was not moved properly.
32. The records show Mrs A was at moderate risk of falls. She had a history of falls but no recent falls. She was bed bound with contractures of all four limbs resulting in her being in a foetal position in bed. The IRP said Mrs A was bedbound and could not assist care staff when she was repositioned. The ICB representative at the IRP said Mrs A was administered Oramorph as PRN only and this was 30 minutes before hand care. It was not used to for comfort or pain relief and no advice was sought from health professionals about her contracted hands or problematic repositioning.
33. The IRP said Mrs A was being repositioned regularly by care staff and it acknowledged the difficulty encountered in repositioning her safely. The IRP said staff had to be careful when they provided personal care and management of her skin and pressure areas. The IRP said Mrs A was being repositioning regularly by care staff with the use a slide sheet. The IRP said Mrs A needed a careful approach and handling which was important rather than the position she was had to be place in. The IRP said the weighting of high was appropriate as it described a person who would have ‘involuntary spasms or contractures placing the individual or others at risk’
34. We understand Mrs I believes the weighting should have been severe. We recognise how challenging it is to see a family member’s health deteriorate. There is no evidence that Mrs A was completely immobile and/or clinical condition where there is a high risk of serious physical harm and where positioning is critical, which is what the IRP would have needed to see to give a severe weighting in this domain.
35. It appears the IRP considered this domain in line with the National Framework and the DST descriptors. We can see no indication of a failing.
Communication
36. Mrs I and her representative considered Mrs A’s needs in this domain were high.
37. The ICB and the IRP agreed Mrs A’s needs in this domain were moderate.
38. The records show on 19 August 2022 the ICB completed a DST and said Mrs A’s needs in the communication domain were high. Mrs A’s eligibility decision was not yet finalised and on 30 August 2022 following further discussed the weighting for this domain was revised to low. At the LRM Mrs I said she felt her mother’s needs in this domain were high. At LRM there was a discussion about Mrs A needs in this domain and the records show Mrs I agreed her mother’s needs in this domain were moderate.
39. Mrs I and her representative have told us they considered Mrs A’s needs in this domain were high. They say in their written submissions requesting an IRP they said her needs in this domain were high and this was not considered by the IRP. We understand she feels the IRP disregarded her written submissions. We can see both Mrs I and her representative were present at the IRP hearing. They had the opportunity to present their verbal views in this domain and raise any disagreement with the ICB and IRP’s consideration. We cannot see they raised or disagreed with domain weighting at the IRP. As there was no dispute between the parties, we cannot consider this domain further.
40. It appears the IRP considered this domain in line with the National Framework and the DST descriptors. We can see no indication of a failing.
Procedural concerns
41. Our role is to look at how NHSE considered Mrs I’s and her representative’s concerns and not the actions of the ICB directly. his is because we would expect the IRP to have acknowledged any errors by the ICB that the complainant raised with NHSE, considered the impact and made recommendations.
42. Mrs I’s representative says the original MDT recommendation was overturned without consultation. We recognise Mrs I and her representative are of the view the procedural issue raised an impact on the overall eligibility decision.
43. We can see at the IRP Mrs I and her representative raised concerns about the ICB’s process, details of which can be found at section 14 to 16 of the IRP report. They raised concerns about the MDT changing its decision and how this was not clear. They said they were not notified the decision had been deferred. The IRP considered the concerns and the ICB representative explained the case was deferred and it had been sent back to the MDT with a request for more evidence in support of the recommendation. The ICB apologised for the miscommunication and acknowledged this should have been fully explained to Mrs I.
44. The IRP said the ICB had conducted a fair assessment, but it acknowledged there were valid concerns about the delays in undertaking the CHC assessment and with communication of the conduct and outcomes of the assessment. It recommended the ICB should ensure individuals and families are fully involved in the CHC process and ensure CHC assessment should be completed within the timescales detailed in the National Framework.
45. We are satisfied the process issues found by the IRP would not make a difference to the eligibility decision. It would not have changed its overall decision that Mrs A was not eligible for CHC. This is because the IRP fully considered the evidence presented in respect to the domains of care and the nature, intensity, complexity and unpredictability of those needs. This is how it weighs up all the evidence to determine whether the person has a primary health need.
Summary
46. The IRP showed it applied the National Framework when it considered Mrs A’s CHC eligibility.
47. We recognise Mrs I’s and her representative’s account and that they disagree with the IRP’s decision. We do not wish to take away from their account or what they have told us about Mrs A’s needs.