18. 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’ (2022) when it considered whether Mrs A was eligible for CHC. The National Framework sets out the principles and processes ICBs and NHS England should follow when considering if someone is eligible for CHC.
19. 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.
The eligibility decision
17.We now turn to the review of the IRP’s decision-making. We will look at the level of needs in the contested domains and the four key characteristics.
18.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.
Did the IRP get all the relevant evidence?
20. Paragraph 219 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.’
21. We have reviewed the information provided to us in NHS England’s case file and we can see the IRP had access to the following: • Mrs A’s care home records, GP records, hospital and social service records, risk assessments and district nursing records • correspondence from Mrs Q and her representative, which includes her views and concerns about her eligibility for CHC funding • the decision support tool (DST) and local resolution meeting documentation.
22. We can see there are no obvious omissions in the documents and evidence NHS England considered. We are satisfied there is no indication of a failing in how the IRP established all the appropriate and relevant clinical facts. The IRP had access to information clearly detailing Mrs A’s needs in the period under consideration.
Before it made its decision, did the IRP consider all the relevant evidence
23. 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 Q’s evidence, including with her on the day. We can see it included this in some detail across the domains. 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.
24. Paragraph 219 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?
25. Under this question, we look at any disputed weightings in the care domains and how the IRP considered the well managed needs principle.
26. Mrs Q disagrees with how the IRP determined the mobility, psychological and emotional, and behaviour domains.
Mobility
27. Mrs Q disputes the IRP’s findings in the mobility domain. She says it should have been weighted as severe. The IRP said her needs were moderate between 27 January and 1 February 2021 and high after that.
28. Mrs Q says the IRP did not give sufficient weight to the possibility of harm to her mother. She says Mrs A was on anti-platelet medication which could and did cause her severe bruising and bleeding if she was not moved correctly. She says this risk was on her care plan and there was evidence from the district nurse of her suffering bruising to both sides of her abdomen. She says the ICB agreed there were issues with the care Mrs A was given during the pandemic, which shows her needs were objectively beyond what the local authority could provide. She also says her mother was unable to mobilise on her own and had a history of serious bed sores, and could not use her call bell. She said her mother was therefore very vulnerable.
29. The IRP said it accepted Mrs A was effectively immobile after her stroke, but her carers did not need to use exceptional caution to move her and it did not think any harm had arisen when they did. It said the severe weighting is meant for more severe cases than Mrs A and any thoughts about possible harm would be speculation.
30. The descriptor for a moderate weighting for this domain is:
‘Not able to consistently weight bear or Completely unable to weight bear but is able to assist or cooperate with transfers and/or repositioning.
or In one position (bed or chair) for the majority of time but is able to cooperate and assist carers or care workers.
or At moderate risk of falls (as evidenced in a falls history or risk assessment).’
31. The descriptor for a high weighting is:
‘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.’
32. The descriptor for a severe weighting is:
‘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.’
33. We asked our adviser about this. They said the evidence supports the IRP’s decisions on Mrs A’s mobility. The records show Mrs A was independently mobile but very unsafe at the start of the review period. This was because she would try to walk too quickly and would also try to do so without assistance from her carers. She was at risk of falls and would forget to use her walking frame.
34. This is in line with the moderate descriptor, as Mrs A was at risk of falls and was not able to consistently bear weight, but could move around herself.
35. The records show Mrs A was being nursed entirely in bed after this period. This meant she was unable to weight bear. We can see she was at risk of bruising. This would have been painful for her and distressing for Mrs Q to see.
36. The severe descriptor says someone’s condition must mean that, when they are moved or transferred there is a high risk of serious harm and their positioning is critical. The records do not indicate Mrs A’s positioning was critical such as, for example, it otherwise being at a risk to her life. Her care plans do not say this was a concern or any further specialist help was needed when she was being moved.
37. We can see the IRP considered Mrs Q’s views on this domain. It commented on Mrs A’s needs in detail. Mrs A clearly had significant needs around her mobility, which made life more difficult for her. When we weigh up the evidence, it appears the IRP acted in line with the National Framework and DST guidance when it considered Mrs A’s needs in this domain. There is no indication of what the IRP would have needed to see to give a higher weighting here. We have not seen indications of a failing regarding its decision in this domain.
Psychological and emotional needs
38. Mrs Q disputes the IRP’s findings in this domain. She says her mother’s needs were moderate after 2 February 2021. She says the IRP wrongly said Mrs A’s non-involvement in activities and other actions were down to her cognition and capacity and mobility limitations, but this ignored that her mother could not engage in care planning. She says the IRP overlooked that any disruption to Mrs A’s needs was linked to her cognition problems.
39. The IRP said Mrs A’s needs were low after her stroke and she could be distracted or reassured when anxious.
40. The descriptor for low needs for this domain is:
‘Mood disturbance, hallucinations or anxiety symptoms, or periods of distress, which are having an impact on their health and/or well-being but respond to prompts, distraction and/or reassurance.
or Requires prompts to motivate self towards activity and to engage them in care planning, support, and/or daily activities.’
41. The descriptor for moderate needs is:
‘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 most attempts to engage them in care planning, support and/or daily activities.’
42. We asked our adviser about this. They said the records support the IRP’s decisions. The records do not indicate Mrs A experienced periods of distress or anxiety, or hallucinations. We have not seen indications her emotional state impacted on her carers’ ability to provide care. She had not been referred to mental health services for her psychological and emotional needs and did not have a specialist care plan for this aspect of her care.
43. We can see Mrs A did struggle more with her sleep patterns towards the end of her life. She went from sleeping soundly to not sleeping well. But the records do not show her emotional and psychological wellbeing had an increasing effect on her overall care needs. Our adviser also said Mrs A’s cognitive impairment impacted on her ability to engage in care planning, rather than her psychological and emotional state.
44. We can see Mrs A was not able to engage in various activities and her needs in this domain changed during the review period. We understand Mrs Q’s concerns about her mother’s needs here. When we weigh up the evidence, it appears the IRP acted in line with the National Framework and DST here. We have not seen indications of what it would have needed to see to give a higher weighting in this domain. We do not think it got something wrong here.
Behaviour
45. Mrs Q disputes the IRP’s weighting of this domain, which were no needs and then low. She says her mother was regularly distressed at nighttime and was effectively left alone. She felt Mrs A’s medication regime did not resolve her behavioural issues and that she was unsettled for a long time after moving back into the home. She says Mrs A’s needs were moderate.
46. The IRP felt Mrs A was not resistant to care and her behaviour posed only a very low risk to herself or others. It says Mrs Q said her mother was often so sleepy during this time she was not aware what was happening around her and so was compliant with her care.
47. The descriptor for no needs for this domain is ‘no evidence of ‘challenging’ behaviour.’
48. The descriptor for low needs for this domain is:
‘Some incidents of ‘challenging’ behaviour. A risk assessment indicates that the behaviour does not pose a risk to self, others or property or create a barrier to intervention. The individual is compliant with all aspects of their care.’
49. The moderate descriptor for this domain is:
‘‘Challenging’ behaviour that follows a predictable pattern. The risk assessment indicates a pattern of behaviour that can be managed by skilled carers or care workers who are able to maintain a level of behaviour that does not pose a risk to self, others or property. The individual is nearly always compliant with care.’
50. We asked our adviser about this. They said the IRP had weighted Mrs A’s needs in line with the National Framework, for both when it said she had no or low needs.
51. We can see from the records Mrs A did have some episodes where she would shout out. The records do not indicate she was either physically or verbally aggressive in a way which posed a risk to herself, others or property. She did not require carers with specialist skills in this area. This is what we would expect to see for the ICB to have given a higher weighting.
52. We can see the account Mrs Q gives of her mother sleeping and not challenging her care needs in this domain aligns with the low descriptor. We think the IRP made its decision in line with the National Framework here.
Did the IRP apply the eligibility tests properly and reach an evidence-based conclusion about them?
53. Mrs Q disagrees with how the IRP considered the four key characteristics, which it used to determine whether Mrs A had a primary health need. She says she agrees several of her mother’s needs were not high or severe. But she thinks the IRP did not consider sufficiently carefully how her needs interacted, particularly her cognition and medication. She does not think the IRP took enough account of evidence from social workers.
54. She says the IRP completely ignored that Mrs Sage had been fast tracked by the hospital after her stroke, but due to pressures of the pandemic was sent back to a home which could not cope with her needs (and against medical recommendations). She says the ICB agreed with her that the home could not cope with her needs and says her mother’s DOLS said she was ‘high risk’.
55. She also says the IRP made inappropriate and subjective comments about her mother’s care in the skin domain, which are contradicted by Care Quality Commission (CQC) reports into the home. She says this likely impacted on its four key characteristics decision and shows the IRP was biased.
56. The IRP said the needs could reasonably be managed by a local authority. It said there was no primary health need for any of the four key characteristics and her needs were met entirely by the home and her GP.
57. Practice guidance 3 (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. However, the National Framework does not expect an organisation to prescriptively answer each question – they are prompts. The IRP also needs to consider the records from the period under review.
58. For the nature characteristic, the IRP needs to consider the particular characteristics of an individual’s needs (which can include physical, mental health, or psychological needs), and the type of those needs. This also describes the overall effect of those needs on the individual, including the type (‘quality’) of interventions required to manage them.
59. We asked our adviser about this. They said the records show the IRP had considered all of the evidence presented to it when making its decision. We can see it described now Mrs A’s needs interacted with each other. We can see the IRP considered Mrs A’s care plans and how her needs were met. We have not seen indications Mrs A needed specialist care.
60. The IRP said Mrs A’s care was routine and not above what a local authority could provide. When we weigh up the evidence, we have not seen indications the IRP got something wrong when making its decision on this characteristic.
61. The intensity characteristic is about both extent (‘quantity’) and severity (‘degree’) of the needs and to the support required to meet them, including the need for sustained or ongoing care (‘continuity’).
62. We can see the IRP considered the totality of Mrs A’s needs and the support she needed as a result in its report. It said she needed care across a number of domains, but she was able to act independently in a number of areas. It said Mrs A never needed more than two carers to carry out procedures for her and there was no evidence her care interventions were exceptionally prolonged or protracted. It said the carers were able to meet her care plan without needing to develop further skills or get specialist support.
63. We asked our adviser about this. They said the IRP had considered all of the evidence when making its comments and considerations. They said the records supported the IRP’s decision on this characteristic.
64. We can see the IRP had the prompt questions in mind when it considered the intensity of Mrs A’s needs. We have considered Mrs A’s records and have not seen evidence the intensity of her needs indicated a primary health need at that time. When we weigh up the evidence, we have not seen indications the IRP got something wrong when making its decision on this characteristic.
65. The complexity characteristic is concerned with how the person’s needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s) and/ or manage the care. It may also include situations where an individual’s response to their own condition has an impact on their overall needs, such as where a physical health need results in the individual developing a mental health need.
66. We asked our adviser about this. We can see the IRP report considered the complexity of Mrs A’s needs, including the interactions between her needs in the different domains. Our adviser said the records indicate her care could be delivered by her carers following a care plan which had been assessed, planned and monitored by a registered general nurse. We cannot see from the records Mrs A’s care was difficult or complex to manage, nor did she require regular, intensive input from a specialist team.
67. We can see the IRP had the prompt questions in mind when it considered the complexity of Mrs A’s needs. When we weigh up the evidence, we have not seen indications Mrs A’s care needs were complex to manage at that time. There are no indications she needed specialised medical support or carers or that her needs were beyond what the local authority could provide. The IRP appears to have described her needs here. We do not think it got something wrong when it considered the complexity characteristic.
68. The National Framework says the unpredictability characteristic is about the degree to which needs fluctuate and thereby cause challenges in their management. It does not mean whether everything a patient does can be predicted.
69. We asked our adviser about this. They said the IRP considered the evidence presented and made its decision in line with the National Framework. They said there were interactions between Mrs A’s domains which were influenced by her underlying conditions. But the records do not show her needs fluctuated unduly on a daily basis or that her care plans required amendment as her care needed to change suddenly. The records do not indicate her care was unpredictable to manage.
70. The IRP appears to have described her needs here in line with what the evidence shows. We have not seen indications of the things we would expect to see which would indicate Mrs A’s needs were unpredictable. When someone has unpredictable needs, we would expect to see frequent changes in their care plans, or frequent need for carers to intervene outside of the care plan. There is no indication this was the case for Mrs A. When we weigh up the evidence, we have not seen indications the IRP got something wrong when making its decision on this characteristic.
71. We can see the IRP looked at how Mrs A’s needs interacted in its consideration of the four key characteristics. It did so in particular in its consideration of the nature characteristic. It did not specifically consider how Mrs A’s cognition and medication needs interacted. We understand why Mrs Q is concerned about this. We can see the IRP highlighted Mrs A’s cognitive needs were severe and her medication needs were low but became high in the last week of her life, when Mrs A needed the assistance of skilled carers. We can see it considered the extent to which Mrs A needed care which went beyond that which a local authority could provide for each characteristic. It said her cognition needs in particular impacted on other domains and explained how this was the case, especially for her communication needs. When we weigh up the evidence, we think the IRP did consider how Mrs A’s needs interacted in line with the National Framework.
72. We understand why Mrs Q thinks Mrs A had a primary health need at this time. She was clearly not well. When we weigh up the evidence, we think the IRP report explained Mrs A’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. we have not seen any indications her needs or care plan to deal with these changed suddenly or unexpectedly or that her care was particularly difficult to manage. Carers appear to have known how to deal with her and did not need a higher level of skill or training to do this. It appears the IRP considered the Mrs A’s needs in the four key characteristics in line with the National Framework. We have not seen an indication of a failing here.
73. We have considered the IRP’s comment that it was impressed with how successfully carers had managed Mrs A’s needs in the skin domain. The National Framework says any agency making a decision about a primary health need must be careful not to misinterpret the level of a person’s need because it is well-managed. But it is important that it takes into account how the carers met a person’s needs. From an independent point of view, we cannot see any indication this made the IRP’s decision biased. The IRP also had to base its decision on Mrs A’s needs, rather than the adequacy of the care she was getting in the home. So it could not consider what the CQC said about the home in making its decision. We can understand Mrs Q’s concerns about whether her mother was getting the care she needed.
74. We recognise how stressful this process has been for Mrs Q. We hope our decision reassures her that the IRP made its decision as it should.