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.
12. It is our role to decide whether NHS England’s IRP made the decision that Mrs R was not eligible for NHS continuing care in line with the National Framework. We cannot question discretionary decisions when they have been made without maladministration (fault). This includes decisions about eligibility for NHS continuing care. So, we can only uphold a complaint about an eligibility decision if there is some specific fault in the way the IRP reached the decision. Such decisions are based on clinical judgements and opinions.
13. The purpose of the IRP is to review the procedure followed by the CCG in making a decision about a person’s eligibility, or the primary health need decision by the CCG. In reaching a view about whether the CCG followed the correct process and correctly applied the eligibility criteria, the IRP can: •recommend the CCG should reconsidered the case and address any faults identified in the process, or •reach a view as to whether the individual should or should not be considered to have a primary health need.
14. When we look at a complaint about an IRP, we consider whether it took account of all the relevant information provided to it in reaching its decision. We have considered the two domains that remain in dispute following the IRP, and the four key indicators.
Cognition domain
15. The family complain this domain should have been weighted as high needs. This is defined as ‘Cognitive impairment that could, for example, include frequent short-term memory issues and maybe disorientation to time and place. The individual has awareness of only a limited range of needs and basic risks. Although they may be able to make some choices appropriate to need on a limited range of issues, they are unable to consistently do so on most issues, even with supervision, prompting or assistance. The individual finds it difficult even with supervision, prompting or assistance to make decisions about key aspects of their lives, which consequently puts them at high risk of harm, neglect or health deterioration.’
16. The IRP concluded this domain as moderate needs. Moderate needs in this domain is defined as ‘Cognitive impairment (which may include some memory issues) that requires some supervision, prompting and/or assistance with basic care needs and daily living activities. Some awareness of needs and basic risks is evident. The individual is usually able to make choices appropriate to needs with assistance. However, the individual has limited ability even with supervision, prompting or assistance to make decisions about some aspects of their lives, which consequently puts them at some risk of harm, neglect or health deterioration.’
17. The representatives (Compass) state the Panel’s use of a lack of a formal diagnosis of dementia to justify the ‘moderate’ level of need is a breach of the National Framework. They state while the IRP considered the available evidence, they failed to consider this domain in line with the National Framework and DST descriptors.
18. The IRP took information from Compass and recognised the family advocated for high needs in this domain. The Chair of the Panel asked where the dementia diagnosis was made, as there was no record of it in the notes, and Compass confirmed this and said it came from the family. The Panel noted there was a record of consent to discharge Mrs R which states Mrs R had capacity. The Panel also considered Mrs R understood commands, recognised family, and could respond to questions.
19. The IRP noted the representatives felt Mrs R did have dementia, but there is no record of assessment or diagnosis in the notes. The Panel considered there was some cognitive impairment, and Mrs R had had a major stroke. The Chair noted Mrs R understood hierarchy and the need for her to take medicine, eat, to be turned, and care input for her continence. The Panel referenced specific points in the records to support its view that she had capacity, had some ability to understand risks and her safety, and recognised family members.
20. We have reviewed the information that was made available to the IRP in its consideration of this domain. The details of care needs whilst Mrs R was in hospital explained whilst her stroke initially impacted on her cognition, and she struggled to retain short term information, she improved significantly following ongoing treatment and therapy sessions. The care home records on 12 July 2023 states Mrs R can make her needs known within her capacity. The notes on 8 May 2023 state she is able to express her care needs.
21. We have therefore not identified any indications of failings in relation to the IRPs consideration of this domain.
Behaviour domain
22. The family complain this domain should have been weighted as moderate needs. Moderate needs in this domain is defined as ‘‘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.’
23. The IRP concluded low needs in this domain. Low needs in this domain is defined as ‘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.’
24. The IRP noted the representative’s oral submissions, and the representative explained Mrs R was showing some resistance to necessary care. She was noted to refuse fluids and food, and the representatives advocated for moderate needs, as she was nearly always compliant but not always. The representatives told the Panel they did not think Mrs R had the ability to make a choice and could not aways accept food and fluids.
25. The Panel considered that Mrs R showed no challenging behaviour at the time of the DST, and she tolerated the interventions. The Panel also noted no special provisions were needed to manage her behaviour. The family explained she had to be encouraged to eat, and she would swear a lot if she was touched.
26. In the closed session, the Panel noted Mrs R had capacity to make her own choices, even if they were unwise. There was an element of verbal abuse consistent with the definition of low needs in this domain. She was almost always compliant with care, and her behaviour did not pose a risk to self, others, or property, or hindered the interventions. The Panel concluded Mrs R was compliant with all aspects of her care.
27. We consider the IRP considered all the relevant information in this domain.
Four key characteristics 28. Paragraph 124 of the National Framework sets out the following:
‘establishing whether an individual has a primary health need requires a clear, reasoned decision, based on evidence of needs from a comprehensive range of assessments relating to the individual. A good-quality multidisciplinary assessment of needs that looks at all of the individual’s needs ‘in the round’ – including the ways in which they interact with one another – is crucial both to addressing these needs and to determining eligibility for NHS Continuing Healthcare. The individual and (where appropriate) their representative should be enabled to play a central role in the assessment process.’
29. We will consider the IRPs consideration of each of the four key indicators to establish whether a robust consideration took place which considered all of the available evidence.
Nature 30. Section 3.9 of the practice guidance within the National Framework describes nature as ‘the characteristics of both the individual’s needs and the interventions required to meet those needs’. In the IRP’s consideration of nature we would expect to see analysis of: ‘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’.
31. The representative in this case states the Panel did not comment on whether her condition was deteriorating or improving. The representative argues this contravenes the Practice Guidance 3.3 which sets out questions which may help to consider this indicator. One of the questions is ‘Is the individual’s condition deteriorating/improving?’
32. The Practice Guidance does not set out that these questions must be considered or answered in the IRP considerations, but they can be considered to assist with the consideration if it is helpful to do so. It is therefore not an indication of a failing that the IRP did not specifically answer these questions.
33. The representatives state the IRP did not fully consider her nutritional, mobility, or cognitive needs. The IRP explained her needs in relation to these domains in detail, including setting out her resistance to care, her risk of choking, and the carers needed to assist her with transfers.
34. In relation to the nutritional needs, the representatives state without full assistance from carers, Mrs R would not have eaten or maintained her nutritional status. They state without ongoing and skilled care, Mrs R would have suffered significant harm and deterioration in her health. The IRP considered the representatives point, and it is detailed in the report that without full assistance Mrs R could not eat or drink.
35. In this case, the IRP summarised each domain and noted Mrs R had a number of care needs during the period reviewed. The IRP recognised the carers had to be aware of her needs and anticipate any further needs, and monitor her for any changes, for example, in her levels of consciousness, which might indicate a stroke or other type of absence.
36. The report notes the carers did not need to implement strategies, such as retreat and return, to manage resistance to care. She would sometimes swear at carers but did not hit out. The representatives state that despite interventions being part of planned care, this does not negate the fact that Mrs R’s needs were significant.
37. The representatives state the IRP did not consider the length or frequency of each intervention required. The IRP noted that Mrs R required the assistance of two (sometimes three) carers for all movement. Whilst the IRP does not specifically set out the length and frequency of interventions, the interventions are detailed and the representatives submissions are noted. We consider this is sufficient to consider this primary indicator.
38. Paragraph 3.3 of the National Framework sets out the following questions to consider when considering this need: ‘Questions that may help to consider this include: •How does the individual or the practitioner describe the needs (rather than the medical condition leading to them)? What adjectives do they use?
•What is the impact of the need on overall health and well-being?
•What types of interventions are required to meet the need?
•Is there particular knowledge/skill/training required to anticipate and address the need? Could anyone do it without specific training?
•Is the individual’s condition deteriorating/improving?
•What would happen if these needs were not met in a timely way?’
39. In the complaint to us, the representatives explained the IRP report failed to consider the specific questions set out in Practice Guidance 3.3 of the National Framework, which outlines what should be considered when discussing this indicator. Instead, the representatives state the IRP simply described her needs without considering or commenting on the deterioration in Mrs R’s health and wellbeing, and the consequences if care was not provided in a timely fashion.
40. We have reviewed the information available to the IRP. We can see the IRP considered the nature of Mrs R’s needs, and the type of support typically required to manage these needs. We can also see the IRP considered the totality of her needs in order to reach its conclusion.
41. We have not identified any indications of failings in the IRPs consideration of the ‘Nature’ indicator.
Intensity
42. Intensity is essentially how severe an individual’s needs are, how they need to be managed and whether the necessary care crosses domains. Section 3.9 of the National Framework practice guidance describes intensity as ‘the quantity, severity and continuity of needs’. In the IRP’s consideration of intensity we would expect to see analysis of: ‘Both 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’).
43. The representatives in this case state that while the Panel acknowledged her nutritional needs and the input required to manage this, including that skilled input was required due to her dysphagia (difficulty or discomfort with swallowing), they failed to consider the severity of these needs and incorrectly downgraded her needs due to these interventions being part of planned care that carers were trained to deliver. The IRP did consider the time it took for her to be fed a full meal and her risks of dysphagia and aspirational pneumonia.
44. Whilst the representatives state this domain was incorrectly downgraded, we can see the IRP, ICB, and applicant all agreed on a high level of needs in this domain.
45. The representatives state the severity of Mrs R’s nutritional needs and the frequency of skilled care required to meet and manage just one aspect of her daily care needs demonstrates an intensity which constitutes a primary health need.
46. The representatives also state the IRPs note nearly all movement and touching caused her discomfort and pain, which meant her carers need to anticipate the impact of care and adapt the approach accordingly.
47. The IRP considered Mrs R’s intensity of need, and whether her care required specialist skill to administer or monitor.
48. The IRP considered Mrs R needed 24-hour care. Her breathing did not require intervention, but her carers needed to be aware of how her shortness of breath could interact other care interventions. The IRP noted she needed full assistance with eating and drinking, and the length of interventions were noted- the IRP recognised Mrs R requiring to be fed with a teaspoon sometimes meant it would take 30 minutes or more to feed her a full meal. Her continence care was regular and routine, and no specialist input was required for this. The IRP considered that she required her skin to be monitored, she needed repositioning every four hours, and three carers were required for this. Her pain levels were considered as part of her routine care. The IRP recognised there was no evidence of a clinical diagnosis of dementia, and she was deemed to have capacity at the time of the IRP.
49. Her medication routine did not require specialist skill to administer or monitor. The Panel concluded Mrs R did need significant levels of care throughout 24 hours and occasionally, interventions took longer than 30 minutes, or more carers were required. However, the Panel agreed Mrs R did not have a primary health need, as the intensity of her needs did not go beyond what a local authority could provide, based on the frequency or intensity of interventions necessary.
50. Having reviewed the information made available to the IRP, we are satisfied the IRP has carried out a robust consideration of this key indicator. The records made available to the IRP reflect Mrs R did not require skilled interventions of expert knowledge to support her needs. The records show she was under the SALT team due to her history of aspiration pneumonia, but she was not prescribed any inhalers or rescue medications. The care plan recognised the staff should escalate to the GP if there were concerns with her breathing, but the staff were to encourage her to do breathing exercises. The information available to the IRP supports the IRP’s conclusion Mrs R’s needs did not have an intensity that constitutes a primary health need.
Complexity 51. Section 3.9 of the National Framework practice guidance describes complexity as ‘the level of skill/knowledge required to address an individual need or the range of needs and the interface between two or more needs’. In the IRP’s consideration of complexity, we would expect to see analysis of: ‘How the needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s), and/or manage care. This may arise with a single condition, or it could include the presence of multiple conditions or the interaction between two or more conditions. 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’.
52. Paragraph 3.5 of the National Framework sets out the following questions to consider when considering this need: •How difficult is it to manage the need(s)?
•how problematic is it to alleviate the needs and symptoms?
•Are the needs interrelated?
•Do they impact on each other to make the needs even more difficult to address?
•How much knowledge is required to address the need(s)?
•How much skill is required to address the need(s)?
•How does the individual’s response to their condition make it more difficult to provide appropriate support?
53. The representative stated Mrs R had interrelated needs across 11 domains. They stated her nutritional needs required skilled intervention and input to manage ongoing choking risk and previous SALT involvement. She could not weight bear or assist with any movement. The representatives therefore argued that her needs were complex, and associated with pain.
54. The representatives recognised that the IRP said there were interactions between domains, but stated the skill required falls under what would be expected from appropriately trained carers. The representatives argue the fact Mrs R was in receipt of skilled care should not have a bearing on eligibility.
55. The representatives also complained the IRP did not appropriately consider the level of interaction and support required resulting from the relationship between the mobility and personal care needs. They state the fact she was immobile added complexity to the management of double incontinence, high risk of skin breakdown, and discomfort.
56. The representatives state the fact Mrs R could not feed herself, and she had a high risk of choking and had a modified diet, further evidences a complexity of need consistent with a primary health need.
57. They also state her mobility, continence, and skin needs were interrelated. They argued her psychological and emotional needs, breathing, and behavioural needs were also interrelated, demonstrating a complexity of care.
58. The IRP recognised that Mrs R had needs in 11 domains, and there were interactions between the domains. The IRP considered the interactions that were evidenced in the records could be met by appropriately trained carers.
59. The IRP concluded Mrs R’s care needs across the 11 domains required carers who understood her needs well, were appropriately trained to meet her largely routine care needs, and could monitor those needs and any indications of pain or discomfort.
60. We can see the IRP recognised the interactions between the needs in the different domains. We have reviewed the evidence that was made available to the IRP.
61. The evidence available in the records shows that staff were aware of Mrs R’s needs and how they present. The staff encouraged her with food and drink, and the care plans detailed that she was bed bound with limited mobility. The staff were able to manage the risk of skin breakdown. The care plans set out that staff needed to assist her with all meals and staff needed to provide food with a teaspoon at a slow pace. This managed her risk of choking. The care plans were clear and when they were reviewed monthly from April to July 2023 no changes were necessary. In the daily records, it is recorded that checks and repositioning were able to take place without barriers to interventions.
62. We are satisfied Mrs R’s care needs were straightforward to anticipate and to manage. Her needs were met by carers in routine interventions. She was often settled, slept well, and complied with assistance to personal hygiene. The information available to the IRP supports the IRP’s conclusion Mrs R’s needs did not have a level of complexity that would constitute a primary health need.
Unpredictability 63. Section 3.9 of the National Framework practice guidance describes unpredictability as ‘the degree to which the needs fluctuate and thereby create challenges in managing them’. In the IRP’s consideration of unpredictability, we would expect to see analysis of: ‘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’.
64. The representatives in this case argued that as Mrs R was at risk of choking, this in itself was unpredictable. Whilst interventions were in place to minimise this risk, it did not remove the unpredictability of choking.
65. The Panel noted that there were no significant changes in the review period in Mrs R’s needs. The report sets out that the care plans were regularly reviewed with few changes made. Her nutritional needs were unchanged, and there were no episodes of skin breakdown. The IRP noted that Mrs R did have chest infections, but these were predictable given her COPD symptoms and related breathing difficulties. She did not have any further stroke or ASC in the review period.
66. In the complaint to us, the solicitors state the IRP makes no reference to the consequences of the needs not being met, but her needs were being met at that time. The needs did not require specialist interventions or medical input to be met.
67. The applicant argued there was a level of unpredictability in Mrs R’s care needs consistent with a primary health need.
68. The IRP concluded Mrs R’s needs presented as stable during the period under review, and her cognition did not change.
69. We have reviewed the information that was made available to the IRP. The monthly reviews of the care plans, from April to July 2023, all stated there were no changes or signs of discomfort. The daily care records reflect that her needs were met and staff were able to encourage her to eat and drink. She was often settled and there were no instances of sudden decline.
70. Whilst Mrs R did have a range of needs which needed to be managed, the records show the staff were able to meet her needs. There were no sudden or critical changes in need. We are satisfied there are no indications of failings in the IRPs decision-making process about the unpredictability of Mrs R’s needs.
71. We have not identified any indications of failings in the IRP’s consideration of this case. We know this has been a difficult process for Ms R, and we thank her for bringing this complaint to our attention.