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 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 Mr E 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 L has 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.
16. Mrs L has told us she disagrees with the IRP’s consideration of the behaviour domain and the four key characteristics.
Care domains
17. Mrs L has told us she disagrees with the IRP’s consideration of the behaviour domain.
18. Mrs L says her husband’s needs in this domain were severe.
19. The decision support tool DST sets out the descriptors for the weightings in each domain. The DST descriptor for severe says:
‘‘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.’
20. At the IRP Mrs L said when activities took place in the communal area of the care home, her husband was wheeled into a corner where he could not be touched or reach anyone. This is why records of incidents were less prominent. She said his behaviour was managed by effectively isolating him and limiting his interaction with others. Her husband would ask visitors to scratch him and would persistently pick his skin and explained this was another example of his challenging behaviour.
21. Mrs L’s representative said Mr E’s behaviour was characterised by physical aggression. It acknowledged most of this behaviour occurred in June and July 2023. It said there was no requirement within the severe descriptor for ABC charts before it being satisfied. The family said Mr E had been blind and hard of hearing and isolating him was scary for him.
22. The ICB said Mr E’s needs in this domain were high. The IRP also said they were high.
23. The DST descriptor for high says:
‘‘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.’
24. We can see the IRP had a discussion about Mr E’s behaviour needs. The family gave an account of Mr E’s needs. The IRP weighed up his needs to see whether a higher weighting may be appropriate.
25. The IRP discussed the evidence and said if Mr E’s behaviour in touching other residents or staff could be deemed challenging placing him at arm’s length so he could not reach others was not considered to be ‘outside the range of planned interventions’. It said this was normal procedure. The IRP found no evidence within the care records this was how Mr E’s behaviour was managed. The IRP said if Mr E’s behaviour was a concern care staff there would have been ABC charts and referral to his GP and possibly medication. It found no evidence of this. The IRP said where Mr E’s behaviour frustrated care interventions there was no evidence he suffered significant harm.
26. We consider the IRP acted in line with the National Framework when it considered Mr E’s needs in this domain. The IRP looked at the available evidence and said why it could not say Mr E’s in this domain were severe.
27. The records show there are a few incidents in June and July 2023 where Mr E was aggressive, rude and shouting at carers. It acknowledged an incident in October where staff were assisting Mr E with a shower, he became distressed so carers took him back to his room. The IRP said any challenging behaviour was predominately in the earlier days following Mr E’s admission to the care home. Where Mr E’s behaviour was challenging there were mechanisms in place to deal with this. There is no evidence that Mr E’s behaviour needed a skilled response above what the carers could provide. There was no evidence in his care plans to indicate severity or frequency of his behaviour presented a significant risk of harm. This is what the IRP would have needed to see to give a severe weighting in this domain.
28. We recognise Mrs L disputes the weighting in this domain. It appears the IRP considered this domain in line with the National Framework and DST descriptors. We can see no indication of a failing.
Four key characteristics
29. The IRP applies an eligibility test to help it make a decision about an individual’s CHC eligibility. This is what we refer to as the ‘primary health need’ test. 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 an individual’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.
30. 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 E’s needs.
31. Mrs L disagrees with the IRP’s consideration of the four key indicators. The four key indicators are fundamental to the decision making, so we have looked at how the IRP considered these.
Nature
32. Section 3.3 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’.
33. In line with paragraph 59 of the National Framework, 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’.
34. Section 3.3 also lists questions prompts for factors that should be considered (though not specifically and individually answered) for the nature indicator:
• 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?
35. The IRP report shows the panel considered Mr E’s needs and how this impacted him. It’s decision in the nature indicator is clear and presents a full picture of how Mr E’s needs were met. The IRP focussed on Mr E’s individual needs rather than his diagnosed medical condition.
36. The IRP looked at the types of care Mr E needed to keep him safe and well. The report set this out in detail. The IRP said Mr E was almost 100 years old at the time of the DST. He required care and support 24 hours a day across the care domains. He needed help to guide him to see his food and with this he was able to eat and drink satisfactorily. It acknowledged he lost a little weight in the first months of him being in a care home. He regained this and his BMI was maintained throughout the assessment period. Mr E with the guidance of two carers and his Zimmer frame was able to find his own way to the toilet. His incontinence was managed by pads and required some cleaning up.
37. The IRP acknowledged due to Mr E’s cognitive he was unable to communicate his needs. Staff would have to monitor his wellbeing on a regular basis. There was no evidence it took more than one staff member or was of an exceptional frequency. The IRP said Mr E would be present at activities but due to his lack of cognition he was unable to participate. The IRP said he showed no signs of distress at the time of activities in the communal areas. Mr E showed no signs of prolonged low mood. When it did occur, he responded to comfort and encouragement.
38. The IRP acknowledged Mrs L believed her husband had hallucinations. The care home nurse said she did not receive any reports Mr E had been having any hallucinations. The IRP acknowledged Mr E’s behaviour included actions and comments which were inappropriate. It said it could be a consequence of his dementia and his confusion as to the identity of people. It said his actions and comments could be managed by care staff and did not result in interventions outside the scope of his care home plans. Mr E’s medication was not exceptional and did not require frequent review or changes.
39. The IRP said Mr E’s needs could be met by care staff, who were regularly working in a care home and used to dealing with residents with dementia. It acknowledged Mr E’s condition was steadily deteriorating but this was as expected for someone of his age. Mr E did not require a referral to any outside experts or exceptional intervention by his GP. His needs could be met by care staff. The evidence available was enough for the IRP to decide the nature of Mr E’s needs did not demonstrate a primary health need.
40. We think the IRP considered all the relevant factors, including the family’s evidence, when it decided the nature of Mr E’s needs did not indicate he had a primary health need. We are satisfied it acted in line with the National Framework.
Intensity
41. Section 3.4 of the practice guidance within the National Framework says intensity ‘is about the quantity, severity and continuity of needs.’
42. In line with the National Framework, we would expect the IRP’s consideration of the intensity indicator to ‘relate 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’)’.
43. Section 3.4 also lists questions prompts for the intensity indicator:
• How severe is this need?
• How often is each intervention required?
• For how long is each intervention required?
• How many carers/care workers are required at any one time to meet the needs?
• Does the care relate to the needs over several domains?
44. We can see the IRP looked at the right things. It had a discussion about the intensity of Mr E’s needs. The IRP said he had needs in across eleven care domains. He has severe level of need in the cognition domain. He had high level of needs in the mobility, communication and behaviour domains. He had moderate level of needs in the breathing, continence, skin and psychological and emotional care domains. He had a low level of need in the nutrition, drug therapies and medication and altered state of consciousness domains.
45. The IRP acknowledged Mr E had a range of needs across the care domains. It said his needs were not exceptionally frequent or required an intensive application of staff time or other resources. The IRP acknowledged Mr E took his meals in the communal areas so staff could monitor and provide help if needed. The IRP found no evidence that Mr E required an unusually dedicated number of staff to spend more time with him to ensure he was sufficiently eating and drinking. It said following his initial weight loss when entering the care home Mr E had regained the weight and had a satisfactory BMI level.
46. The IRP said Mr E was at risk of falls as he tended to get up quickly from his chair and walk quickly. Staff were required to monitor and intervene if he was at risk of falling. The IRP found no evidence he required one or more staff members to keep him safe. The IRP said Mr E recognised when he needed to go to toilet and would go himself to find the toilet. However, staff were needed to monitor this as Mr E would not always make it to the toilet in time and staff would need to help clean and change his pads. The IRP said there was no evidence an exceptional number of staff were needed to tend to Mr E’s needs.
47. The IRP said Mr E would scratch and pick at his skin. The registered nurse said these required interventions several times a day. Mr E needed creams to be applied to vulnerable areas. At the DST the rash on his body and groin were receptive to ‘unexceptional treatment’ and had cleared at the time of the DST. He had a rash on his hand and the GP prescribed a cream which was applied twice a day. A referral had been made to the dermatologist. The IRP acknowledged Mr E’s medication regime was non-complex, he did not have regular prescribed medications. Paracetamol was given if needed. The IRP found no evidence to show Mr E needed an extensive number of staff to provide care or skilled expertise from outside the care home.
48. We think the IRP considered all the relevant factors when it decided the intensity of Mr E’s need did not suggest he had a primary health need. We are satisfied it acted in line with the National Framework.
Complexity
49. Section 3.5 of the practice guidance within the National Framework says complexity ‘is about the level of skill/knowledge required to address an individual need or the range of needs and the interface between two or more needs.’
50. In line with the National Framework, in the IRP’s consideration of complexity indicator 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 the 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.’
51. Section 3.5 lists the question prompts for the complexity indicator:
• How difficult is it to manage the need?
• 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 needs?
• How does the individual’s response to their condition make it more difficult to provide adequate support?
52. Mrs L said her husbands need in the behaviour domain would affect all other areas and make matters worse. She said his cognition needs were severe and added another area of difficulty. She says the totality of her husband’s condition made matters worse. She says each care domain would be made worse by his reaction to it. She says not enough emphasis had been placed on her husband’s lack of vision and he was severely deaf.
53. We can see the IRP looked at the available evidence. It had a discussion about the complexity of Mr E’s needs. It acknowledged there was an interaction between Mr E’s severe cognitive impairment and his needs in other care domains. This included his needs in the communication domain. He needed care staff to keep him safe and protect him from harm and protect others from harm caused by his behaviour. The IRP said his interrelated needs could be managed by care home staff with support from his family and GP. Mr E’s care did not require any expert knowledge or expertise to meet his care needs.
54. The IRP said Mr E needed prompting and some assistance with his food and drink. His skin needs were addressed by a prescription for ointment from his GP and a referral to his dermatologist. It acknowledged there was a problem with Mr E having a tendency to remove his dressings. Staff were able to monitor this daily and there was no evidence treatment was not effective for his skin concerns. It acknowledged staff were able to monitor and manage his incontinence needs. Staff would help him to the toilet, help with his trousers and clean and change his pads. Staff were able to effectively manage his risk of falls by monitoring him daily. Mr E’s medication needs were not complex and were not subjective to significant review during the review period. It acknowledged apart from the referral to a dermatologist for Mr E’s skin concerns there was no other involvement of external experts.
55. The IRP did acknowledge Mr E’s challenging behaviour. This was from his lack of awareness and understanding of his behaviour due to his dementia. It explained this was not complex as measures were in place to effectively deal with this. The IRP said Mr E was not prevented from being present at communal activities. He was placed in a chair with distance from other residents who might be affected by his behaviour. Staff were able to provide Mr E with reassurance if his mood was affected.
56. The IRP considered and weighed up the evidence before making its decision. We consider the IRP considered all the relevant factors when it decided the complexity of Mr E’s needs did not suggest he had a primary health need. We are satisfied it acted in line with the National Framework.
Unpredictability
57. The final key characteristic of a person’s level of need is unpredictability. The National Framework defines it as ‘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. An individual with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition.’
58. Section 3.6 of the practice guidance within the National Framework says unpredictability ‘is about the degree to which needs fluctuate and thereby create challenges in managing them. It should be noted that the identification of unpredictable needs does not, of itself, make the needs ‘predictable’ (i.e. ‘predictably unpredictable’) and they should therefore be considered as part of this key indicator.’
59. Section 3.6 lists the question prompts for the unpredictability indicator:
• Is the individual or those who support him/her able to anticipate when the needs might arise?
• Does the level of need often change? Does the level of support often have to change at short notice?
• Is the condition unstable?
• What happens if the need isn’t addressed when it arises? How significant are the consequences?
• To what extent is professional knowledge/skill required to response spontaneously and appropriately?
• What level of monitoring/review is required?
60. The IRP report shows the IRP considered the unpredictability of Mr N’s needs. We can see it had the unpredictability prompts in mind to inform its discussions. The IRP acknowledged Mr E behaviour at times could have a degree of unpredictability. However, it explained his lack of understanding and consequences of his behaviour was entirely predictable and due to his several cognitive impairment. As a result, staff could put in place safeguards against this. Care staff dealt with Mr E’s behaviour of touching residents inappropriately by placing him at arm’s length when in communal areas. Mr E would also stop when care staff explained his behaviour was unacceptable. However, he wasn’t able to retain such information and would be inappropriate again. The IRP said staff were prepared for such behaviour and were able to avoid harm and distress to Mr E and residents.
61. The IRP explained Mr E’s skin concerns of picking and scratching at his skin was predictable. A prescription for ointment and referral to a dermatologist meant it was not a habit that was unpredictable for care staff to treat. Similarly, Mr E’s risk of falls was acknowledged. He had three recorded falls. Staff were able to monitor him, without an increase in the number of staff or resources to avoid any harm to him. The IRP found no evidence that Mr E’s challenging behaviour was unpredictable. Care staff were aware of his behaviour and its handling and care of his needs was not over and above what care staff could provide.
62. The IRP said Mr E’s medication regime was not complex, his medical conditions were not subject to significant changes or new conditions during the review period. If a person has unpredictable needs, we would expect to see their care needing frequently or sudden changes. That was not the case for Mr E. The IRP clearly described why his needs were not unpredictable.
63. We think the IRP considered all the relevant factors when it decided the predictability of Mr E’s needs did not indicate he had a primary health need. We are satisfied it acted in line with the National Framework.
Procedural concerns
64. Our role is to look at how NHSE considered Mrs L’s concerns and not the actions of the ICB directly. This 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.
65. We can see at the IRP the family raised concerns about the ICB process, details of which can be found at section 14 to 16 of the report. The family raised concerns the DST should have been carried out by a multi-disciplinary team and it should have been a ‘person centred’ approach. The family felt this was not fulfilled as they were not given the opportunity to make face to face submissions to the social worker who simply reviewed the clinical assessor’s initial assessment. The IRP considered the family’s concerns and said it was regrettable this happened but explained it was as a result of local authorities having finite resources.
66. 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 Mr E 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
67. The IRP showed it applied the National Framework when it considered Mr E’s CHC eligibility.
68. We recognise Mrs L’s account and that she disagrees with the IRP’s decision. We do not wish to take away from her account or what she has told us about her husband’s needs.