12. 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.
13. Before we discuss our decision, we would like to explain some information about how an IRP reaches its decision and what this means for how we look at it. NHSE guidance says an individual receiving care, or their representative may apply for an IRP to review a ICB’s decision to decline CHC funding.
14. 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 L 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.
15. 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.
16. 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.
17. To help us reach a decision, we have carefully considered the information Mr B 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. Mr B has told us he disagrees with its consideration of the four key characteristics.
Four key characteristics
18. 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.
19. 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 Mrs R’s needs.
20. Mr B disagrees with the IRP consideration of the four key indicators. At the IRP Mr B’s representative said it was focusing on the nature and complexity characteristics. It had nothing further to add to its comments on the intensity and unpredictability characteristics other than those provided its written submission. The four key indicators are fundamental to the decision making, so we have looked at how the IRP considered these.
Nature
21. 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’.
22. 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’.
23. Section 3.3 also lists questions prompts for factors that should be considered (though not specifically and individually answered) for the nature characteristic:
• 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?
24. Mr B disagrees with the IRP’s consideration of the nature characteristic. He says the IRP did not consider the extent of his mother’s skin breakdown and the requirement of tissue viability nurse. It did not consider his mother could only sit in a wheelchair for two hours to ease her pain from contractures which resulted in her skin breakdown. It did not consider the extent of his mother’s medication regime. It did not consider the impact of Mrs R’s pain and psychological distress on her behaviour which placed her at a risk to herself and others.
25. The IRP report shows the panel considered Mrs R’s need and how this impacted her. Its decision in the nature indicator is clear and presents a full picture of Mrs R’s needs were met. The IRP focussed on Mrs R’s individual needs rather than her diagnosed medical condition.
26. The IRP report said Mrs R had vascular and Alzheimer's dementia. She had a history of contractures to her legs, asthma, high blood pressure, high cholesterol, osteoporosis, total hip replacement, bronchiectasis, chronic rhinosinusitis and oedematous. Mrs R had a history of falls, constipation, chest infections and UTI’s. The IRP report said from 16 July 2019 to 11 November 2019 Mrs R developed a grade three injury to her right bunion and a deep tissue injury to her left bunion.
27. The IRP looked at the types of care Mrs R needed to keep her safe and well. The report sets this out in detail. The IRP said Mrs R had needs in 11 care domains and she needed support of carers with all her personal care needs. This included her needs for continence management, mobility, nutrition and medication needs. It acknowledged Mrs R was unable to fully assess risk herself or to make her own decision to be part of her care planning.
28. The IRP said Mrs R’s care needs were as a result of her cognitive decline and her leg contractures. Mrs R had history of asthma and had a PRN inhaler. It acknowledged her breathing was affected by her regular chest infections and these usually responded to antibiotic medication. It said Mrs R could feed herself and not at risk of nutrition. The IRP acknowledged from 28 September 2020 Mrs R had 8kg weight loss due to a decline in her appetite and needed to be fed.
29. The IRP said Mrs R was doubly incontinent and wore continence pads. She needed care staff to meet her continence needs and to maintain good hygiene. Staff had to monitor her for constipations and urinary tract infections. The IRP said Mrs R’s skin was intact. It acknowledged this was except for the period 16 July 2019 to 11 November 2019 when she had necrosis of her skin on her right bunion and required specialist dressing. She had a deep tissue injury to her left bunion.
30. The IRP said her skin concerns responded to treatment. Mrs R needed care staff to ensure she had a consistent care routine to keep her skin clean, dry and moisturised. The IRP said her skin care routine was designed to prevent skin tears and pressure sores. She had a pressure relieving mattress and cushions in place. It acknowledged she had periods of rest in bed and required regular repositioning.
31. The IRP said Mrs R was not mobile. She was dependent on care staff for all her mobilisation and transfers needs. Staff would use a hoist and wheelchair. It acknowledged manual handling was difficult for staff because of Mrs R’s leg contractures and the pain and anxiety caused by movement. The IRP acknowledged Mrs R would be particularly anxious when she was being moved. However, she did not have any referrals to the community mental health team.
32. The IRP said Mrs R could resist care interventions at times and would sometimes be physically and verbally aggressive. It was believe this was due to the pain she felt when being moved. The IRP said Mrs R medication regime was managed by staff. It said because of her pain on movement due her contractures she was given PRN opioid medications.
33. The IRP said Mrs R was not able to communicate easily but she could make her pain know. This required staff to pay close attention to her verbal and non verbal communication, this included gestures and behavioural cues in order to anticipate her needs. The IRP said due to her cognitive impairment she had no orientation to time and place. It said she could recognise people but not communicate her needs.
34. The IRP said Mrs R was reliant on others to maintain her safety, interpret and anticipate her needs. The IRP said she was reliant on professionals to ensure the management of her symptoms and her wellbeing was maintained.
35. We think the IRP considered all the relevant factors, including the family’s evidence, when it decided the nature of Mrs R’s needs did not indicate she had a primary health need. We are satisfied it acted in line with the National Framework.
Intensity
36. Section 3.4 of the practice guidance within the National Framework says intensity ‘is about the quantity, severity and continuity of needs.’
37. 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’)’.
38. Section 3.4 also lists questions prompts for the intensity characteristic:
• 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?
39. Mr B says the IRP’s consideration in the intensity characteristic is brief. It said the IRP had not fully explored Mrs R’s pain management and skin breakdown.
40. We can see the IRP looked at the right things. It had access to the representatives written submissions. It had a discussion about the intensity of Mrs R’s needs. The IRP said Mrs R required help with all activities of daily living and to keep her safe. The IRP said Mrs R’s care was provided by one to two carers. She needed three carers to hoist her due to the risk associated with her contractures and her limited ability to assist. The IRP acknowledged there was an occasion when due to her pain it took four attempts to sit Mrs R upright. The IRP said from September 2020 Mrs R needed care staff to assist with feeding because she became tired.
41. The IRP acknowledged staff were provided with training and guidance to manage Mrs R’s contractures during transfers. She had the oversight of her GP and district nurse. It acknowledged there was also input from the tissue viability nurse, podiatry services, occupational therapy and physiotherapy.
42. The IRP acknowledged a third carer was required at times for transfers. However, it said Mrs R care needs did not require an unusual amount of time to deliver and did not vary substantially from day to day. It said the records do not show Mrs R had an intense level of need or delivery of her care was taking lengthy period of time to complete.
43. The annex of the IRP report shows the IRP considered the intensity of Mrs R’s repositioning needs. It asked the ICB if Mrs R was repositioned every two to four hours as it recognised the records differed. It also considered the time for hoisting transfers. The ICB acknowledged the records differ but said Mrs R was repositioned every two to four hours. The representative said Mrs R was repositioned every two hours during the night to maintain her skin integrity. The ICB recognised the records did not document the time hoisting transfers had taken. However, it said there was no record transfers were lengthy in procedure. It could not clarify how many times transfers had been completed during the day.
44. We acknowledge Mr B feels the IRP’s consideration of the intensity characteristic is brief. We think the IRP considered all the relevant factors when it decided the intensity of Mrs R’s need did not suggest he had a primary health need. We are satisfied it acted in line with the National Framework.
Complexity
45. 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.’
46. 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.’
47. 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?
48. Mr B disagrees with the IRP consideration of the complexity characteristic. He disagrees his mother’s needs could be routinely met. He says his mother required intervention from multiple specialists including tissue viability, occupational therapists, physiotherapy and the falls team.
49. We can see the IRP looked at the available evidence. It had a discussion about the complexity of Mrs R’s needs. It said there were interactions between Mrs R’s needs in the cognition, behaviour and mobility domains. It acknowledged Mrs R was at risk of falls due to her poor mobility, contractures and the decline in her cognitive function. It said due to her cognitive impairment she would try to stand up unaided. She would swing her arms placing her at significant risk of injury. She was not compliant with moving and handling due to her pain. She would be both verbally and physically aggressive which placed both herself and others at risk. The IRP said in April 2021 her contractions worsened and affected her positioning. She was provided with additional cushioning and reviewed by the occupational therapy team. In August 2021 she was discharged from the occupational therapy team.
50. The IRP acknowledged there was interaction between Mrs R’s cognition and communication. She was unable to reliably communication. She also had interactions between her mobility and medication needs. Her leg contractures affected her mobility and caused her distress and pain. She was prescribed muscle relaxants and pain relief was in place. She had high levels of pain medication, she had Butec patches (patches for pain relief) and PRN Oramorph. The IRP said in April 2021 Mrs R was given morphine 30 minutes prior to transfers however she continued to experience significant pain and agitation on moving and handling interventions. It said Mrs R needed care staff to assist with all mobilisations and transfers and staff used a hoist and wheelchair. Mrs R was at risk of increased falls as she could not assist with transfers.
51. The IRP acknowledged there was interaction between Mrs R’s needs in the mobility, nutrition and continence domains which affected her skin needs. It said between July 2019 and November 2019 Mrs R had developed two pressure sores, one of these deteriorated to a grade three and was necrotic. It acknowledged this required the intervention from the tissue viability nurse and ongoing review by district nurses. The IRP said this led to skin break throughs healing. Care staff needed to provide regular prepositioning and good skin hygiene. It had to provide a preventive skin care regime involving applying emollients. The IRP said care staff had to ensure Mrs R had a balance nutritious diet and drank sufficient fluids to maintain her nutritional intake and support the condition of her skin.
52. The IRP also said there was interactions between Mrs R’s breathing and nutritional needs. It said her appetite had diminished when she had a chest infection and she lost weight.
53. We can see the IRP considered all the available evidence when making its comments regarding the intensity of Mrs R’s needs. It said the interrelation of Mrs R’s needs were not complex to manage. Her needs did not require regular adjustments. Mrs R’s care needs could be anticipated and routinely met by care staff with the oversight and clinical supervision which was provided by a GP and district nurse. The IRP found no evidence specialist care staff were required and no indication staff needed special training or skills to provide to meet Mrs R's needs.
54. We think the IRP considered all the relevant factors, including Mr B’s evidence when it decided the intensity of Mrs R’s need did not suggest she had a primary health need. We are satisfied it acted in line with the National Framework.
Unpredictability
55. 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.’
56. 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.’
57. 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?
58. The IRP report shows the IRP considered the unpredictability of Mrs R’s needs. We can see it had the unpredictability prompts in mind to inform its discussions. The IRP said Mrs R’s skin was intact for most of the review period. When she did experience skin issues she responded well to treatment. It acknowledged she was at risk of falls and need full assistance for mobilising and a wheelchair for transfers. It said she accepted personal hygiene care. The IRP Mrs R had dementia and care staff needed to be alert to her symptoms and know the appropriate response. Care staff understood Mrs R’s needs which were predictable.
59. The IRP said Mrs R’s care need were effectively met with planned and routine interventions. Her needs did not require regular change in strategy or care planning. The IRP found no indication Mrs R had a rapidly declining condition or required urgent intervention. If a person has unpredictable needs, we would expect to see their care needing frequently or sudden changes. That was not the case for Mrs R. The IRP clearly described why her needs were not unpredictable.
60. We think the IRP considered all the relevant factors when it decided the predictability of Mrs R’s needs did not indicate she had a primary health need. We are satisfied it acted in line with the National Framework.
Well managed needs principle
61. Mr B says the IRP marginalised his mother’s needs.
62. Paragraph 208 of the National Framework says:
‘When undertaking NHS Continuing Healthcare reviews, care must be taken not to misinterpret a situation where the individual’s care needs are being well managed as being a reduction in their actual day-to-day care needs. This may be particularly relevant where the individual has a progressive illness or condition, although it is recognised that with some progressive conditions care needs can reduce over time.’
63. We can see the IRP took into account Mr B’s and his representatives evidence about Mrs R’s needs. There is no evidence it marginalised her care needs. The IRP described how staff managed her continence, skin, mobility, breathing, communication, nutrition, cognition, behaviour and medication needs to ensure she was safe, which it must do to make decision about the four key characteristics. It detailed how Mrs R’s care could be met with care and monitoring. It did not downplay or suggest any need did not exist because of how it was managed. The report shows the IRP’s application of the well managed principle was supported by the evidence available and in line with the National Framework.
Summary
64. The IRP showed it applied the National Framework when it considered Mrs R’s CHC eligibility.
65. We recognise Mr B’s and his representative’s account and that they disagree with the IRP’s decision. We do not wish to take away from Mr B’s account or what he has told us about his mother’s needs.