14. 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.
15. The National Framework sets out that an individual or their representative may ask NHSE to arrange an IRP to review an ICB’s decision to decline NHS CHC.
16. It is our role to decide whether the IRP made the decision that Mr O was not eligible for NHS CHC in line with the National Framework. We cannot question discretionary decisions when the IRP made these without maladministration (fault). This includes decisions about eligibility for NHS CHC, where the decisions are based on clinical judgements.
17. The fact that someone else has a different opinion does not mean there must have been a fault in the decision-making process. The purpose of the IRP is to review the procedure followed by the ICB in reaching its decision about an individual’s eligibility for NHS CHC.
18. The National Framework sets out that the diagnosis of a particular disease or condition does not in itself determine eligibility for NHS CHC eligibility, and this decision should be made based on the individual’s assessed needs.
19. The IRP can also reach a view as to whether the individual should or should not be considered to have a primary health need. If it is established the individual has a primary health need, they will be eligible for NHS CHC.
20. When we consider a complaint about an IRP, we look at whether it took account of all the relevant information provided to it in reaching its decision about whether this was the case.
Nutrition
21. Mrs O complains about how the IRP considered the domain of Nutrition, and says Mr O met the criteria for a High level of need in this domain.
22. Mrs O says her husband: • required a speech and language therapy (SaLT) assessment due to his risk of choking following one coughing incident while eating, which advised his food should be soft and bite sized • had dysphagia, evidenced by a previous episode of coughing while in hospital.
23. The IRP agreed with the ICB in its assessment of a Low level of need in this domain.
24. The DST defines High needs in this domain as, ‘Dysphagia requiring skilled intervention to ensure adequate nutrition/hydration and minimise the risk of choking and aspiration to maintain airway.’ or ‘Subcutaneous fluids that are managed by the individual or specifically trained carers or care workers.’ or ‘Nutritional status “at risk” and may be associated with unintended, significant weight loss.’ or ‘Significant weight loss or gain due to identified eating disorder.’ or ‘Problems relating to a feeding device (for example PEG) that require skilled assessment and review.’
25. The DST defines Low needs in this domain as, ‘Needs supervision, prompting with meals, or may need feeding and/or a special diet (for example to manage food intolerances/allergies).’ or ‘Able to take food and drink by mouth but requires additional/supplementary feeding.’
26. Simply requiring a SaLT assessment does not match any of the descriptors of a High level of need, and requiring a ‘special diet’, such as soft and bite sized, matches the descriptor of a Low level of need. Even if we consider two episodes of coughing while eating to be dysphagia, the descriptor of a High level of need says that the dysphagia must require skilled intervention, which was not the case for Mr O.
27. We recognise Mrs O has a different view to the IRP. We have not identified any indications of failings in the IRP’s consideration of Mr O’s needs as they relate to Nutrition. We therefore will not consider this aspect of the complaint any further.
Skin
28. Mrs O complains about how the IRP considered the domain of Skin, and says Mr O met the criteria for a High level of need in this domain.
29. Mrs O says her husband: • required specialist dressings, involving silver and iodine, to treat the tears to his skin • had wounds which were responding to treatment.
30. The IRP agreed with the ICB in its assessment of a Moderate level of need in this domain.
31. The DST defines High needs in this domain as, ‘Pressure damage or open wound(s), pressure ulcer(s) with ‘partial thickness skin loss involving epidermis and/or dermis’, which is not responding to treatment.’ or ‘Pressure damage or open wound(s), pressure ulcer(s) with ‘full thickness skin loss involving damage or necrosis to subcutaneous tissue, but not extending to underlying bone, tendon or joint capsule’, which is/are responding to treatment.’ or ‘Specialist dressing regime in place; responding to treatment.’
32. The DST defines Moderate needs in this domain as, ‘Risk of skin breakdown which requires preventative intervention several times each day without which skin integrity would break down.’ or ‘Pressure damage or open wound(s), pressure ulcer(s) with ‘partial thickness skin loss involving epidermis and/or dermis’, which is responding to treatment.’ or ‘An identified skin condition that requires a minimum of daily treatment, or daily monitoring/reassessment to ensure that it is responding to treatment.’
33. We recognise the descriptor for a High level of need references a ‘specialist dressing regime’. It is not clear if it is the regime that must be specialist to match this descriptor, or the type of dressing. Regardless, the IRP have considered the evidence regarding these dressings when coming to its view, and we would not ask them to do any more than this. ‘Responding to treatment’ is in the descriptors of both a High and Moderate level of need. For a High level of need, this in the in reference to skin damage with ‘full thickness skin loss involving damage or necrosis to subcutaneous tissue, but not extending to underlying bone, tendon or joint capsule’, which Mr O did not have.
34. We have not identified any indications of failings in the IRP’s consideration of Mr O’s needs as they relate to Skin. We therefore will not consider this aspect of the complaint any further.
Communication
35. Mrs O complains about how the IRP considered the domain of Communication, and says Mr O met the criteria for a High level of need in this domain.
36. Mrs O says her husband: • experienced difficulty finding words and did not always express his needs or use his call bell, meaning staff needed to anticipate his needs.
37. The IRP agreed with the ICB in its assessment of a Low level of need in this domain.
38. The DST defines High needs in this domain as, ‘Unable to reliably communicate their needs at any time and in any way, even when all practicable steps to assist them have been taken. The individual has to have most of their needs anticipated because of their inability to communicate them.’
39. The DST defines Low needs in this domain as, ‘Needs assistance to communicate their needs. Special effort may be needed to ensure accurate interpretation of needs or additional support may be needed either visually, through touch or with hearing.’
40. The descriptor for a High level of needs says the person is unable to reliably communicate their needs ‘at any time and in any way’, which was not the case for Mr O.
41. We understand how challenging it is to witness a loved one struggle to express how they feel. We have not identified any indications of failings in the IRP’s consideration of Mr O’s needs as they relate to Communication. We therefore will not consider this aspect of the complaint any further.
Cognition
42. Mrs O complains about how the IRP considered the domain of Cognition, and says Mr O met the criteria for a Severe level of need in this domain.
43. Mrs O says her husband: • was occasionally disoriented to person, could not always remember the past, and was unable to remember appointments, events, or what he wanted • did not have capacity to be involved in the CHC application process.
44. The IRP agreed with the ICB in its assessment of a Moderate level of need in this domain.
45. The DST defines Severe needs in this domain as, ‘Cognitive impairment that may, for example, include, marked short or long-term memory issues, or severe disorientation to time, place or person. The individual is unable to assess basic risks even with supervision, prompting or assistance, and is dependent on others to anticipate their basic needs and to protect them from harm, neglect or health deterioration.’
46. The DST defines Moderate needs in this domain 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.’
47. The descriptor of a Severe level of need says the person has ‘marked short or long-term memory issues, or severe disorientation to time, place or person’, whereas Mr O had occasional memory loss. Mr O not having capacity to be involved in the CHC process matches the descriptor for a Moderate level of need which says ‘the individual has limited ability even with supervision, prompting or assistance to make decisions about some aspects of their lives’.
48. We have not identified any indications of failings in the IRP’s consideration of Mr O’s needs as they relate to Cognition. We therefore will not consider this aspect of the complaint any further.
Behaviour
49. Mrs O complains about how the IRP considered the domain of Behaviour, and says Mr O met the criteria for a High level of need in this domain.
50. Mrs O says her husband: • was at risk of falls due to his keenness to be independent • was at risk with his diabetes due to his occasional refusal of meals • occasionally refused care without having the capacity to do so for legitimate reasons.
51. The IRP disagreed with the ICB in its assessment of a Low level of need in this domain, and agreed Mr O had a Moderate level of need.
52. The DST defines High needs in this domain as, ‘‘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.’
53. The DST defines Moderate needs in this domain 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.’
54. We recognise the descriptor for a High level of need includes ‘challenging’ behaviour that poses a predictable risk. We need to consider whether a keenness to be independent would constitute ‘challenging’ behaviour. The DST provides a list of what it considers challenging behaviour to include, including ‘severe disinhibition’, which is a high bar. Regardless, the IRP have considered the evidence regarding Mr O’s risk of falls due to his keenness to be independent when coming to its view, and we would not ask them to do any more than this. An occasional refusal of meals or care would match the descriptor of a Moderate level of need which says, ‘The individual is nearly always compliant with care.’
55. We have not identified any indications of failings in the IRP’s consideration of Mr O’s needs as they relate to Behaviour. We therefore will not consider this aspect of the complaint any further.
Drug Therapies and Medication
56. Mrs O complains about how the IRP considered the domain of Drug Therapies and Medication, and says Mr O met the criteria for a High level of need in this domain.
57. Mrs O says her husband: • needed carers and nurses to monitor his blood sugar • was being prescribed gabapentin at the time of the DST, which needed monitoring.
58. The IRP disagreed with the ICB in its assessment of a Low level of need in this domain, and agreed Mr O had a Moderate level of need.
59. The DST defines High needs in this domain as, ‘Requires administration and monitoring of medication regime by a registered nurse, carer or care worker specifically trained for the task because there are risks associated with the potential fluctuation of the medical condition or mental state, or risks regarding the effectiveness of the medication or the potential nature or severity of side-effects. However, with such monitoring the condition is usually nonproblematic to manage.’ or ‘Moderate pain or other symptoms which is/are having a significant effect on other domains or on the provision of care.’
60. The DST defines Moderate needs in this domain as, ‘Requires the administration of medication (by a registered nurse, carer or care worker) due to: non-compliance, or type of medication (for example insulin), or route of medication (for example PEG).’ or ‘Moderate pain which follows a predictable pattern; or other symptoms which are having a moderate effect on other domains or on the provision of care.’
61. All medications provided to patients in a care home setting need staff to monitor them. The descriptor of a High level of need says that the monitoring of the medication regime needs to be by a member of staff ‘specifically trained for the task’, which was not the case for Mr O.
62. We have not identified any indications of failings in the IRP’s consideration of Mr O’s needs as they relate to Drug Therapies and Medication. We therefore will not consider this aspect of the complaint any further.
Nature
63. Mrs O complains about how the IRP considered the nature of her husband’s needs.
64. Mrs O also says the IRP did not address four of the questions set out in the National Framework, and did not properly consider the other two.
65. The National Framework says, ‘Nature: This describes 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.’
66. The National Framework also says, ‘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?’
67. The questions provided by the National Framework are ones which an IRP ‘may’ use to consider the nature of an individual’s needs.
68. The IRP set out its consideration of Mr O's needs, the effect of those needs, and the interventions required to manage them.
69. We have not identified any indications of failings in the IRP’s consideration of the nature of Mr O’s needs. We therefore will not consider this aspect of the complaint any further.
Intensity
70. Mrs O complains about how the IRP considered the intensity of her husband’s needs.
71. Mrs O also says the IRP did not properly consider any of the five questions set out in the National Framework.
72. The National Framework says, ‘Intensity: This relates 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’).’
73. The National Framework also says, ‘Questions that may help to consider this include: • 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 needs over several domains?’
74. The questions provided by the National Framework are ones which an IRP ‘may’ use to consider the intensity of an individual’s needs.
75. The IRP set out its consideration of the extent and severity of Mr O’s needs, and the support required to meet them.
76. We have not identified any indications of failings in the IRP’s consideration of the intensity of Mr O’s needs. We therefore will not consider this aspect of the complaint any further.
Complexity
77. Mrs O complains about how the IRP considered the complexity of her husband’s needs.
78. Mrs O also says the IRP did not properly consider any of the seven questions set out in the National Framework.
79. The National Framework says, ‘Complexity: This is concerned with 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.’
80. The National Framework also says, ‘Questions that may help to consider this include: • 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?’
81. The questions provided by the National Framework are ones which an IRP ‘may’ use to consider the complexity of an individual’s needs.
82. The IRP set out its consideration of how Mr O’s needs presented and interacted, and the skill required to meet them.
83. We have not identified any indications of failings in the IRP’s consideration of the complexity of Mr O’s needs. We therefore will not consider this aspect of the complaint any further.
Unpredictability
84. Mrs O complains about how the IRP considered the unpredictability of her husband’s needs.
85. Mrs O also says the IRP did not address any of the six of the questions set out in the National Framework.
86. The National Framework says, ‘Unpredictability: This describes 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.’
87. The National Framework also says, ‘Questions that may help to consider this include: • Is the individual or those who support him/her able to anticipate when the need(s) 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 respond spontaneously and appropriately?
• What level of monitoring/review is required?’
88. The questions provided by the National Framework are ones which an IRP ‘may’ use to consider the unpredictability of an individual’s needs.
89. The IRP set out its consideration of whether Mr O’s needs fluctuated, whether he was rapidly deteriorating, and the risk involved in his care.
90. We have not identified any indications of failings in the IRP’s consideration of the unpredictability of Mr O’s needs. We therefore will not consider this aspect of the complaint any further.
Incidental and ancillary test
91. Mrs O complains about how the IRP considered the incidental and ancillary test.
92. Mrs O says her husband required input from the SALT team and the physiotherapist, which is beyond the remit of social care.
93. The IRP recognised Mr O required input from nursing and other health services, but concluded this was ‘not more than incidental or ancillary to the provision of accommodation which local authority social services are under a duty to provide or were not of a nature beyond which a local authority whose primary responsibility is to provide social services could be expected to provide.’
94. We have not identified any indications of failings in the IRP’s consideration of the incidental and ancillary test. We therefore will not consider this aspect of the complaint any further.
Eligibility decision
95. Mrs O complains about how the IRP considered Mr O’s eligibility, given the domain weightings it agreed with.
96. The National Framework says, ‘Although the tool supports the process of determining eligibility and ensures consistent and comprehensive consideration of an individual’s needs, it cannot directly determine eligibility. Indicative guidelines as to threshold are set out in the tool (for example, if one area of need is at Priority level, then this demonstrates a primary health need), but these are not to be viewed prescriptively. Professional judgement should be exercised in all cases to ensure that the individual’s overall level of need is correctly determined. The tool is to aid decision-making in terms of whether the nature, complexity, intensity or unpredictability of a person’s needs are such that the individual has a primary health need.’
97. The IRP set out its consideration of whether it believed Mr O had a primary health need, given the domain weightings, the four key characteristics and the incidental and ancillary test, and concluded he did not.
98. We have not identified any indications of failings in the IRP’s consideration of Mr O’s eligibility. We therefore will not consider this aspect of the complaint any further.
Conclusion
99. We understand how difficult it is to witness a partner’s health deteriorate and we do not want to take away from Mrs O’s experience. We will not be considering Mrs O’s complaint any further for the reasons set out above.
100. We thank Mrs O for bringing us her complaint for our consideration, and wish her all the best for the future.