What does the National Framework say? Highlighted version

The National Framework can be downloaded as  a pdf from the GOV.UK website. For your reference, here is the wording from Part 1, as accessed March 16th 2014.
(Check here for the most recent version.)
See this same page without highlights.

The National Framework – Summary

1.  This guidance sets out the principles and processes of the National Framework for NHS continuing healthcare and NHS-funded nursing care. It concentrates mainly on the process for establishing eligibility for NHS continuing healthcare and the principles of care planning and dispute resolution relevant to that process, rather than specifying every detail of the planning of NHS continuing healthcare.

 Actions

2.  CCGs and the NHS Commissioning Board (the Board) will assume responsibilities for NHS continuing healthcare from 1 April 2013.

3.  The Board will assume commissioning responsibilities for some specified groups of people, for example for prisoners and military personnel.   It therefore follows that the Board will have statutory responsibility for commissioning NHS continuing healthcare, where necessary, for those groups for whom it has commissioning responsibility.  This will include case coordination, arranging completion of the Decision Support Tool, decision-making, arranging appropriate care packages, providing or ensuring the provision of case management support and monitoring and reviewing the needs of individuals.   It will also include  reviewing  decisions  with  regards  to  eligibility  where  an  individual  wishes  to challenge that decision.

4.  Where an application is received for a review of a decision made by the Board, it must ensure that in organising a review of that decision, it makes appropriate arrangements to do so, so as to avoid any conflict of interest.

5.  Throughout the Framework where a CCG is referred to, the responsibilities will also apply to the Board in these limited circumstances.

6.   CCGs, and where relevant, the Board should consider how the principles and processes in this guidance relate to what is currently in place, and should align their processes accordingly. They should also consider where NHS continuing healthcare responsibilities require clearer arrangements to be made with provider organisations, and should ensure that these are built into commissioning processes. CCGs should consider how to respond to the commitment in the NHS mandate to the NHS Commissioning Board that patients who could benefit will have the option to hold their own personal health budget.

7.   The Board should help facilitate this process. There is a requirement for the Board to operate independent review panels of decisions. Guidance on the operation of panels is set out in this Framework.  The Board should also be mindful of their own responsibilities – and those of CCGs – as set out in the ‘Governance’ section below.

8.    Local authorities (LAs) should consider this guidance and review whether their current practice fits with the responsibilities outlined below.

9.   Provider organisations should consider the relevant sections of this guidance as they review their current hospital discharge procedures.

10. Provider organisations should also consider their general duty of care to individuals (in the context of any relevant Care Quality Commission requirements) and any contractual obligations in relation to NHS continuing healthcare. In particular they should ensure that individuals who may require a full assessment of eligibility are referred to the CCG, and that  accurate  records  regarding  the  needs  of  individuals  are  made  available,  as appropriate, in the assessment and review process.

11. CCGs (and where relevant, the Board) and LAs should work together collaboratively when they review existing processes.

12. The Board, CCGs and LAs must comply with their responsibilities, as set out in the Standing Rules Regulations and Directions, as appropriate, to be issued in relation to NHS continuing healthcare.

Background

13. ‘NHS continuing healthcare’ means a package of ongoing care that is arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in this guidance. Such care is provided to an individual aged 18 or over, to meet  needs that have  arisen  as a  result of  disability,  accident or illness.  The  actual services provided as part of the package should be seen in the wider context of best practice and service development for each client group. Eligibility for NHS continuing healthcare places no limits on the settings in which the package of support can be offered or on the type of service delivery.

14. ‘NHS-funded   nursing care’  is the funding provided  by the  NHS  to homes providing nursing to support the provision of nursing care by a registered nurse. Since 2007 NHS- funded nursing care has been based on a single band rate. In all cases individuals should be considered for eligibility for NHS continuing healthcare before a decision is reached about the need for NHS-funded nursing care.

15. Individuals who need ongoing care/support may require services arranged by CCGs and/or LAs. CCGs and LAs therefore have a responsibility to ensure that the assessment of eligibility for care/support and its provision take place in a timely and consistent manner. If a person does not qualify for NHS continuing healthcare, the NHS may still have a responsibility to contribute to that person’s health needs – either by directly commissioning services or by part-funding the package of support. Where a package of support is commissioned or funded by both an LA and a CCG, this is known as a ‘joint package’ of care (see paragraphs 113 -117). A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a LA to meet. The joint package could also involve the CCG and the LA both contributing to the cost of the care package, or the CCG commissioning part of the package. Joint packages of care may be provided in a nursing or residential care home, or in a person’s own home.

16. Personal health budgets give patients real control and choice over how to meet their healthand care needs.  Over 60 sites took part in a pilot programme to understand how they can benefit those who need them the most, and how best they should be implemented.  The evaluation of the pilot was completed in Autumn 20125.  A personal health budget is not new money, but rather enables people to use funding in different ways, ways that work for them.    More  information  on  personal  health  budgets  including  a  toolkit  which  brings together learning from pilot and good practice examples is available6

17. This guidance is based on statutory responsibilities, case law, input from the Parliamentary and Health Service Ombudsman, and comments received from stakeholders. It sets out a process for the NHS, working together with its LA partners wherever practicable, to assess health needs, decide on eligibility for NHS continuing healthcare, and provide that care. It is  to  be  read  in  conjunction  with  the  national  tools  to  support  decision-making:  the Checklist  tool,  the  Decision  Support  Tool  (DST)  and  the  Fast  Track  Pathway  Tool. Separate  notes  are  attached  to  the  tools  themselves  to  explain  how they should  be applied.

Legal Framework

Legislation

18.    Primary legislation governing the health service does not use or define the expressions ‘continuing care’, ‘NHS continuing healthcare’ or ‘primary health need’. However, section 1 of the National Health Service Act 2006 (the 2006 Act) (as amended by the Health and Social Care Act 2012) requires the  Secretary of  State  to continue the promotion  in England of a comprehensive health service, designed to secure improvement:

a) in the physical and mental health of the people of England; and b) in the prevention, diagnosis and treatment of illness.

Section 1A of the 2006 Act further requires the Secretary of State to exercise these functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with:

(a) the prevention, diagnosis or treatment of illness, or

(b) the protection or improvement of public health

19.   Section 1B of the 2006 Act imposes a duty on the Secretary of State to have regard to the NHS Constitution.

20.   Section 1C of the 2006 Act states that, in exercising functions in relation to the health service, the Secretary of State must have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.

5 www.phb.org.uk

6 www.personalhealthbudgets.dh.gov.uk

21.    In addition:

Section 1H of the 2006 Act establishes the Board, an independent body, which will hold CCGs to account for the quality of services they commission, the outcomes they achieved for  patients  and  for  their  financial  performance.  The  Board  also  has  the  power  to intervene where there is evidence that CCGs are failing or are likely to fail to fulfil their functions. The specific functions of the Board, such as commissioning specialised services, are conferred elsewhere 2006 Act. Like the Secretary of State, the Board is subject to the duty to promote the comprehensive health service (other than in respect of those services falling within the public health functions of the Secretary of State or local authorities).

Subsection (3) of section 1H also provides that, in order to fulfil this general duty, the

Board has two specific functions:

(a)  it must commission services in accordance with the 2006 Act. The services which the Board may be required to commission are described in section 3B of the 2006 Act and include services which can be more effectively commissioned at national level, or which  it  would  be  inappropriate  or  impractical  for  CCGs  to  commission.  Those services include prison health services and health services for the members of the armed forces and their families; and

(b) when exercising functions in relation to CCGs (for example, when issuing commissioning guidance)

Section 3 of the 2006 Act requires CCGs to provide a range of services, to such an extent as they consider necessary to meet all reasonable requirements. These services must include, amongst other categories, ‘such other services or facilities for the prevention of illness, the care of persons suffering from illness7, and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service’ (section 3 (1)(e) of the 2006 Act).

22.    In  summary,  under  the  amended  2006  Act,  the  Board  will,  from  1  April  2013,  be responsible for ensuring that the NHS delivers better outcomes for patients within its available resources by supporting, developing and performance managing an effective system of CCGs. The Board will also take responsibility for commissioning services that can only be provided efficiently and effectively at a national or a regional level.

23.    The Secretary of State for Health will remain accountable for the NHS. The amendments to the 2006 Act do not change the Secretary of State’s core duty to promote a comprehensive health service, which dates back to the founding NHS Act of 1946. The Secretary  of  State  must  bear  this  duty  in  mind  whenever  he  exercises  any  of  his functions.

24.    Each LA is under a duty to assess any person who appears to it to be in need of community care services (section 47 of the National Health Service and Community Care Act 1990). Community care services may include residential accommodation for persons

7 In the context of the 2006 Act, ‘’illness’’ includes mental disorder within the meaning of the Mental Health Act

1983 (c. 20) and any injury or disability requiring medical or dental treatment or nursing (NHS Act 2006, section

275(1))

who, by reason of age, illness or disability are in need of care and attention that is not otherwise available to them (section 21 of the National Assistance Act 1948), as well as domiciliary and community-based services to enable people to continue to live in the community. The LA, having regard to the result of that assessment, must then decide whether the person’s needs call for the provision of community care services. The LA must also notify the relevant CCG if, in carrying out the assessment, it becomes apparent to the authority that the person has needs which may fall under the 2006 Act, and invite the CCG to assist in making the assessment (see section 47(3) of the National Health Service and Community Care Act 1990).

25.   If an NHS body is assessing a person’s needs (whether or not potential eligibility for NHS continuing healthcare has been identified) and the assessment indicates a potential need for community care services that may fall within an LA’s responsibilities, it should notify the LA of this in order for the LA to then fulfil its responsibilities.

26.  Section 21(8) of the National Assistance Act 1948 states that nothing in section 21 authorises or requires an LA to make any provision that is authorised or required to be provided under the 2006 Act.  This was considered by the Court of Appeal in Coughlan, where it was held that an LA is excluded from providing services if the NHS has, in fact, decided to provide those services (see paragraph 30 below for more on the Coughlan judgement):

Section 21 should not be regarded as preventing a local authority from providing any health services. The subsection’s prohibitive effect is limited to those health services which, in fact, have been authorised or required to be provided under the 2006 Act. Such health services would not therefore include services which the Secretary of State legitimately decided under section 3(1) of the 2006 Act it was not necessary for the NHS to provide.

27.   LAs also have the function of providing welfare services under section 29 of the National Assistance Act 1948 (which includes functions under section 2 of the Chronically Sick and Disabled Persons Act 1970). Section 29(6)(b) of the National Assistance Act 1948 only prohibits LAs from providing such services under section 29 as are ‘required’ to be provided under the 2006 Act and so excludes only those services that must, as a matter of law, be provided under the 2006 Act.

28.  Section 49 of the Health and Social Care Act 2001 prohibits LAs from providing, or arranging for the provision of, nursing care by a registered nurse in connection with the provision by them of community care services. ‘Nursing care by a registered nurse’ is defined as ‘services provided by a registered nurse and involving either the provision of care or the planning, supervision or delegation of the provision of care other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse’.

29.   Deciding on the balance between LA and NHS responsibilities with respect to continuing care has been the subject of key court judgments.

Case law

30.   The decision of the Court of Appeal in R v North and East Devon Health Authority, ex parte Coughlan (1999) considered the responsibilities of health authorities and LAs for social service provision, in particular the limits on the provision of nursing care (in a broad sense, i.e. not just registered nursing care) by LAs. This case was decided before the enactment of section 49 of the Health and Social Care Act 2001. The key points from this judgment are set out at Annex B. The court set out a very general indication of the limit of LA provision in the context of a person living in residential accommodation, saying that if the nursing services are:

a) merely incidental or ancillary to the provision of the accommodation that an LA is under a duty to provide, pursuant to section 21 of the National Assistance Act 1948; and

b) of a nature that an authority whose primary responsibility is to provide social services can be expected to provide then such nursing services can be provided under section 21 of the National Assistance Act 1948.

31.   Since the enactment of the Health and Social Care Act 2001, care from a registered nurse cannot be provided by the LA as part of community care services. Nevertheless, the extent of care supported by the NHS-funded nursing care contribution is still to be considered as ‘incidental and ancillary’ in the sense described in Coughlan.

32.   Eligibility for NHS continuing healthcare must always be considered, and a decision made and recorded (either at the Checklist or DST stage), prior to any consideration of eligibility for NHS-funded nursing care. The interaction between NHS continuing healthcare and NHS-funded nursing care was further considered by the High Court in R v Bexley NHS Trust, ex parte Grogan (2006). The key points from this judgment are set out at Annex C.

Practice Guidance Notes – see Part 2 of document.

Page 50:  Is there an authoritative definition of ‘beyond  the responsibility of the Local authority’?

Page 50:  What is the difference between a healthcare  need and a social care need?

Primary Health Need

33.   To assist in deciding which treatment and other health services it is appropriate for the NHS to provide under the 2006 Act, and to distinguish between those and the services that LAs may provide under section 21 of the National Assistance Act 1948, the Secretary of State has developed the concept of a ‘primary health need’. Where a person has been assessed to have a ‘primary health need’, they are eligible for NHS continuing healthcare. Deciding whether this is the case involves looking at the totality of the relevant needs. Where  an  individual  has  a  primary  health  need  and  is  therefore  eligible  for  NHS continuing  healthcare,  the  NHS  is  responsible  for  providing  all  of  that  individual’s assessed health and social care needs – including accommodation, if that is part of the overall need.

34.   There should be no gap in the provision of care. People should not find themselves in a situation where neither the NHS nor the relevant LA (subject to the person meeting the relevant means test and having needs that fall within their eligibility criteria for adult social care8) will fund care, either separately or together. Therefore, the ‘primary health need’ test should be applied, so that a decision of ineligibility for NHS continuing healthcare is only possible where, taken as a whole, the nursing or other health services required by the individual:

a) are no more than incidental or ancillary to the provision of accommodation which LA social services are, or would be but for a person’s means, under a duty to provide; and

b) are not of a nature beyond which an LA whose primary responsibility it is to provide social services could be expected to provide

35.   There are certain limitations to this test, which was originally indicated in Coughlan: neither the CCG, nor the LA can dictate what the other agency should provide.  Instead, a practical approach to eligibility is required – one that will apply to a range of different circumstances, including situations in which the ‘incidental or ancillary’ test is not applicable because, for example, the person is to be cared for in their own home. Certain characteristics of need – and their impact on the care required to manage them – may help determine whether the ‘quality’ or ‘quantity’ of care required is more than the limits of an LA’s responsibilities, as outlined in Coughlan:

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.

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’).

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.

8 See Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care. Guidance on Eligibility Criteria for Adult Social Care, England 2010 http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_113155.pdf

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. Someone with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition.

36.    Each of these characteristics may, alone or in combination, demonstrate a primary health need,  because  of  the  quality  and/or  quantity  of  care  that  is  required  to  meet  the individual’s needs. The totality of the overall needs and the effects of the interaction of needs should be carefully considered.

37.    There will be some circumstances where the quantity or the quality of the individual’s overall general nursing care needs will indicate a primary health need, and thus eligibility for NHS continuing healthcare. CCGs and LAs should be mindful of the extent and nature of NHS-funded nursing care, as set out in the NHS-funded Nursing Care Practice Guide 20129.

38.    It is also important that deterioration is taken into account when considering eligibility, including circumstances where deterioration might reasonably be regarded as likely in the near future. This can be reflected in several ways:

•     Where it is considered that deterioration can reasonably be anticipated to occur before the next planned review, this should be documented and taken into account. This could result in immediate eligibility for NHS continuing healthcare (i.e. before the deterioration has actually occurred). The anticipated deterioration could be indicative of complex or unpredictable needs.

•     Where eligibility is not established at the present time, the likely deterioration could be reflected in a recommendation for an early review, in order to establish whether the individual then satisfies the eligibility criteria.

•     If an individual has a rapidly deteriorating condition that may be entering a terminal phase, they may need NHS continuing healthcare funding to enable their needs to be met urgently (e.g. to allow them to go home to die or appropriate end of life support to be put in place). This would be a primary health need because of the rate of deterioration. In all cases where an individual has such needs, consideration should be given to use of the Fast Track Pathway Tool, as set out in paragraphs 97 – 107.

•     Even when an individual does not satisfy the criteria for use of the Fast Track Pathway Tool, one or more of the characteristics listed in paragraph 35 may well apply to those people approaching the end of their lives, and eligibility should always be considered.

39.       Good practice in end of life care is currently supported through the National End of Life Care Programme10, which works with health and social care services across all sectors

9 http://www.dh.gov.uk/health/2012/11/continuing-healthcare-revisions/

10 http://www.endoflifecareforadults.nhs.uk/

in England to improve end of life care for adults by implementing the Department of Health’s End of Life Care Strategy11.  The principles of the Strategy should be reflected in all NHS continuing healthcare cases that involve individuals with an end of life condition.

40.       To minimise variation in interpretation of  these principles, and to inform consistent decision-making, we have, in conjunction with stakeholders, developed the national Decision Support Tool (DST). The DST supports practitioners in identifying the individual’s needs, which, combined with the practitioners’ skills, knowledge and professional judgement, should enable them to apply the primary health need test in practice, in a way that is consistent with the limits on what can lawfully be provided by an LA, in accordance with the Coughlan and the Grogan judgements.

41.       Further details about the DST and its application are set out below (paragraphs 77 – 89) and in the notes accompanying the tool. Before using the DST, practitioners should ensure that they have obtained evidence from all the necessary assessments (comprehensive and specialist), in line with the core values and principles outlined below.

Practice Guidance Note – see Part 2 of document.

Page 51:  What is a primary  health need?

Core Values and Principles

42.    The process of assessment and decision-making should be person-centred. This means placing the individual, their perception of their support needs, and their preferred models of support at the heart of the assessment and care-planning process. When deciding on how their needs are met, the individual’s wishes and expectations of how and where the care is delivered, and how their personal information is shared, should be documented and taken into account, along with the risks of different types of provision and fairness of access to resources.

43.    Access to assessment, decision-making and provision should be fair and consistent. There should be no discrimination on the grounds of race, disability, gender, age, sexual orientation, religion or belief, or type of health need (for example, whether the need is physical, mental or psychological). The Board and CCGs are responsible for ensuring that discrimination does not occur and should use effective auditing to monitor this matter (see the section on ‘Governance’ below).

44.    Assessments of eligibility for NHS continuing healthcare and NHS-funded nursing care

11 http://www.dh.gov.uk/health/2011/07/end-of-life-care-strategy/

should be organised so that the individual being assessed and their representative12 understand the process, and receive advice and information that will maximise their ability to  participate  in  informed  decision-making  about  their  future  care.  Decisions  and rationales that relate to eligibility should be transparent from the outset for individuals, carers, family and staff alike.

Practice Guidance Note – see Part 2 of document.

Page 53:  What are the key elements of a ‘person-centred’ approach  in NHS continuing healthcare?

Consent

45.   As  with  any  examination  or  treatment,  the  individual’s  informed  consent  should  be obtained before the start of the process to determine eligibility for NHS continuing healthcare.

46.   It should be made explicit to the individual whether their consent is being sought for a specific aspect of the eligibility consideration process (e.g. completion of the Checklist) or for the full process, and for personal information to be shared between different organisations involved in their care. It should also be noted that individuals may withdraw their consent at any time in the process.

47.   If  an  individual  does  not  consent  to  assessment  of  eligibility  for  NHS  continuing healthcare, the potential effect this will have on the ability of the NHS and the LA to provide appropriate services should be carefully explained to them. The fact that an individual declines to be considered for NHS continuing healthcare does not, in itself, mean that an LA has an additional responsibility to meet their needs, over and above the responsibility it would have had if consent had been given. Where there are concerns that an  individual  may have  significant  ongoing needs,  and  that  the  level  of  appropriate support could be affected by their decision not to give consent, the appropriate way forward should be considered jointly by the CCG and the LA, taking account of each organisation’s legal powers and duties. It may be appropriate for the organisations involved to seek legal advice.

12In this Framework the term representative is intended to include any friend, unpaid carer or family member who is supporting the individual in the process as well as anyone acting in a more formal capacity (e.g. welfare deputy or power of attorney, or an organisation representing the individual).

Practice Guidance Notes – see Part 2 of document.

Page 55:  What specific guidance  is there in relation  to dealing with confidentiality?

Page 58:  What happens if an individual with mental capacity  refuses to give consent  to being considered for NHS continuing healthcare  eligibility?

Capacity

48.   If there is a concern that the individual may not have capacity to give consent, this should be determined in accordance with the Mental Capacity Act 200513  and the associated code of practice14.  CCGs should be particularly aware of the five principles of the Act:

•     A presumption of capacity: A person must be assumed to have capacity unless it is established that they lack capacity.

•      Individuals being supported to make their own decisions: A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success.

•     Unwise  decisions: A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

•     Best interests: An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his or her best interests.

•     Least  restrictive option: Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

49.   It  is  important  to  be  aware  that  just  because  an  individual  may  have  difficulty  in expressing their views or understanding some information, this does not in itself mean that they lack capacity. Appropriate support and adjustments should be made available to the person15, in compliance with the Mental Capacity Act 2005 and with disability discrimination legislation.

50.    If the person lacks the mental capacity to either give or refuse consent to the use of the Checklist, a ‘best interests’ decision, taking the individual’s previously expressed views into account, should be taken (and recorded) as to whether or not to proceed with assessment of eligibility for NHS continuing healthcare. The person leading the assessment is responsible for making this decision and should bear in mind the expectation that everyone who is potentially eligible for NHS continuing healthcare should have the opportunity to be considered for eligibility. A third party cannot give or refuse consent for an assessment of eligibility for NHS continuing healthcare on behalf of a person who lacks capacity, unless they have a valid and applicable Lasting Power of Attorney (Welfare) or they have been appointed a Welfare Deputy by the Court of Protection.

13 http://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpga_20050009_en.pdf

14 http://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/mca-code-practice-0509.pdf

15 Section 1(3) and Section 3(2) Mental Capacity Act 2005

51.   Where a ‘best interests’ decision needs to be made, the ‘decision-maker’ must consult16 with any relevant third party who has a genuine interest in the person’s welfare. This will normally include family and friends.  However, third parties should not receive information where the patient has previously made it clear that they do not consent to information being shared with them.

Practice Guidance Note – see Part 2 of document.

Page 58:  What if there are concerns that the individual may lack capacity  to consent  to the completion of a Checklist/DST?

Advocacy

52.    The Mental Capacity Act 2005 created a new statutory service: the Independent Mental Capacity Advocate (IMCA) service. Its purpose is to help vulnerable people who lack capacity and who are facing important decisions made by the NHS and LAs about serious medical treatment or change of residence – for example, moving to a hospital or care home.  An IMCA must be instructed/consulted where an individual lacks capacity in relation to the relevant decision and has no family or friends that are available (or appropriate) for consultation on their behalf.

53.    Even  if  an  individual  does  not  meet  the  criteria  for  use  of  the  IMCA  service,  and regardless of whether or not they lack capacity, they may wish to be supported by an advocate to help to ensure that their views and wishes are represented and taken into account.  CCGs should ensure that individuals are made aware of local advocacy and other services that may be able to offer advice and support, and should also consider whether any strategic action is needed to ensure that adequate advocacy services are available to support those who are eligible or potentially eligible for NHS continuing healthcare. In addition, any person may choose to have a family member or other person (who should operate independently of LAs and CCGs) to act as an advocate on their behalf.

Practice Guidance Notes – see Part 2 of document.

Page 60:  When is it appropriate to involve  an Independent Mental Capacity Advocate  (IMCA)?

Page 60:  Whose responsibility is it to provide  advocacy  for individuals going through the eligibility decision-making process?

Page 61:  Do individuals need to have legal representation during  the NHS 16 Section 4(7) Mental Capacity Act 2005continuing healthcare  eligibility process?

Carers

54.  CCGs and LAs should bear in mind that a carer who provides (or intends to provide) substantial care on a regular basis has a right to have their needs as a carer assessed (Carers   and   Disabled   Children   Act   2000,   as   amended   by   the   Carers   (Equal Opportunities) Act 2004). Should the CCG identify a carer in the course of its assessment process, it should inform them of their right to a carer’s assessment and advise them to contact their LA or, with their permission, refer them for this purpose. CCGs and LAs should be mindful of the approaches set out in the national strategy for carers with reference to Recognised, valued and supported: Next steps for the Carers Strategy17.

Other eligibility issues

55.    Eligibility for NHS continuing healthcare is based on an individual’s assessed needs. The diagnosis of a particular disease or condition is not in itself a determinant of eligibility for NHS continuing healthcare.

56.    NHS continuing healthcare may be provided in any setting (including, but not limited to, a care home, hospice or the person’s own home). Eligibility for NHS continuing healthcare is, therefore, not determined or influenced either by the setting where the care is provided or by the characteristics of the person who delivers the care. The decision-making rationale should not marginalise a need just because it is successfully managed: well- managed needs are still needs. Only where the successful management of a healthcare need has permanently reduced or removed an ongoing need, such that the active management of this need is reduced or no longer required, will this have a bearing on NHS continuing healthcare eligibility.

57.    Financial issues should not be considered as part of the decision on an individual’s eligibility  for  NHS  continuing  healthcare,  and  it  is  important  that  the  process  of considering and deciding eligibility does not result in any delay to treatment or to appropriate care being put in place.

58.    The reasons given for a decision on eligibility should NOT be based on the:

a.  person’s diagnosis;

b.  setting of care;

c.  ability of the care provider to manage care;

d.  use (or not) of NHS-employed staff to provide care;

e.  need for/presence of ‘specialist staff ’ in care delivery;

f.    the fact that a need is well managed;

g.  the existence of other NHS-funded care; or

17

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_122393.pdf

h.  any other input-related (rather than needs-related) rationale.

59.   The  NHS’s  responsibility  to  commission,  procure  or  provide  care,  including  NHS continuing healthcare, is not indefinite, as needs could change. This should be made clear to the individual and their family. Regular reviews are built into the process to ensure that the care package continues to meet the person’s needs.

Practice Guidance Note – see Part 2 of document.

Page 61:  How should  the well-managed need principle be applied?

Assessments

60.   Establishing that an individual’s primary need is a health need requires a clear, reasoned decision, based on evidence of needs from a comprehensive assessment.   A good- quality assessment 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. It is important that those contributing to the comprehensive assessment have the relevant skills and knowledge. It is best practice that where the individual concerned has, for example a learning disability, or a brain injury, someone with specialist knowledge of this client group is involved in the assessment process.

61.    The comprehensive assessment of an individual’s care and support needs informs the assessment of whether or not they are entitled to NHS continuing healthcare. However, regardless of whether the individual is determined to be eligible for NHS continuing healthcare, CCGs and LAs should always consider whether the assessment of needs has identified issues that require action to be taken. For example, if an assessment of needs indicates that the individual has significant communication difficulties, referral to a speech and language service should be considered.

Practice Guidance Note – see Part 2 of document.

Page 62:  Dealing openly with issues of risk

Eligibility Consideration

Figure 1: (see pdf for image)  Overall process for determining eligibility for NHS continuing healthcare (NHS CHC) and the NHS elements of joint packages of care (including NHS-funded nursing care). Please see main text for explanation.

Hospital  Discharge

62.  In a hospital setting, before an NHS trust, NHS foundation trust or other provider organisation gives notice of an individual’s case to an LA, in accordance with section 2(2) of the Community Care (Delayed Discharges etc.) Act 2003, it must take reasonable steps to ensure that an assessment for NHS continuing healthcare is carried out in all cases where it appears to the body that the patient may have a need for such care. This should be in consultation, as appropriate, with the relevant LA.

63.   CCGs should ensure that local protocols are developed between themselves, other NHS bodies, LAs and other relevant partners. These should set out each organisation’s role and how responsibilities are to be exercised in relation to delayed discharge and NHS continuing healthcare, including responsibilities with regard to the decision-making on eligibility. There should be processes in place to identify those individuals for whom it is appropriate to use the Checklist and, where the Checklist indicates that they may have needs that would make them eligible for NHS continuing healthcare, for full assessment of eligibility to then take place.

64.   Assessment of eligibility for NHS continuing healthcare can take place in either hospital or non-hospital settings. It should always be borne in mind that assessment of eligibility that takes place in an acute hospital may not always reflect an individual’s capacity to maximise their potential. This could be because, with appropriate support, that individual has the potential to recover further in the near future. It could also be because it is difficult to make an accurate assessment of an individual’s needs while they are in an acute services environment. Anyone who carries out an assessment of eligibility for NHS continuing healthcare should always consider whether there is further potential for rehabilitation  and  for  independence  to  be  regained,  and  how  the  outcome  of  any treatment or medication may affect ongoing needs.

65.  In order to address this issue and ensure that unnecessary stays on acute wards are avoided, there should be consideration of whether the provision of further NHS-funded services is appropriate. This might include therapy and/or rehabilitation, if that could make a difference to the potential of the individual in the following few months. It might also include intermediate care or an interim package of support in an individual’s own home or in a care home. In such situations, assessment of eligibility for NHS continuing healthcare should usually be deferred until an accurate assessment of future needs can be made. The interim services (or appropriate alternative interim services if needs change) should continue in place until the determination of eligibility for NHS continuing healthcare has taken place. There must be no gap in the provision of appropriate support to meet the individual’s needs.

66.    Where NHS-funded care, other than on an acute ward, is the next appropriate step after hospital treatment, this does not trigger the responsibilities under the Community Care (Delayed Discharges etc.) Act 2003.

67.    Whenever an individual outside a hospital setting is having their health or social needs assessed or reviewed by a CCG or an LA, consideration should always be given to whether their needs suggest that it might be appropriate to use the Checklist (see below) to identify whether or not there is potential eligibility for NHS continuing healthcare.

Checklist

68.   The first step in the process for most people will be a screening process, using the NHS continuing healthcare Checklist – unless it is deemed appropriate for the Fast Track Pathway Tool to be used at this stage (see paragraphs 97 – 107) or for other NHS-funded services to be provided (see paragraph 65). In an acute hospital setting, the Checklist should not be completed until the individual’s needs on discharge are clear. The purpose of  the  Checklist  is  to  encourage  proportionate  assessments,  so  that  resources  are directed towards those people who are most likely to be eligible for NHS continuing healthcare, and to ensure that a rationale is provided for all decisions regarding eligibility.

69.   Standing Rules Regulations make it clear that if the CCG is to use any screening tool, that tool must be the NHS Continuing Healthcare Checklist. They may, if they wish, directly move to a full MDT assessment for an individual without using a Checklist. However, a CCG cannot use a different tool or method for screening for NHS continuing healthcare.

70.    Standing Rules Regulations require a CCG to take reasonable steps to ensure that individuals are assessed for NHS continuing healthcare in all cases where it appears that there may be a need for such care.

71.   Before the Checklist is applied, it is necessary to ensure that the individual and (where appropriate) their representative understand that the Checklist does not necessarily indicate that the individual will be eligible for NHS continuing healthcare – only that they are entitled to consideration for eligibility.

72.   The threshold at this stage of the process has intentionally been set low, in order to ensure that all those who require a full consideration of their needs have this opportunity. However, there may also be circumstances where a full assessment for NHS continuing healthcare is appropriate even though the individual does not apparently meet the indicated threshold set out at paragraph 21 of the Checklist user notes.

73.   A nurse, doctor, other qualified healthcare professional or social care professional could apply  the  Checklist  to  refer  individuals  for  a  full  assessment  of  eligibility  for  NHS continuing healthcare from either a community or a hospital setting. Whoever applies the checklist should be familiar with, and have regard to, the content and principles of this guidance and the Decision Support Tool (see paragraphs 77 – 89).

74.    Where the Checklist has been used as part of the process of discharge from an acute hospital, and has indicated a need for full assessment of eligibility (or where a Checklist is not used, a full assessment of eligibility would otherwise take place), a decision may be made at this stage first to provide other services and then to carry out a full assessment of eligibility at a later stage. This should be recorded. The relevant CCG should ensure that full assessment of eligibility is carried out once it is possible to make a reasonable judgement about the individual’s ongoing needs. This full consideration should be completed in the most appropriate setting – whether another NHS institution, the individual’s home or some other care setting. In the interim, the relevant CCG retains responsibility for funding appropriate care.

75.    No individual should be left without appropriate support while they await the outcome of the decision-making process.

76.    Whatever the outcome of the Checklist – whether or not a referral for a full assessment for NHS continuing healthcare eligibility is considered necessary – the decision (including the reasons why the decision was reached) should be communicated clearly and in writing to the individual and (where appropriate) their representative, as soon as is reasonably practicable. Where the outcome is not to proceed to full assessment of eligibility, the written decision should also contain details of the individual’s right to ask the CCG to reconsider the decision. The CCG should give such requests due consideration, taking account of all the information available, including additional information from the individual or carer. A clear and written response should be given to the individual and (where appropriate) their representative, as soon as is reasonably practicable. The response should also give details of the individual’s rights under the NHS complaints procedure as enshrined in the NHS Constitution.

Practice Guidance Notes – see Part 2 of document.

Screening for NHS Continuing Healthcare – the Use of the Checklist Tool

Page 63:  How does NHS continuing healthcare  fit with hospital discharge procedures?

Page 64:  How does NHS continuing healthcare  link with intermediate care?

Page 65:  What is the NHS continuing healthcare  Checklist?

Page 65:  Does everyone need to have a Checklist completed?

Page 66:  Who can complete  a Checklist?

Page 66:  When should  a Checklist be completed if the individual is in hospital?

Page 67:  When should  the Checklist be completed if the individual is in the community or in a care setting  other than hospital?

Page 67:  Who needs to be present when a Checklist is completed?

Page 68:  What information needs to be given to the individual when completing a Checklist?

Page 68:  What should  happen once the Checklist has been completed?

Page 69:  What evidence is required  for completion of the Checklist?

Page 69:  Can registered nurses in care home settings complete  a Checklist Tool?

Page 69:  Can someone self-refer  by completing a Checklist themselves?

Decision  Support  Tool

77.   Once an individual has been referred for a full assessment for NHS continuing healthcare (following use of the Checklist or, if a Checklist is not used in an individual case, following direct referral for full consideration), then, irrespective of the individual’s setting, the CCG has responsibility for coordinating the whole process until the decision on funding has been made and a care plan agreed. The CCG should identify an individual (or individuals) to carry out this coordination role, which is pivotal to the effective management of the assessment and decision-making process. By mutual agreement, the coordinator may either be a CCG member of staff or be from an external organisation.

78.   Even when there is no eligibility for NHS continuing healthcare, care planning for those individuals with ongoing needs, including the consideration of need for NHS-funded nursing care, will still be necessary (see the section on ‘Commissioning, Care Planning and Provision’ below).

79.   The Decision Support Tool should be used following a comprehensive multidisciplinary assessment of an individual’s health and social care needs and their desired outcomes. If a multidisciplinary assessment has recently already been completed, this may be used but care should be taken to ensure that it provides an accurate reflection of current need.

80.    The multidisciplinary assessment that informs completion of the Decision Support Tool should be carried out with the knowledge and consent of the individual, and they should be given every opportunity to participate in the assessment. The individual should be given the option of being supported or represented by a carer, relative or advocate, if they so wish. The assessment process should draw on those who have direct knowledge of the individual and their needs. It should also make use of existing specialist assessments, and should make referrals for other specialist assessments whenever that is appropriate in light of the individual’s care needs.

81.    The Decision Support Tool is not an assessment in itself. Rather, it is a way of bringing together and applying evidence in a single practical format, to facilitate consistent, evidence-based decision-making regarding NHS continuing healthcare eligibility. The evidence and the decision-making process should be accurately and fully recorded.

82.    The multidisciplinary assessment should be in such a format that it can also be used to assist the CCG and LA to meet care needs regardless of eligibility for NHS continuing healthcare.

83.    The involvement of LA colleagues as well as health professionals in the assessment process will streamline the process of care planning and will make decision-making more effective  and  consistent.  Standing  Rules18    require  that,  as  far  as  is  reasonably practicable, the CCG should consult with the relevant LA before making any decision about an individual’s eligibility for NHS continuing healthcare. If an LA is consulted, there is  a  requirement  for  it  to  provide  advice  and  assistance  to  the  CCG,  as  far  as  is reasonably practicable. If an LA has carried out a community care assessment, it should, as far as is reasonably practicable, use the information obtained from it when providing

18 National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 advice and assistance to the CCG. LAs should also advise the CCG of any information they have on changed needs since the community care assessment was completed. As with any assessments that they carry out, LAs should not allow an individual’s financial circumstances to affect its decision to participate in a joint assessment.

84.    The Decision Support Tool is designed to ensure that the full range of factors that have a bearing on an individual’s eligibility are taken into account in reaching the decision, irrespective of their client group or diagnosis. The tool provides practitioners with a framework to bring together and record the various needs in 12 ‘care domains’, or generic areas of need. The domains are sub-divided into statements of need, representing low, moderate, high, severe or priority levels of need, depending on the domain. The care domains are:

1. Behaviour

2. Cognition

3. Psychological and emotional needs

4. Communication

5. Mobility

6. Nutrition – food and drink

7. Continence

8. Skin (including tissue viability)

9. Breathing

10. Drug therapies and medication: symptom control

11. Altered states of consciousness

12. Other significant care needs.

85.  Completion of the tool should result in an overall picture of the individual’s needs that captures their nature, and their complexity, intensity and/or unpredictability – and thus the quality and/or quantity (including continuity) of care required to meet the individual’s needs. Figure 2 indicates how the domains in the Decision Support Tool can illustrate the complexity,  intensity  and  unpredictability  of  needs.  The  overall  picture,  and  the descriptors within the domains themselves, also relate to the nature of needs.

Figure  2:  (see pdf for image) How  the  domains  help  build  up  a  picture  of  complexity,  intensity  and unpredictability. Within the 12 care domains, N = No, L = Low, M = Moderate, H = High, S = Severe and P = Priority.

86.    In certain cases, an individual may have particular needs that are not easily categorised by the care domains described here. In such circumstances, it is the responsibility of the assessors to determine the extent and type of the need and to take that need into account (and record it in the 12th care domain) when deciding whether a person has a primary health need.

87.    The multidisciplinary team should use the Decision Support Tool to set out the evidence and enable them to consider not just the overall needs, but also the interaction between the needs, and evidence from relevant risk assessments.

88.    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.

89.    Once   the   multidisciplinary   team   has   reached   agreement,   it   should   make   a recommendation to the Board or a CCG on eligibility.

Practice Guidance Notes – see part 2 of document.

Multidisciplinary Assessment, Completion of the DST and Making Recommendations

Page 70:  What is the role of the NHS continuing healthcare  coordinator?

Page 71:  Why isn’t the DST an assessment tool?

Page 71:  What are the elements of a good multidisciplinary assessment?

Page 73:  Potential  Sources  of Information/Evidence:

Page 74:  What is a Multidisciplinary team in the context  of NHS continuing healthcare?

Page 75:  What happens if the coordinator is unable to engage relevant professionals to attend an MDT meeting?

Page 75:  Where should  an MDT meeting take place?

Page 76:   What process  should  be used by MDTs to ensure consistency when completing the DST?

Page 77:  What is proportionate and reasonable  in terms of evidence required  to support domain levels and the recommendation in a DST?

Page 77:  What happens if MDT members cannot agree on the levels within  the domains  of the DST?

Page 78:  What happens if the individual concerned or their representative disagrees  with any domain level when the DST is completed?

Page 78:  What does the DST recommendation need to cover?

Page 80:  How does the Decision  Support  Tool (DST) and primary  health need eligibility test apply to people with learning  disabilities?

Decision-making

90.   CCGs should be aware of cases that have indicated circumstances in which eligibility for NHS continuing healthcare should have been determined, and where such an outcome would be expected if the same facts were considered in an assessment for NHS continuing healthcare under the National Framework (e.g. Coughlan or those cases in the Health Service Ombudsman’s report on NHS funding for the long-term care of older and disabled people). However, they should be wary of trying to draw generalisations about eligibility for NHS continuing healthcare from the limited information they may have about those cases. There is no substitute for a careful and detailed assessment of the needs of the individual whose eligibility is in question.

91.   The CCG may choose to use a panel to ensure consistency and quality of decision- making. However, a panel should not fulfil a gate-keeping function, and nor should it be used as a financial monitor. Only in exceptional circumstances, and for clearly articulated reasons, should the multidisciplinary team’s recommendation not be followed. A decision not to accept the recommendation should never be made by one person acting unilaterally.

92.   The CCG may ask a multidisciplinary team to carry out further work on a Decision Support Tool if it is not completed fully or if there is a significant lack of consistency between the evidence recorded in the Decision Support Tool and the recommendation made. However, the CCG should not refer a case back, or decide not to accept a recommendation, simply because the multidisciplinary team has made a recommendation that differs from the one that those who are involved in making the final decision would have made, based on the same evidence.

93.   CCGs should not make decisions in the absence of recommendations on eligibility from the multidisciplinary team, except where exceptional circumstances require an urgent decision to be made. The final eligibility decision should be independent of budgetary constraints, and finance officers should not be part of a decision-making panel.

94.    As part of their responsibility to ensure consistent application of the National Framework, a CCG may review the pattern of recommendations made by multidisciplinary teams, in order to improve practice. However, this should be carried out separately from the approval of recommendations in individual cases.

95.    The time that elapses between the Checklist (or, where no Checklist is used, other notification of potential eligibility) being received by the CCG and the funding decision being made should, in most cases, not exceed 28 days. In acute services, it may be appropriate for the process to take significantly less than 28 days if an individual is otherwise ready for discharge. The CCG can help manage this process by ensuring that potential NHS continuing healthcare eligibility is actively considered as a central part of the discharge planning process, and also by considering whether it would be appropriate to provide interim or other NHS-funded services, as set out in paragraph 65 above.

96.    When there are valid and unavoidable reasons for the process taking longer, timescales should be  clearly communicated  to  the  person  and  (where  appropriate) their  carers and/or representatives.

Practice Guidance Notes – see part 2 of document. Eligibility and Panel Processes

Page 81:  If a CCG uses a panel as part of the decision-making process  what should  its function be and how should  it operate?

Page 82:  What should  the role of the CCG decision-making process  be?

Page 82:  What are the ‘exceptional circumstances’ under which a CCG or panel might not accept an MDT recommendation regarding eligibility for NHS continuing healthcare?

Page 83:  How should  decisions be communicated to the individual/representative?

Page 83:  If a person dies whilst  awaiting  a decision on NHS continuing healthcare eligibility, should  a decision still  be made in respect of eligibility for the period before their death?

Fast Track Tool

97.     Individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast tracking’ for immediate provision of NHS continuing healthcare. The Fast Track Tool should be completed by an appropriate clinician, who should give the reasons why the person meets the criterion required for the fast-tracking decision.

‘Appropriate  clinicians’  are  those  persons  who  are,  pursuant  to  the  2006  Act, responsible for an individual’s diagnosis, treatment or care and who are medical practitioners (such as consultants, registrars or GPs) or registered nurses. The clinician should have an appropriate level of knowledge or experience of the type of health needs, so that they are able to comment reasonably on whether the individual has a rapidly deteriorating condition that may be entering a terminal phase.

98.     Appropriate clinicians can include clinicians employed in voluntary and independent sector organisations that have a specialist role in end of life needs (for example, hospices), provided they are offering services pursuant to the 2006 Act. Others involved in supporting those with end of life needs, including those in wider voluntary and independent sector organisations, may identify the fact that the individual has needs for which use of the Fast Track Tool would be appropriate. They should contact the appropriate clinician who is responsible for the diagnosis, care or treatment of the individual and ask for consideration to be given to completion of the Fast Track Tool.

99.      The  completed  Fast  Track  Tool  should  be  supported  by  a  prognosis,  if  available.

However, strict time limits that base eligibility on some specified expected length of life remaining should not be imposed: it is the responsibility of the appropriate clinician to make a decision based on the needs of the person.

100.    Where a recommendation is made for an urgent package of care via the fast-track process, this should be accepted and actioned immediately by the CCG. It is not appropriate for individuals to experience delay in the delivery of their care package while concerns over the use of the Fast Track Tool are resolved. CCGs should carefully monitor use of the tool and raise any specific concerns with clinicians, teams and organisations. Such concerns should be treated as a separate matter from the task of arranging for service provision in the individual case.

101.    No one who has been identified through the fast-track process as eligible for NHS continuing healthcare should have this funding removed without the eligibility being reviewed in accordance with the review processes set out in paragraphs 139 – 144 . The review should include completion of a Decision Support Tool by a multidisciplinary team,including them making a recommendation on eligibility.

102.    The  purpose  of  the  Fast  Track  Tool  is  to  ensure  that  individuals  with  a  rapidly deteriorating condition that may be entering a terminal phase are supported in their preferred place of care as quickly as possible. This overall process including how personal information will be shared between different organisations and healthcare professionals involved in delivering care, should be carefully and sensitively explained to the individual and (where appropriate) their representative. Careful and sensitive decision-making is essential in order to avoid the undue distress that might result from a person moving in and out of NHS continuing healthcare eligibility within a very short period of time.

103.    Where an individual who  is receiving services from  use  of  the Fast Track Tool is expected to die in the very near future, the CCG should continue to take responsibility for the care package until the end of life.

104.    It is important to bear in mind that this is not the only way that someone can qualify for NHS continuing healthcare towards the end of their life. The Decision Support Tool asks practitioners to document deterioration (including observed and likely deterioration) in a person’s condition, so that they can take this into account in determining eligibility using the Decision Support Tool. However, this should not be used as a means of circumventing use of the Fast Track Tool when individuals satisfy the criteria for its use.

105.    Where deterioration can be reasonably anticipated to take place in the near future, this should also be taken into account, in order to avoid the need for unnecessary or repeat assessments.

106.    In end of life cases, CCGs and LAs should take particular account of paragraphs 169 –

171 regarding person-centred commissioning and procurement arrangements.

107.   NHS continuing healthcare assessments, care planning and commissioning for those with end of life needs should be carried out in an integrated manner, as part of the individual’s overall end of life care pathway, and should reflect the approaches set out in the national End of Life Care Strategy19, with full account being taken of patient preferences, including those set out in advance care plans.

Practice Guidance Notes – see part 2 of document.

The Fast Track Pathway Tool for NHS Continuing Healthcare

Page 83:  In a Fast Track case is it the PCT or the ‘appropriate clinician’ who decides that the individual has a primary  health need?

Page 84:  Who can complete  the Fast Track Pathway Tool?

Page 84:  What is the relationship between the Fast Track Pathway Tool and the Checklist/Decision Support  Tool?

19 http://www.endoflifecareforadults.nhs.uk/publications/eolc-strategy

Page 84:  Do individuals need to consent  to a Fast Track Pathway Tool being completed?

Page 85:  Is the use of the Fast Track Pathway Tool dependent  on specific timescales in relation  to end of life care?

Page 85:  What evidence is required  when completing the Fast Track Pathway Tool?

Page 86:   Can a CCG refuse to accept a completed Fast Track Pathway Tool?

Page 87:  What actions  can CCGs take if the Fast Track Pathway Tool is being used inappropriately?

Page 87:  How quickly could a hospital discharge take place following the completion of the Fast Track Tool?

Page 87:  What settings can a Fast Track Pathway Tool be used in?

Page 88:  Does the Fast Track tool need to be completed if the individual is already receiving a care package which could still  meet their needs?

Page 88:  Should individuals receiving care via the Fast Track Pathway Tool have their eligibility for NHS continuing healthcare  reviewed?

Page 89:  Can the national  tools  be changed?

Page 89:  Why is it important to complete  the equality  monitoring forms with the tools?

Commissioning, care planning and case management

108.   Where an individual is eligible for NHS continuing healthcare, the CCG is responsible for care planning, commissioning services and for case management. It is the responsibility of the CCG to plan strategically, specify outcomes and procure services, to manage demand and provider performance for all services that are required to meet the needs of all individuals who qualify for NHS continuing healthcare, and for the healthcare part of a joint care package. The services commissioned must include ongoing case management for all those entitled to NHS continuing healthcare, as well as for the NHS elements of joint packages, including  review and/or reassessment of the individual’s needs.

109.   As with all service contracts, commissioners are responsible for monitoring quality, access and patient experience within the context of provider performance. This is particularly important in this instance, as ultimate responsibility for arranging and monitoring the services required to meet the needs of those who qualify for NHS continuing healthcare rests with the CCG.  CCGs should ensure that there is clarity onthe  respective  responsibilities  of  commissioners  and  providers  with  regard  to  NHS continuing healthcare.

110.   CCGs should take a strategic as well as an individual approach to fulfilling their NHS continuing healthcare commissioning responsibilities. CCGs may wish to commission NHS-funded  care  from  a  wide  range  of  providers,  in  order  to  secure  high-quality services that offer value for money. As part of their joint commissioning responsibility, CCGs and LAs should work in partnership, and share information (where reasonable) to enable them to commission the most appropriate packages of care for their populations.

111.   Many individuals in receipt of NHS continuing healthcare and joint care packages will have long-term conditions. CCGs and LAs should take into account the policy set out in Supporting People with Long Term Conditions: Commissioning Personalised Care Planning20.The approaches set out may also be helpful in care planning for those in receipt of NHS continuing healthcare who do not have a long-term condition. The individual and personalised approaches described in Valuing People Now for people with learning disabilities are similarly relevant. Care planning for needs to be met under NHS continuing healthcare should not be carried out in isolation from care planning to meet other needs, and, wherever possible, a single, integrated and personalised care plan should be developed.

See also paragraphs 166 – 171 below regarding commissioning and personalisation.

Other existing commitments to NHS-funded care

112.   Apart from a CCG’s responsibilities for NHS continuing healthcare and their respective responsibilities under the Mental Health Act 1983, there may be other circumstances when the NHS is expected to take responsibility for a person’s long-term care. One example might be people with learning disabilities, where there may be an existing agreement to fund ongoing care for individuals following the closure of long-stay hospitals or campuses. These responsibilities arise independently of a CCG’s responsibility to provide NHS continuing healthcare, and there should be no assumption that these responsibilities equate to eligibility for NHS continuing healthcare or vice versa. Such agreements vary in terms of the commitments they make to fund needs that subsequently arise. Where additional needs do arise, it will be important for the CCG to first check whether there is clarity in such agreements on whether or not they cover responsibilities to meet such needs. If the additional needs fall outside the agreement, CCGs must consider their responsibilities to meet them, in terms both of the CCG’s general responsibilities and potential eligibility for NHS  continuing healthcare.

Joint packages of health and social care services

113.   If a person is not eligible for NHS continuing healthcare, they may receive a package of health and social care (rather than be fully funded by the NHS).

20 http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_093360.pdf

114.   There will be some individuals who, although they are not entitled to NHS continuing healthcare (because ‘taken as a whole’ their needs are not beyond the powers of a local authority to meet), but nonetheless have some specific needs identified through the Decision Support Tool that are not of a nature that an LA can solely meet or are beyond the powers of an LA to solely meet. CCGs should work in partnership with their LA colleagues to agree their respective responsibilities in a joint package of care, including which party will take the lead commissioning role.

115.   Apart from NHS-funded nursing care, additional health services may also be funded by the NHS, if these are identified and agreed as part of an assessment and care plan. The range of services that the NHS is expected to arrange and fund includes, but is not limited to:

•     primary healthcare;

•     assessment involving doctors and registered nurses;

•     rehabilitation/reablement and recovery (where this forms part of an overall package of NHS care, as distinct from intermediate care);

•     respite healthcare;

•     community health services;

•     specialist support for healthcare needs; and

•     palliative care and end of life healthcare.

116.   According to each LA’s eligibility threshold it will be responsible for providing such social care, including personal care, as can lawfully be provided following the Coughlan limits set out in paragraph 30 above (see also Annex B).

117.   With respect to other types of joint package, the extent to which each service should provide care is for NHS and LA partners to agree, bearing in mind the fact that LAs can provide some health services, subject to the legal limitations set out in paragraphs 30 above.

Practice Guidance Notes – see part 2 of document

Page 89:  What are joint packages of care?

Page 90:  Practice Example – Joint Package of Care

Page 91:  Does NHS-funded Nursing  Care cover the entire cost of a person’s nursing needs?

Page 92:  In a joint package does the DST define which elements  are the responsibility of the NHS and which are the responsibility of social services?

Page 92:  How does NHS-funded nursing care affect other funding for the care package such as from local authorities?

Page 92:  Is there a national  tool for assessing NHS-funded nursing care?

Links  to other Policies

Links  to mental health legislation

118.    CCGs and LAs should be familiar with the relevant sections of the Mental Health Act 1983 (as amended).

119.   Under section 117 of the Mental Health Act 1983 (‘section 117’), CCGs and LAs have a duty to provide after-care services to individuals who have been detained under certain provisions of the Mental Health Act 1983, until such time as they are satisfied that the person is no longer in need of such services. Section 117 is a freestanding duty to provide after-care services for needs arising from their mental disorder and CCGs and LAs should have in place local policies detailing their respective responsibilities, including funding arrangements.

120.    Responsibility for the provision of section 117 services lies jointly with LAs and the NHS.

Where a patient is eligible for services under section 117 these should be provided under section 117 and not under NHS continuing healthcare. It is important for CCGs to be clear in each case whether the individual’s needs (or in some cases which elements of  the  individual’s  needs)  are  being  funded  under  section  117,  NHS  continuing healthcare or any other powers, irrespective of which budget is used to fund those services.

121.   There are no powers to charge for services provided under section 117, regardless of whether they are provided by the NHS or LAs. Accordingly, the question of whether services should be ‘free’ NHS services (rather than potentially charged-for social services) does not arise. It is not, therefore, necessary to assess eligibility for NHS continuing healthcare if all the services in question are to be provided as after-care services under section 117.

122.   However, a person in receipt of after-care services under section 117 may also have ongoing care/support needs that are not related to their mental disorder and that may, therefore, not fall within the scope of section 117. Also a person may be receiving services under section 117 and then develop separate physical health needs (e.g. through  a  stroke)  which  may  then  trigger  the  need  to  consider  NHS  continuing healthcare only in relation to these separate needs, bearing in mind that NHS continuing healthcare should not be used to meet section 117 needs. Where an individual in receipt of section 117 services develops physical care needs resulting in a rapidly deteriorating condition which may be entering a terminal phase, consideration should be given to the use of the Fast Track Pathway Tool.

Practice Guidance Notes – see part 2 of document.

Page 93:  What is the relationship between NHS continuing healthcare  and section 117 after-care  under the Mental Health Act?

Page 93:  Is there any additional guidance  on the relationship between NHS continuing healthcare  and the Mental Health Act?

Page 93:  Do we make NHS-funded Nursing  Care payments   for section  117 patients  placed in nursing homes?

Deprivation of Liberty  Safeguards

123.   The Mental Capacity Act 2005 contains provisions that apply to a person who lacks capacity and who, in their best interests, needs to be deprived of their liberty in a care home or hospital, in order for them to receive the necessary care or treatment. The fact that a person who lacks capacity needs to be deprived of his or her liberty in these circumstances does not,  in itself, preclude or require consideration of whether that person is eligible for NHS continuing healthcare.

Transition from child to adult services

124.   The National Framework for NHS continuing healthcare and the supporting guidance and tools should be used to determine what ongoing care services people aged 18 years or over should receive from the NHS.

125.   Legislation and the respective responsibilities of the NHS, social care and other services are different in child and adult services. The term ‘continuing care’ also has different meanings in child and adult services. It is important that young people and their families are helped to understand this and its implications right from the start of transition planning.

126.  ‘Transition: moving on well’21  sets out good practice for health professionals and their partners  in  transition  planning  for  young  people  with  complex  health  needs  or disabilities.  ‘A  transition  guide  for  all  services’22   explains  how all  relevant  services should work together with a young person to identify how they can best support that

person to achieve their desired outcomes. All transition planning for young people should take full account of the approaches set out in these documents.

127.   CCGs should ensure that they are actively involved, with their partners, in the strategic development and oversight of their local transition planning processes, and that their representation includes those who understand and can speak on behalf of adult NHS continuing healthcare. CCGs should also ensure that adult NHS continuing healthcare is appropriately represented at all transition planning meetings to do with individual young people whose needs suggest that there may be potential eligibility. CCGs and LAs should have systems in place to ensure that appropriate referrals are made whenever either organisation is supporting a young person who, on reaching adulthood, may have a need for services from the other agency.

21 http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_083592

22 http://www.transitioninfonetwork.org.uk/PDF/Transition_Guide_For_All_Services.pdf

128.   It  is  desirable  and  best  practice  that  future  entitlement  to  adult  NHS  continuing healthcare should be clarified as early as possible in the transition planning process, especially if the young person’s needs are likely to remain at a similar level until adulthood.

129.   Children’s services should identify those young people for whom it is likely that adult NHS continuing healthcare will be necessary, and should notify whichever CCG will have responsibility for them as adults. This should occur when a young person reaches the age of 14.

130.    This should be followed up by a formal referral for screening at age 16 to the adult NHS continuing healthcare team at the relevant CCG.

131.   At the age of 17, eligibility for adult NHS continuing healthcare should be determined in principle by the relevant CCG, so that, wherever applicable, effective packages of care can be commissioned in time for the individual’s 18th birthday (or later, if it is agreed that it is more appropriate for responsibility to be transferred then). In order to do this staff from adult services (who are familiar with the Adult Framework) will need to be involved in both the assessment and care planning to ensure smooth transition to adult services. If needs are likely to change, it may be appropriate to make a provisional decision, and then to recheck it by repeating the process as adulthood approaches.

132.   Entitlement to adult NHS continuing healthcare should initially be established using the decision-making process set out in this adult Framework, including the Checklist and the Decision Support Tool. The decision on eligibility should be made using the relevant CCG’s usual adult NHS continuing healthcare decision-making processes. The health plans and other assessments and plans developed as part of the transition process will provide key evidence to be considered in the decision-making process. Any entitlement that is identified by means of these processes before a young person reaches adulthood will come into effect on their 18th birthday, subject to any change in their needs.

133.   If a young person who receives children’s continuing care has been determined by the relevant CCG not to be eligible for a package of adult NHS continuing healthcare in respect of when they reach the age of 18, they should be advised of their non-eligibility and of their right to request an independent review, on the same basis as NHS continuing healthcare eligibility decisions regarding adults. The CCG should continue to participate in the transition process, in order to ensure an appropriate transfer of responsibilities, including consideration of whether they should be commissioning, funding or providing services towards a joint package of care.

134.   Where a young person receives support via a placement outside the CCG’s area, it is important that, at an early stage in the transition planning process, there is clear agreement between the CCGs involved as to who the responsible commissioner presently is, and whether this could potentially change. This should be determined by applying the principles set out in ‘responsible commissioner’ guidance (currently Who Pays? Establishing the Responsible Commissioner23) All parties with current or future

responsibilities should be actively represented in the transition planning process. A

dispute or lack of clarity over commissioner responsibilities must not result in a lack of

23 http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_078466

appropriate input into the transition process.

135.   Even if a young person is not entitled to adult NHS continuing healthcare, they may have certain health needs that are the responsibility of the NHS. In such circumstances, CCGs should continue to play a full role in transition planning for the young person, and should ensure that appropriate arrangements are in place for services that meet these needs to be commissioned or provided. The focus should always be on the individual’s desired outcomes and the support needed to achieve these.

136.   A key aim is to ensure that a consistent package of support is provided during the years before and after the transition to adulthood. The nature of the package may change because the young person’s needs or circumstances change. However, it should not change simply because of the move from children’s to adult services or because of a change  in  the  organisation  with  commissioning  or  funding  responsibilities.  Where change is necessary, it should be carried out in a planned manner, in full consultation with the young person. No services or funding should be unilaterally withdrawn unless a full joint health and social care assessment has been carried out and alternative funding arrangements have been put in place.

137.   The legal responsibilities for child and adult services overlap in certain circumstances. In developing individual transition plans, partners should be clear where such overlaps occur, and the plans should clearly set out who will take responsibility and why. Some local health services for children and young people are only offered up to an age short of adulthood (i.e. 16). CCGs and other partners responsible for children and young people’s services should ensure that appropriate services are commissioned to meet needs through to adulthood. A gap in service provision based on age does not mean that  adult  NHS  continuing  healthcare  services  acquire  early  responsibility.  Where service gaps are identified, CCGs should consider how to address these as part of their strategic commissioning responsibilities.

138.   It should be noted that regulations24 state that, in certain circumstances, when a young person   in   receipt   of   children’s   continuing   care   reaches   adulthood,   the   care arrangements should be treated as having been made under the adult continuing care provisions. Guidance on the regulations sets out that young people approaching their 18th birthday will require a reassessment of their health and social care needs as part of their transition planning, and that, wherever possible, these young people should continue to receive their healthcare on an unchanged basis until they have been reassessed. It is therefore in the interests of the child/young person and of the CCG and LA to monitor and actively participate in the reviews of those recipients of continuing care who are approaching adulthood.

Review

139.   If the NHS is commissioning, funding or providing any part of the care, a case review should be undertaken no later than three months after the initial eligibility decision, in order to reassess care needs and eligibility for NHS continuing healthcare, and to

24   National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012ensure that those needs are being met. Reviews should then take place annually, as a minimum. It is expected that any previously completed DST will normally be available at the review and each of the domains and previously assessed need levels considered by the reviewer. This should be done in consultation with the person being reviewed and any  other  relevant  people  who  know  the  person  who  are  present  at  the  review. However, the focus of the review should not just be on whether the individual remains eligible for NHS continuing healthcare but on whether needs are being met and whether the package of care remains appropriate.

140.   If the LA is also responsible for any part of the care, both the CCG and the LA will have a requirement to review needs and the service provided. In such circumstances, it would be beneficial for them to conduct a joint review where practicable. If all the services are the responsibility of the NHS, it may be beneficial for the review to be held jointly by the NHS and the LA where there is an indication of a need for a social care assessment as part of the review process. Some cases will require a more frequent case review, in line with clinical judgement and changing needs.

141.   When reviewing the need for NHS-funded nursing care, potential eligibility for  NHS continuing healthcare must always be considered (using the Checklist), and full consideration should be carried out, where necessary.

142.   The outcome of the case review will determine whether the individual’s needs have changed, and that will then determine whether the package of care may have to be revised or the funding responsibilities altered.

143.  Neither the NHS nor an LA should unilaterally withdraw from an existing funding arrangement without a joint reassessment of the individual, and without first consulting one  another  and  the  individual  about  the  proposed  change  of  arrangement.  It  is essential that alternative funding arrangements are agreed and put into effect before any withdrawal of existing funding, in order to ensure continuity of care. Any proposed change should be put in writing to the individual by the organisation that is proposing to make such a change. If agreement between the LA and NHS cannot be reached on the proposed change, the local disputes procedure should be invoked, and current funding and care management responsibilities should remain in place until the dispute has been resolved. There is a separate disputes procedure for when the individual disagrees with the decision. Both procedures are set out in paragraphs 145 – 165 below.

144.   The risks and benefits to the individual of a change of location or support (including funding)  should  be  considered  carefully  before  any  move  or  change  is  confirmed. Neither the CCG nor the LA should unilaterally withdraw from funding of an existing package  until  there  has  been  appropriate  reassessment  and  agreement  on  future funding responsibilities and any alternative funding arrangements have been put into effect. Further details on responsibilities during changes (including approaches to disputes) are set out in Annex F.

Practice Guidance Note – see part 2 of document.

Page 94:  Is it necessary  to complete  a full Checklist and Decision  Support  Tool (DST) when carrying out a routine  / annual review of NHS-funded Nursing  Care?

Dispute resolution

Challenges  to individual decisions

145.   The formal responsibility for informing individuals of the decision about eligibility for NHS continuing healthcare and of their right to request a review lies with that CCG with which the individual is a patient for the purposes of NHS continuing healthcare, in line with current DH ‘responsible commissioner’ guidance (currently Who Pays? Establishing the Responsible Commissioner).

146.   Whether or not it is considered that the person has a primary health need, the CCG should give clear reasons for its decision. These should set out the basis on which the decision was made and explain the arrangements and timescales for dealing with a review of the eligibility decision in the event that the individual or someone acting on their behalf disagrees with it.

147.   Where a full assessment has been undertaken of potential eligibility using the Decision Support Tool (or by use of the Fast Track Pathway Tool), and a decision has been reached, if the individual is challenging that decision, this should be addressed through the local resolution procedure (unless the Board decides that requiring the person to do so would cause undue delay)25. Where it has not been possible to resolve the matter through the local procedure the individual may apply to the Board for an independent review of the decision, if they are dissatisfied with:

a)  the procedure followed by the Board or a CCG in reaching its decision as to the person’s eligibility for NHS continuing healthcare; or

b)   the decision regarding eligibility for NHS continuing healthcare

Where  the  Board,  rather  than  a  CCG, has  taken an  eligibility  decision  which  is subsequently disputed by the individual, the Board must ensure that, in organising a review of that decision, it makes appropriate arrangements as regards the manner in which it organises this review so as to avoid any conflict of interest.

148.  If an individual has been screened out from full consideration following use of the Checklist, they may ask the CCG to reconsider its decision and agree to a full assessment of eligibility (i.e. arrange for the Decision Support Tool to be completed and a decision made on eligibility). The CCG should give this request due consideration,

25   National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 taking account of all the information available, including additional information from the individual  or  carer.  A  clear  and  written  response  should  be  given  including  the individual’s (and, where appropriate, their representative’s) rights under the NHS complaints procedure if they remain dissatisfied with the position.

149.   CCGs and the Board should deal promptly with any request to review decisions about eligibility for either NHS continuing healthcare or NHS-funded nursing care.

150.    There are two stages involved in dealing with any requests for a review:

a)   a local review process at CCG level; and

b)       a request to the Board, which may then refer the matter to an independent review panel.

151.   Each CCG should agree a local review process. These review processes should include timescales  and  should  be  made  publicly  available,  and  a  copy  should  be  sent  to anybody who requests a review of a decision

152.   Once local procedures have been exhausted, the case should be referred to the Board’s independent review panel (IRP) (details in Annex E), which will consider the case and make a recommendation to the CCG. If using local processes would cause undue delay, the Board has the discretion to agree that the matter should proceed direct to an IRP, without completion of the local process.

153.    The key principles for resolving disputes regarding NHS continuing healthcare eligibility

(including both local procedures and independent review panels) are:

•     gathering and scrutiny of all available and appropriate evidence, whether written or oral including that from the GP, hospital (nursing, medical, mental health, therapies, etc.), community nursing services, care home provider, local authority records, assessments, Checklists, Decision Support Tools, records of deliberations of multidisciplinary teams, panels, etc., as well as any information submitted by the individual concerned;

•   compilation of a robust and accurate identification of the care needs;

•   audit of attempts to gather any records said not to be available;

•     involvement of the individual or their representative as far as possible, including the opportunity for them to contribute and to comment on information at all stages;

•   a full record of deliberations of the review panel, made available to all parties;

•     clear and evidenced written conclusions on the process followed by the NHS body and also on the individual’s eligibility for NHS continuing healthcare, together with appropriate recommendations on actions to be taken. This should include the appropriate rationale related to this guidance.

154.   All  parties  involved  should  be  able  to  view  and  comment  on  all  evidence  to  be considered under the relevant disputes procedure. Where written records or other evidence  are  requested,  the  CCG  making  the  request  should  ensure  that  those providing the evidence are aware that it will be made available to those involved in the IRP. Where, in exceptional circumstances, those providing written records place any restrictions on their availability to all parties, the position should be discussed with the

chair of the relevant disputes resolution body. The chair should consider the most appropriate way forward to ensure that all parties can play a full and informed role in the process.

155.   IRPs have a scrutiny and reviewing role. It is therefore not necessary for any party to be legally represented at IRP hearings, although individuals may choose to be represented by family, advocates, advice services or others in a similar role if they wish.

156.   The role of the IRP is advisory, but its recommendations should be accepted by the Board (and subsequently by the CCG) in all but exceptional circumstances (see Annex E).

157.   If the original decision is upheld and there is still a challenge, the  individual has the right to contact the Parliamentary and Health Service Ombudsman to request a review.

158.   The  individual’s  rights  under  the  existing  NHS  and  social  services  complaints procedures remain unaltered by the above.

Practice Guidance Notes – see part 2 of document.

Page 94:  There are two different kinds  of dispute  that may arise in relation  to NHS continuing healthcare

Page 95:  What issues should  be considered at the Checklist stage of the decision-making process  to avoid or resolve disputes?

Page 95:  What issues  should  be considered at the DST stage of the decision- making process  to avoid or resolve  disputes?

Page 96:  What factors  need to be considered in local disputes processes?

Page 96:  What if the dispute  crosses  CCG/LA borders?

Page 96:  What if the individual wishes to challenge  the final eligibility decision made by the CCG?

Disputes  regarding the responsible body

159.   CCGs and LAs in each local area should agree a local disputes resolution process to resolve  cases  where  there  is  a  dispute  between  them  about  eligibility  for  NHS continuing healthcare, about the apportionment of funding in joint funded care/support packages, or about the operation of refunds guidance (see Annex F). Disputes should not delay the provision of the care package, and the protocol should make clear how funding will be provided pending resolution of the dispute. Where disputes relate to LAs and CCGs in different geographical areas, the disputes resolution process of the responsible CCG should normally be used in order to ensure resolution in a robust and timely manner. This should include agreement on how funding will be provided during the dispute, and arrangements for reimbursement to the agencies involved once the dispute is resolved.

160.   DH ‘responsible commissioner’ guidance sets out expectations for when there is a dispute between CCGs as to responsibility. The underlying principle is that there should be no gaps in responsibility – no treatment should be refused or delayed due to uncertainty or ambiguity as to which CCG is responsible for funding an individual’s healthcare provision. CCGs should agree interim responsibilities for who funds the package until the dispute is resolved. Where the CCGs are unable to resolve their dispute the matter should be referred to the Board.

Practice Guidance Note – see part 2 of document.

Page 97:  What can key agencies do to improve  partnership working in relation  to NHS continuing healthcare?

Governance

161.    Both  CCGs and the Board  have  roles  in  establishing  and  maintaining  governance arrangements for NHS continuing healthcare eligibility processes and commissioning.

162.    CCGs are responsible for:

a)      ensuring consistency in the application of the national policy on eligibility for NHS continuing healthcare;

b)      promoting awareness of NHS continuing healthcare;

c)      implementing and maintaining good practice;

d)      ensuring that quality standards are met and sustained;

e)      providing training and development opportunities for practitioners;

f)       identifying and acting on issues arising in the provision of NHS continuing healthcare;

g)      nominating and making available suitably skilled professionals to be members of Independent Review Panels (in accordance with Standing Rules); and

h)      informing  commissioning  arrangements,  both  on  a  strategic  and  an  individual basis.

163.    CCGs may therefore find it helpful to have in place a system to record the assessments undertaken and their outcomes, and the costs of NHS continuing healthcare packages.

It is important that any such system should clearly identify those receiving NHS continuing healthcare as a distinct group from those being supported via joint packages or any other funding routes. This will help CCGs commission care more efficiently and ensure that the data fed back to the Department and the Board is accurate and consistent.

164.  The Board’s functions include providing strategic leadership and organisational and workforce development, and ensuring that local systems operate effectively and deliver improved performance. The Board holds CCGs accountable and therefore engages with them to ensure that they discharge their functions. In carrying out this role, the Board should be aware of the range of responsibilities that CCGs hold in relation to NHS continuing healthcare, as detailed in the paragraphs above.

165.   The Board will also be responsible for appointing persons to act as chairs of IRPs and establishing a list of IRP panel members drawn from LAs and CCGs, in accordance with Standing Rules (National Health Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).

Practice Guidance Notes – see part 2 of document.

Page 98:  What is the role of the CCG in relation  to NHS continuing healthcare?

Page 100:  What is the role of the LA in NHS continuing healthcare?

Page 101:  What information is available  to give to members of the public  about NHS continuing healthcare?

Commissioning, Care Planning  and Provision

Provision

166.   Whether or not a person is eligible for NHS continuing healthcare, if they have ongoing care needs, the care planning process helps in the decision on how best to meet those needs.

167.   Where a person qualifies for NHS continuing healthcare, the package to be provided is that which the CCG assesses is appropriate to meet all of the individual’s assessed health and associated social care needs. Although the CCG is not bound by the views of the LA on what services the individual requires, the LA’s assessment under section

47 of the National Health Service and Community Care Act 1990, or its contribution to a joint assessment, will be important in identifying the individual’s needs and, in some cases, the options available for meeting them.

168.   The LA is, however, not prevented from providing services, subject to the limits outlined in paragraphs 30. Indeed, in some cases, individual arrangements may have to be reached between LAs and CCGs with respect to the provision of services. This may beparticularly relevant if the person is to be cared for in a community setting (see PracticeGuidance notes below).

169.  CCGs should commission services using models that maximise personalisation and individual control and that reflect the individual’s preferences, as far as possible. It is particularly important that this approach should be taken when an individual who was previously in receipt of an LA direct payment begins to receive NHS continuing healthcare; otherwise they may experience a loss of the control they had previously exercised over their care.

170. CCGs and LAs should operate person-centred commissioning and procurement arrangements, so that unnecessary changes of provider or of care package do not take place purely because the responsible commissioner has changed from a CCG to an LA (or vice versa).

171.    The  above  approaches  apply  both  to  NHS  continuing  healthcare  and  to  the  NHS elements of a joint package.

Equipment

172.   Where individuals in receipt of NHS continuing healthcare require equipment to meet their care needs, there are several routes by which this may be provided:

a)  If the individual is, or will be, supported in a care-home setting, the care home may be required to provide certain equipment as part of regulatory standards or as part of its contract with the CCG. Further details of the regulatory standards can be found on the Care Quality Commission’s website at  www.cqc.org.uk.

b)  In accordance with the principles set out in paragraphs 113 – 117, individuals who are entitled to NHS continuing healthcare have an entitlement – on the same basis as other patients – to joint equipment services. CCGs should ensure that the availability to those in receipt of NHS continuing healthcare is taken into account in the planning, commissioning and funding arrangements for these services.

c)    Some individuals will require bespoke equipment (or other non-bespoke equipment that is not available through routes (a) and (b) above) to meet specific assessed needs identified in their NHS continuing healthcare care plan. CCGs should make appropriate arrangements to meet these needs.  CCGs should ensure that there is clarity about which of the above arrangements is applicable in each individual case.

Access to Other NHS-funded Services

173.    Those in receipt of NHS continuing healthcare continue to be entitled to access to the full range of primary, community, secondary and other health services.

174.    The CCG responsible for the individual should be determined in accordance with the principles set out in responsible commissioner guidance.

175.    CCGs should ensure that their contracting arrangements with care homes that provide nursing care give clarity on the responsibilities of nurses within the care home and of community nursing services, respectively.  No gap in service provision should arise between the two sectors.

Practice Guidance Notes – see part 2 of document.

Page 101:  How should  care planning be approached for a person entitled  to NHS continuing healthcare?

Page 102:  Who is responsible for equipment and adaptations if someone is eligible  for NHS continuing healthcare  and is in their own home?

Page 104:  Case Management

Page 105:  How should  commissioning be approached for a person entitled  to NHS continuing healthcare?

Page 106:  Can a CCG use an external agency to carry out the commissioning of NHS continuing healthcare  services  or for negotiation with providers?

Page 107:  What limits  (if any) can be put on individual choice where, if followed, this would result in the CCG paying for a very expensive  care arrangement? Under what circumstances can the CCG decline to provide  care in the preferred setting  of the individual?

Page 108: Gunter Case

Page 108:  What are the responsibilities of CCGs and LAs when a person is Supported in their own home?

Page 109: If a person is in receipt of NHS Continuing Healthcare  are they entitled to any local authority funding for social care?

Page 109: If someone receiving NHS Continuing Healthcare  also receives some services  from the local authority, will they be means tested and charged for these services?

Page 109: If someone has NHS Continuing Healthcare  at home, does the PCT have for pay rent/mortgage, food and utility bills?

Page 110:  What is the CCG role in relation  to carers when someone is in receipt of NHS continuing healthcare?

Page 110:  Can a personal  health budget be used for people eligible  for NHS continuing healthcare?

Page 110:  What information and advice is available regarding the development of personalised commissioning and personal  health budgets?

Page 111:  What practical examples are there of how someone with a primary health need can have their needs met through a ‘notional health budget’?

Page 112:  What practical options are there for meeting the needs of someone eligible  for NHS continuing healthcare  by means of a ‘real personal  budget held by a third party’?

Practice  Example – Real Personal Budget Held by Third Party

Page 113:  Can the LA be an intermediary for a real personal  health budget where the individual has been assessed as having a primary  health need? If so, how?

Page 113:  Can a local authority act as a 3rd party to administer direct payments to someone who has been deemed eligible  for NHS Continuing Healthcare?

Page 114:  Can an individual pay for additional services  themselves in addition to their NHS continuing healthcare  package?

Page 116: Example

Page 117: Example

Page 117:  Can an individual ‘top-up’ their care package to pay for higher-cost services  or accommodation?

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