What does the National Framework say? Key points

The National Framework can be downloaded as  a pdf from the GOV.UK website.

Here is some selected wording from Part 1, as accessed March 16th 2014. See the unedited version of this page .

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.

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. …..

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.

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).
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:  PG1 Is there an authoritative definition of ‘beyond  the responsibility of the Local authority’?

Page 50:  PG2 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.

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.

4

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

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?

Other eligibility issues55.    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.

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.

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.

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.

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.

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.

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.

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.

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.
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 201 2ensure 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.

  
Dispute resolutionChallenges  to individual decisions145.   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.

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 thechair 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.

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.

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