This is a good question. Can the CCG alter the wording of a recommendation for continuing healthcare funding if they do not like what it says, and they do not wish to follow the recommendation made by the Multi-Disciplinary Team? See both answer one and answer two, and my two supplementary questions.
- A1: No, they are not allowed to do this. The Practice Guidance notes state that “CCG decision-making processes should not have the function of: … completing/altering DSTs”. The National Framework stipulates that only in exceptional circumstances, and for clearly articulated reasons, should the multidisciplinary team’s recommendation not be followed.
Q1: So it is a legal requirement that they must provide the whole of the original DST, unaltered, to the family, and, if applicable, a clear expanation for why the recommendation was not followed? Yes
- A2: Yes they can. There seems to be nothing in place (apart from morality) to prevent any CCG decision-maker falsifying documentation before sending it on to the family. For example, a DST that included a recommendation for funding might have that wording replaced with a statement that no recommendation for funding had been made.
Q2: Who would know? If the family have not got access to the original document, but are informed (falsely) that there was no recommendation was made, they would find it hard to argue their case.
What does the Law say?
The law does not allow anyone to defraud an individual of what is rightfully theirs. Forgery – in for instance, altering a recommendation on eligibility, and passing that off as the original document so that funding (to which a person is properly entitled) is refused – is a criminal offence.
Tort of Deceipt: The Tort of Deceipt (also known as “fraud”) is a civil wrong, for which the relevant person or authority can be sued. One ruling from 2013 clarifies the nature of this. Deceit occurs when a person makes a factual misrepresentation, knowing that it is false (or having no belief in its truth and being reckless as to whether it is true) and intending it to be relied on by the recipient, and the recipient acts to his or her detriment in reliance on it.
The judge (2013) ruled that: “Tort of deceit contains four ingredients: (1) Defendant makes a false representation to the Claimant; (2) Defendant knows that the representation is false or is reckless as to whether it is true or false; (3) Defendant intends that the Claimant should act in reliance on it; and (4) claimant does act in reliance on the representation and, in consequence, suffers loss.”
What does the Framework say?
: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. END
The Practice Guidance Notes from the National Framework clarify:
40.2 CCG decision-making processes should not have the function of:
• financial gatekeeping
• completing/altering DSTs
• overturning recommendations (although they can refer cases back to an MDT for further work in certain circumstances – see below).
PG 41 What are the ‘exceptional circumstances’ under which a CCG or panel might not accept an MDT recommendation regarding eligibility for NHS continuing healthcare?
41.1 Eligibility recommendations must be led by the practitioners who have met and assessed the individual. Exceptional circumstances where these recommendations may not be accepted by a CCG include:
• where the DST is not completed fully (including where there is no recommendation)
• where there are significant gaps in evidence to support the recommendation
• where there is an obvious mismatch between evidence provided and the recommendation made
• where the recommendation would result in either authority acting unlawfully.
41.2 In such cases the matter should be sent back to the MDT with a full explanation of the relevant matters to be addressed. Where there is an urgent need for care/support to be provided, the CCG (and LA where relevant) should make appropriate interim arrangements without delay. Ultimately responsibility for the eligibility decision rests with the CCG.
The following extract from the testimony given to a Parliamentary Select Committee seems to indicate that on occasions the recommendations of the MDT are being altered before being provided to the families. In our opinion, this misrepresentation of an original document amounts to fraud, because the outcome of such actions is to unfairly and illegally deprive a family of funding that is properly theirs. (Such deliberate fabrication of evidence may be considered to be misconduct in public office, an offence which carries a maximum sentence of life inprisonment.)
The testimony to the Select Committee says, in relation to a case in which the original DST had been altered before being provided to the family, that:
54. The National Framework requires that the patient’s needs must be assessed by a Multi Disciplinary Team (MDT). MDTs fulfil that function by completing a document known as a Decision Support Tool (DST)
55. I eventually obtained a copy of the original DST that had been completed by the MDT in respect of my father. It differed in several key respects from the version that had been sent to me by the PCT. In particular the conclusion reached by the MDT was:
“… Mr *** needs demonstrate a primary healthcare need and a nursing home placement should be fully funded under continuing health care.”
56. From the DST, the National Framework, and Practice Guidance it is very clear that:
· The MDT recommended that my father should receive CHC funding
· a PCT must not reject an MDT’s recommendation
· a PCT must not rewrite an MDT’s report
57. By rewriting the MDT’s report and rejecting its recommendation, the PCT disobeyed the explicit instructions that had been issued by the Department of Health in the National Framework and Practice Guidance.
58. The PCT admitted in several letters that it had overturned the recommendation of the MDT, and that it was not unusual for it to do so. For instance:
“While NHS *** would desire to be able to ratify all recommendations made by Multi Disciplinary Teams (MDT) in relation to eligibility for NHS Funded Continuing Healthcare. The complexity of the process and the vast numbers of practitioners engaged in the process mean that this is not always possible.”