Practice Guidance PG 68 – 73 Disputes

PG 68 There  are  two  different  kinds   of  dispute   that  may  arise  in  relation   to  NHS continuing healthcare:

68.1  a) Disputes between a CCG and an LA regarding eligibility (which could also have additional complications arising from the two organisations being from different geographical areas).

b) Challenges (including requests for reviews) by the individual or their representative in relation to the process or decisions made.

68.2   On some occasions CCGs may receive requests for an independent review or other challenge from a close relative, friend or other representative who does not have LPA or deputy status. Where the individual has capacity, the CCG should ask them whether this  request  is  in  accordance  with  their  instructions,  and  where  they  do  not  have capacity, a best interests process should be used to consider whether to proceed with the request for an independent review or other challenge.

PG 69 What issues  should  be considered at the Checklist stage of the decision-making process  to avoid or resolve  disputes?

69.1   The advice set out in the user notes for the Checklist addresses many of the key issues that may arise in its completion.

69.2   The Checklist has been intentionally designed to give a low threshold for passage through to the full eligibility consideration process. Therefore, provided that the Checklist has          been   completed   by   an   appropriate   health   or   social   care   professional, recommendations within Checklists should usually be accepted and actioned by CCGs.

69.3   Where an individual or their representative wishes to challenge a Checklist outcome, they should contact the relevant CCG, using the contact information supplied with the written decision. The CCG should give this request prompt and due consideration, taking account of all the information available, including any additional information from the individual or carer. The response should be given in writing as soon as possible. If the individual remains dissatisfied, they can ask for the matter to be considered under the NHS complaints procedure. Details of how to do this should be included with the written decision. At any stage, the CCG may decide to arrange for another Checklist to be completed or to undertake the full DST process, notwithstanding the outcome of the original Checklist.

PG 70 What  issues   should   be  considered  at  the  DST  stage  of  the  decision-making process  to avoid or resolve  disputes?

70.1   The advice set out in the user notes for the DST addresses many of the key issues that may arise in its completion, such as the approaches to take when MDT members cannot agree on individual domain levels.

70.2   By practitioners working in partnership, and by following this guidance, it should be possible to resolve many disagreements regarding eligibility recommendations through the normal MDT process without the need to invoke formal dispute resolution procedures. However, the Standing Rules require each CCG and LA to have a jointly agreed disputes resolution process (in relation to both eligibility for NHS continuing healthcare and joint funding arrangements).

70.3  Where agreement cannot be reached through the normal eligibility decision-making processes, the formal dispute resolution process should be followed.

70.4   Where an individual and/or their representative expresses concern about any aspect of the MDT or DST process, the CCG coordinator should discuss this matter with them and seek to resolve their concerns. Where the concerns remain unresolved, these should be noted within the DST so that they can be brought to the attention of the CCG making the final decision.

PG 71 What factors  need to be considered in local disputes processes?

71.1   It is important that local disputes processes include levels of escalation of the disputes, for example, by the matter initially being considered further by team managers from the CCG and LA and then increasing to senior management involvement as necessary. Disputes processes should also include a level by which the matter has to be finally resolved, even if it has not been resolved at lower levels. This could, for example, be by the matter being referred jointly to another to another CCG and LA, and agreeing to accept their recommendation. CCGs and LAs should carefully monitor the use of their disputes process. Disputes should be reviewed after resolution for learning points and these should be fed back to those involved in the decision-making process in the case and also built into the training of MDT members as appropriate.

PG 72 What if the dispute  crosses  CCG/LA borders?

72.1   Where a dispute occurs between a CCG and LA in different areas (and therefore without  a  shared  disputes  resolution  agreement)  it  is  recommended  that  the  local process applying to the CCG involved in the case is used. Where a dispute involves two CCGs, it is recommended to use the disputes process for the CCG area where the individual is residing at the outset of the relevant decision-making process. Thus if CCG A had made a placement in CCG B’s area, it is CCG A’s dispute process that should be used, even if the person is now physically residing in CCG B’s area. Both CCGs should be able to play a full and equal role in the dispute resolution. Consideration could be given to identifying an independent person (who is not connected with either CCG) to oversee the resolution of the dispute.  CCGs and LAs should consider agreeing and publishing local processes and timescales for responding to complaints and concerns relating to NHS continuing healthcare on issues that fall outside of the IRP process.

PG 73 What if the individual wishes  to challenge  the final eligibility decision made by the  CCG?

73.1   If the individual or their representative wishes to dispute the decision made and/or the process used to reach it, they can request an independent review through the Board as set out in this Framework. However, CCGs should always work with the individual and their representatives to seek to resolve the matter informally without the need for an IRP.  Even  when  an  IRP  has  been  requested,  CCGs  should  continue  to  seek  to informally resolve the matter, up to the date of the IRP hearing itself. When the Board receives an IRP request they should contact the relevant CCG to establish what efforts have been made to achieve local resolution and the outcome. The Board can consider asking CCGs to attempt further local resolution prior to the IRP hearing. CCGs and the Board may receive requests that are outside the remit of the IRP process (i.e. that are not about the application of the eligibility criteria or the process followed to reach the decision). The eligibility criteria are set nationally by Standing Rules and so are not a matter for local review or complaints processes. If CCGs and the Board receive review requests about other non-IRP matters (for example, the nature of the care package to be provided) they should advise the individual to pursue the matter through the NHS complaints process.  CCGs should consider publishing local processes and timescales for responding to complaints and concerns relating to NHS continuing healthcare on issues that fall outside of the IRP process.

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