The National Framework sets out how a family or an individual might challenge a decision on eligibility for funding or complain about the process. Paragraphs 145 – 160 are relevant (reproduced below). See also Annex F – Disputes and challenges – and the National Framework’s Practice Guidance on Disputes.
Complaints about the NHS, and the handling of those complaints, were described by the Parliamentary and Health Service Ombudsman as a “toxic cocktail”, a combination of a reluctance on the part of citizens “to express their concerns or complaints”, and a defensiveness on the part of services “to hear and address concerns”.
Read more from the Parliamentary (Commons Select Committee) Public Adminstration Committee’s 12th Report, “More Complaints Please“(pdf), published 26th March 2014. Extracts from the report, ie those concerning the NHS, can be found here.
What does the All Party Parliamentary Group on Parkinson’s Report “Failing to Care” (2013) say about CHC funding and the NHS? Download: Failing to care_appg summary 2013 and Failing to care_appg ful lreport 2013 (pdf)
National Framework: 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. (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) 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,
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 on disputes.
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?