The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012

The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 set out the legal basis for the administration of continuing healthcare funding. The relevant sections can be accessed below.

PART 6 Standing rules: NHS Continuing Healthcare and NHS funded nursing care

Here are some extracts from the legislation:

Citation and commencement

1.  (1)  These Regulations may be cited as National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 and, subject to paragraphs (2) to (4), come into force on 1st April 2013.

Duty of relevant bodies: assessment and provision of NHS Continuing Healthcare

21.  (1)  In exercising its functions under or by virtue of sections 3, 3A or 3B of the 2006 Act, insofar as they relate to NHS Continuing Healthcare, a relevant body must comply with paragraphs (2) to (11).

(2) A relevant body must take reasonable steps to ensure that an assessment of eligibility for NHS Continuing Healthcare is carried out in respect of a person for which that body has responsibility in all cases where it appears to that body that—

(a)there may be a need for such care; or

(b)an individual who is receiving NHS Continuing Healthcare may no longer be eligible for such care.

(3) If an assessment for NHS Continuing Healthcare is required under paragraph (2)(a), the relevant body must ensure that it is carried out before any assessment pursuant to regulation 28(1) (persons who enter relevant premises or who develop a need for nursing care) is carried out.

(4) If a relevant body wishes to use an initial screening process to decide whether to undertake an assessment of a person’s eligibility for NHS Continuing Healthcare it must—

(a)complete and use the NHS Continuing Healthcare Checklist issued by the Secretary of State and dated 28th November 2012(11) to inform that decision;

(b)inform that person (or someone lawfully acting on that person’s behalf) in writing of the decision as to whether to carry out an assessment of that person’s eligibility for NHS Continuing Healthcare; and

(c)make a record of that decision.

(5) When carrying out an assessment of eligibility for NHS Continuing Healthcare, a relevant body must ensure that—

(a)a multi-disciplinary team—

(i)undertakes an assessment of needs, or has undertaken an assessment of needs, that is an accurate reflection of that person’s needs at the date of the assessment of eligibility for NHS Continuing Healthcare, and

(ii)uses that assessment of needs to complete the Decision Support Tool for NHS Continuing Healthcare issued by the Secretary of State and dated 28th November 2012(12); and

(b)the relevant body makes a decision as to whether that person has a primary health need in accordance with paragraph (7), using the completed Decision Support Tool to inform that decision.

(6) If a relevant body decides that a person has a primary health need in accordance with paragraph (5)(b), it must also decide that that person is eligible for NHS Continuing Healthcare.

(7) In deciding whether a person has a primary health need in accordance with paragraph (5)(b), a relevant body must consider whether the nursing or other health services required by that person are—

(a)where that person is, or is to be, accommodated in relevant premises, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person’s means, under a duty to provide; or

(b)of a nature beyond which a social services authority whose primary responsibility is to provide social services could be expected to provide,

and, if it decides that the nursing or other health services required do, when considered in their totality, fall within sub-paragraph (a) or (b), it must decide that that person has a primary health need.

(8) Paragraphs (2) to (6) do not apply where an appropriate clinician decides that—

(a)an individual has a primary health need arising from a rapidly deteriorating condition; and

(b)the condition may be entering a terminal phase,

and that clinician has completed a Fast Track Pathway Tool stating reasons for the decision.

(9) A relevant body must, upon receipt of a Fast Track Pathway tool completed in accordance with paragraph (8), decide that a person is eligible for NHS Continuing Healthcare.

(10) Where an assessment of eligibility for NHS Continuing Healthcare has been carried out, or a relevant body has received a Fast Track Pathway Tool completed in accordance with paragraph (8), the relevant body must—

(a)notify the person assessed (or someone lawfully acting on that person’s behalf), in writing, of the decision made about their eligibility for NHS Continuing Healthcare, the reasons for that decision and, where applicable, the matters referred to in paragraph (11); and

(b)make a record of that decision.

(11) Where a relevant body has decided that a person is not eligible for NHS Continuing Healthcare, it must inform the person (or someone acting on that person’s behalf) of the circumstances and manner in which that person may apply for a review of the decision if they are dissatisfied with—

(a)the procedure followed by the relevant body in reaching that decision; or

(b)the primary health need decision made in accordance with paragraph (5)(b).

(12) In carrying out its duties under this regulation, a relevant body must have regard to the National Framework.

(13) In this regulation—

“appropriate clinician” means a person who is—
(a)

responsible for the diagnosis, treatment or care of the person under the 2006 Act in respect of whom a Fast Track Pathway Tool is being completed, and
(b)

a registered nurse(13) or a registered medical practitioner(14);

“healthcare profession” means a profession which is concerned (wholly or partly) with the physical or mental health of individuals (whether or not that person is regulated by, or by virtue of, any enactment);

“multi-disciplinary team” means a team consisting of at least—
(a)

two professionals who are from different healthcare professions, or
(b)

one professional who is from a healthcare profession and one person who is responsible for assessing persons for community care services under section 47 of the National Health Service and Community Care Act 1990(15).

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