Best interests and mental capacity
Nicholas Endean | 04.05.2018
23.03.2018 Mea North
The media is rife with the news that a number of Clinical Commissioning Groups (the NHS bodies responsible for making decisions about NHS Continuing Heathcare) (CCGs) are at risk of legal action if they cannot show that their policies on where that care can be provided are lawful.
NHS Continuing Healthcare is a package of care, fully funded by the NHS regardless of a person’s means, for individuals who have complex, ongoing healthcare needs. There is a robust assessment process set out in the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (the Framework) to determine whether an individual’s needs are beyond those which a Local Authority providing social services can be expected to provide for. This carries its own challenges, which are beyond the scope of this article. If you would like more information on the assessment process please have a look at our web pages, or contact us for more detail.
Once an individual is assessed as having a “primary health need” the relevant CCG is then responsible for planning and commissioning an appropriate package of care. The package to be provided must be sufficient to meet the individual’s assessed health and social care needs and can be provided at home, in a residential or nursing home setting.
So what’s the problem? The 13 CCGs that have been named are being criticised for having policies in place that prevent an individual from receiving care at home, if it is considered to be too expensive. In these cases, where a residential placement in either a care home, or specialist nursing home would be a cheaper option, individuals are being denied the opportunity to remain at home with their loved ones. Rebecca Hilsenrath, Chief Executive at the Equality and Human Rights Commission said “It is utterly unacceptable that anyone should be forced into residential care when they are healthy enough to live independently and with their families….A ‘one-size fits all’ approach will never properly address every single individual’s healthcare needs, and NHS CHC policies are no different.”
The Framework gives very clear guidance on this issue and states that CCGs should commission services that maximise personalisation and reflect the individual’s preferences as far as possible.
There is further Practice Guidance on this in the Framework which specifically addresses the issue at hand:
“PG 83: What limits (if any) can be put on individual choice where, if followed, this would result in a CCG paying for a very expensive care arrangement? Under what circumstances can a CCG decline to provide care in the preferred setting of the individual?”
The guidance is clear:
“83.3 In some situations a model of support preferred by the individual will be more expensive than other options. CCGs can take comparative costs and value for money into account when determining the model of support to be provided but should consider the following factors when doing so:
a) The cost comparison has to be on the basis of the genuine costs of alternative models. A comparison with the cost of supporting a person in a care home should be based on the actual costs that would be incurred in supporting a person with the specific needs in the case and not on an assumed standard care home cost.
b) Where a person prefers to be supported in their own home, the actual costs of doing this should be identified on the basis of the individual’s assessed needs and agreed desired outcomes. For example, individuals can sometimes be described as needing 24-hour care when what is meant is that they need ready access to support and/or supervision. CCGs should consider whether models such as assistive technology could meet some of these needs. Where individuals are assessed as requiring nursing care, CCGs should identify whether their needs require the actual presence of a nurse at all times or whether the needs are for qualified nursing staff or specific tasks or to provide overall supervision. The willingness of family members to supplement support should also be taken into account, although no pressure should be put on them to offer such support. CCGs should not make assumptions about any individual, group or community being available to care for family members.
c) Cost has to be balanced against other factors in the individual case, such as an individual’s desire to continue to live in a family environment”
Not only do these CCGs policies appear to be in direct breach of the Framework and it’s “Core Values and Principles”; namely placing the individual at the heart of the decision making process; the Equality and Human Rights Commission have also raised concerns that they breach the Human Rights Act and Public Sector Equality Duty by discriminating against these individuals.
The CCGs concerned have been sent a letter from the Commission setting out these concerns in detail, which is the first step toward issuing judicial review proceedings. A judicial review is a formal legal action which will see the policies being examined in court to determine whether or not they are lawful. The CCGs have been given 14 days to respond to the letter, which was sent on 19 March 2018, after which time further steps may well be taken.
Sadly, it is not only these 13 CCGs who are getting it wrong. All too often we are contacted by families who have been told that their loved one must move into a residential or nursing home because the care they require is too great. In these cases families do not always know that they have a choice. In addition we see cases where individuals have been given a personal health budget to meet their needs at home, but the budget is insufficient to meet their assessed needs and as a result they feel that the only safe option is to move to a care home.
We regularly act for individuals or their representatives to advocate on their behalf with CCGs to ensure that their personal preferences are given sufficient weight, or to negotiate and broker a personal health budget that is commensurate with the individual’s need.
For more information, or a free no obligation chat, please contact us on 02380 71 8195 and ask to speak to a member of the team.