Best interests and mental capacity
Nicholas Endean | 04.05.2018
26.07.2017 Nicholas Endean
A recent report published by the National Audit Office (“NAO”) has highlighted the all too well-known systemic failings of NHS continuing healthcare (“CHC”).
Those individuals and families who have applied for CHC funding will already be acutely aware of just how complex the CHC assessment process is for the applicant and/or their representatives, and how difficult it is for eligible persons to access the funding they are entitled to.
Public awareness of what CHC means and how to apply for CHC funding is still an issue. Many wrongly assume that as with social care funding (where the local authority pays the bill for care fees) CHC funding is means tested.
In simple terms, CHC is a complete package of care provided outside of a hospital setting, arranged and funded solely by the NHS for individuals who are considered to demonstrate a “primary health need”. Eligibility requires the applicant to demonstrate they have healthcare needs which cannot reasonably be met by a Local Authority, through the application of a two-stage test. Firstly, the applicant must establish the requisite levels of need in each of the 12 care domains. Secondly, there must be evidence to show the applicant’s care needs are within their nature, intensity, complexity or unpredictability indicative of a “primary health need”.
Although the concept of CHC seems simple, the reality painted by the NAO report and a recent survey completed by the Times is that CHC funding is anything but simple.
The assessment process is riddled with inconsistencies between different Clinical Commissioning Groups (“CCGs”), a lack of assurance process is in place to ensure that eligibility decisions are consistent both between and within CCGs, and the application process is subject to extensive delays throughout the assessment process.
We are regularly instructed to represent applicants through the CHC funding assessment process. Applicants are frequently left bamboozled by the approach of different CCGs whom attempt to introduce assessment processes which are not in keeping with the processes provided for by the National Framework for NHS continuing healthcare (“Framework”). The Framework sets out a clear process to determine an applicant’s eligibility and to challenge a CCG’s decision, yet CCGs often cause confusion with the introduction of additional or replacement assessment processes.
It is almost certain that the decision to determine whether an applicant is eligible for CHC funding will not be made within 28 days in contravention of the Framework. It is not uncommon for an applicant to wait 6 months or more from the date the Checklist Assessment is completed (to determine if an applicant is eligible for a full CHC assessment) until the Multi-Disciplinary Team meeting (“MDT”) assessment to determine eligibility is completed.
The failure to ensure due process through the correct application of the Framework at the MDT stage, which includes the tendency by CCGs to ignore the crucial evidence of representatives, and focus on evidence contained within care and/or medical records, to ignore case law and/or fundamental principles of the Framework such as “the well-managed needs” principle, combined with the determination by CCGs to act as gatekeepers to CHC funding in contradiction to the Framework’s guidance, all leads to a chaotic and lengthy CHC funding system.
In the 12 months prior to the end of April 2017 there were 628 complaints about CHC funding to the Parliamentary and Health Service Ombudsman alone. The problem is quite clear. If CCGs were to act in accordance with the Framework, implement case law and the fundamental principles of CHC, applicants would be determined eligible at an earlier stage in the assessment process, and we could avoid the extensive time and cost involved because applicants are left with no choice but to challenge a CCG’s eligibility decision to a Local Appeal meeting or beyond.
All we can hope is that the NAO’s report will serve to remind CCGs that they are legally required to ensure the CHC assessment process is compliant with case law, and the provisions of the Framework. Despite the public’s perception, the concept of CHC and the Framework is clear, the problem lies with the complexity CCGs add to the assessment process, which leaves applicants in a state of flux.