Best interests and mental capacity
Nicholas Endean | 04.05.2018
22.02.2018 Nicholas Endean
Today marks #WorldEncephalitisDay. Encephalitis is a serious neurological condition that can have a severe impact on a person’s care needs. The consequences are often life-changing and individuals affected can be left with a need for care provision capable of meeting complex care needs.
Many may not be aware of the NHS provision which can be secured to help meet complex care needs.
For individuals who have been diagnosed with Encephalitis, it is essential to consider NHS Continuing Healthcare because often there is a particular complexity of care needs post diagnosis.
NHS Continuing Healthcare is a complete package of care funded solely by the NHS, for those assessed as eligible. If the recipient lives in a care home, the NHS will make a contract with the care home and will pay the full fees, including fees incurred for accommodation and care. If the recipient receives care at home, the NHS will pay the full costs of an agreed care package. NHS Continuing Healthcare in its simplest terms is a complete package of ongoing care arranged and funded by the NHS.
The assessment process is governed by the National Framework for NHS Continuing Healthcare (“Framework”), and the Decision Support Tool (“DST”).
Eligibility decisions for NHS Continuing Healthcare rest on whether or not the need for care is due to a ‘primary health need’.
To determine whether a person has a ‘primary health need’, the DST requires the application of what is essentially a two-stage test.
The first stage requires the assessors to look at 12 distinct care domains or generic areas of need which are sub-divided into categories and different bands for scoring purposes. If the requisite level of needs has been established, the second stage to decide if the ‘quantity and/or quality of care’ needed to manage needs is beyond the limits of a Local Authority’s responsibilities and thus fulfils the criteria for a ‘primary health need’.
This requires assessors to consider those needs in combination or alone in terms of the following key indicators:
Although eligibility for NHS Continuing Healthcare is not diagnosis based, it can be argued that Encephalitis results in a particular complexity of care needs, indicative of a primary health need (i.e. it is the complexity of needs which result from Encephalitis, as opposed to the diagnosis of Encephalitis which is indicative of a primary health need).
The diagram produced by the Encephalitis Society goes some way to demonstrate the particular complexity of needs which result from an Encephalitis diagnosis, and neatly summarises why an individual diagnosed with Encephalitis may demonstrate a primary health need:
At Moore Blatch, we act for individuals diagnosed with Encephalitis and their representatives throughout the inherently complex NHS Continuing Healthcare assessment process.
Recently we achieved a successful appeal of a previous refusal to award NHS Continuing Healthcare status to an individual diagnosed with Encephalitis, which has resulted in a refund of care fees paid in excess of £200,000.00.
If you have concerns about the NHS Continuing Healthcare assessment process, please do not hesitate to contact the Community Care team for advice on 023 8071 8195 or visit our website.