NHS Continuing Healthcare. Public Information about CHC Eligibility and the Appeals Process. November 2010 (Amended Oct 2018)

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1 NHS Continuing Healthcare Public Information about CHC Eligibility and the Appeals Process November 2010 (Amended Oct 2018)

2 BACKGROUND The Department of Health established a National Framework for NHS Continuing Health Care and NHS Funded Nursing Care in October The framework set out a common process to be adopted by the NHS and Local Authorities when considering whether a patient had a primary health need and therefore was considered for fully funded NHS CHC. The framework has been subject to review on two occasions a revised National Framework for NHS CHC and supporting tools was introduced with effect from November ELIGIBILITY FOR CONTINUING HEALTH CARE Eligibility for NHS Continuing Health Care is not dependent on a particular disease, diagnosis or condition, nor does it depend on who provides the care or where the person lives. It can be provided in a care home, a care home with nursing or in the person s own home. NHS Continuing Health Care is fully funded by the NHS because NHS care is free. On this basis, eligibility is determined by whether or not a person has a primary need for health care as opposed to personal social care and the need for a safe environment which a local authority could be expected to provide. However, because a person s care needs include the need for nursing care does not automatically make them eligible for full NHS funding; this is often only one element of a person s care package and the panel needs to look at the full picture of the person s needs in order to determine whether they have a primary need for health care. The primary need is assessed by looking at all of a person s care needs in detail and relating them to four key indicators: Nature: Complexity: Intensity: Unpredictability: the type of condition or treatment required and it s quality and quantity. symptoms which interact, making them difficult to manage or control. one or more needs which are so severe that they require regular interventions unexpected changes in condition which are difficult to manage and present a risk to the individual or others. MINIMUM PROCESS REQUIREMENTS BEFORE AN APPEAL CAN PROCEED

3 Before proceeding with a Local Appeals Panel the senior commissioner for CHC will ensure that the following key elements of the process have been complied with: 1. There must have been a full assessment using the national Decision Support Tool (DST) 2. The DST must have been completed by a trained CHC Assessor with involvement of other MDT members (as defined in the operational policy for the assessment process) 3. The decision on eligibility has been confirmed in writing by the Senior Commissioning Manager to the individual or their representative 4. A copy of the DST has been provided to the individual or their representative 5. If it was not possible for family members to be involved and participate in the assessment, for whatever reason, arrangements should be made for the CHC Assessor (or other person designated by the senior commissioner) to discuss the DST with them STAGES FOR APPEALS PROCESS The stages of the appeals process are summarised as follows:- Stage 1: Informal procedure Discussion with individual or their representatives with one or more members of the MDT or separate discussion with the CHC Assessment Co-ordinator and /or Lead Nurse, if appropriate. If the individual is not satisfied, then an appeal can be made by the individual or their representative in writing to the CCG. Stage 2: Local Appeal Panel Hearing Individual or their representative has the right to make a case for eligibility to a Local Appeal Panel. Written communication with explanation to individual or their representative within 15 working days Stage 3: Appeal to NHS England If the individual or their representative does not accept the decision of the Local Appeal Panel they can ask NHS England to convene an Independent Review Panel (IRP) to consider the case

4 Stage 4: Appeal to the Parliamentary and Health Service Ombudsman If the individual is dissatisfied with the outcome of the Independent Review Panel they have the right to appeal to the Parliamentary and Health Service Ombudsman. The PHSO cannot make a decision on eligibility but can examine the process by which the decision has been reviewed by the CCG and NHSE at Stages 2 and 3 above ROLE OF THE LOCAL APPEAL PANEL The role of the Local Appeal Panel is to ensure that: 1. the assessment process has been followed (see minimum requirements) 2. the assessment is an accurate reflection of the individual s care needs 3. these have been properly applied to the eligibility criteria set out in the National Framework for NHS CHC (i.e. that the individual has a primary health need) YOU SHOULD BE AWARE THAT THE PANEL CANNOT Consider challenges to, or make rulings against, the lawfulness of the National Framework for NHS Continuing Health Care or NHS Funded Nursing Care (applicable to claim periods after 1 October 2007) these would need to be sent to the Department of Health who would respond within their complaints procedures. Review challenges to decisions relating to claims for funding prior to 1 st April 1996 because there was no requirement for NHS organisations to have eligibility criteria in place prior to that date Deal with complaints regarding decisions made by the local authority/ social services departments, e.g.: policies for means testing; quality of information about care homes; policies regarding the sale of assets in order to fund care these should be sent to the relevant local authority who will respond within their complaints procedures. Deal with complaints about the length of time taken to process your claim for NHS Continuing Health Care these will be dealt with within the NHS complaints procedures. Deal with complaints about the type and location of any offer of NHS Funded Continuing Care services these should be sent to the Senior Commissioning

5 Manager who will respond within NHS complaints procedures Deal with complaints about the content of any alternative care packages which have been offered these should be sent to the Senior Commissioning Manager who will respond within NHS complaints procedures Deal with complaints about the treatment or services a patient may be receiving or has received these should be sent to the relevant organisation providing the service, who will respond within NHS complaints procedures. SHARING OF PATIENT INFORMATION CCGs have to comply with all the legal rules that govern when we can share patient information. We want to be sure that we are able to fully consider all relevant information and share this with families who may be seeking a review, whilst taking care that we do not share patient information inappropriately. CCGs have adopted the following policy for sharing of patient information in relation to NHS Continuing Health Care: For individuals lacking capacity and therefore unable to take their own decisions If you are acting on behalf of the patient and hold an Enduring Power of Attorney registered with the Court of Protection (prior to 1 st October 2007); or hold a Lasting Power of Attorney (post 1 st October 2007) you may in general exercise the patient s right of access under the Data Protection Act 1998 on behalf of the patient. The CCG will need to have a copy of this documentation before records are shared. Where there is no right of access to patient records, the CCG may disclose some information on a voluntary basis. Any such disclosure must, however, take into account the duty of confidence owed to the patient. Any information disclosed on a voluntary basis will be limited to the minimum information necessary for you to contribute usefully to the review procedure. For Deceased Patients Where you are the personal representative of the deceased or another person with a claim arising out of the patient s death, you have a right of access to information relevant to your claim under the Access to Health Records Act The CCG will need to have a copy of your authorisation to act on behalf of the

6 patient and disclosure of any information will be subject to the following limitations: The CCG must take into account the duty of confidence owed to the patient - this exists even if the patient has died. Therefore registered Power of Attorney must be provided with your application, The CCG must also consider whether the patient would have wanted or expected information to be disclosed to any other persons. This safeguard forms part of the Access to Health Records Act In all cases, the CCG will seek the opinion of one of its senior clinical governance staff members to ensure that any records disclosed comply with the Data Protection Act 1998 and the Access to Health Records Act For Individuals with Capacity Where an individual has capacity to make their own decisions, they have the right to be consulted about what information they want shared with relatives/advocates who may be supporting them. The individual can specify they do not want all information shared. Third Party Information The panel will have access to all relevant documentation relating to the case under review and this may include information provided by third parties. Please note that the CCG and panel may not be in a position to share the totality of this documentation where third party information is held. This can include care home records, GP notes and records from the local authority (social services). The NHS has a duty to protect the privacy of the individuals named in the records but also has a duty, as the data controller, to consider whether it is reasonable to disclose the records. Any such disclosure will be the minimum information necessary to satisfy the purposes of the disclosure e.g. to enable someone representing an applicant to contribute usefully to the review process for NHS Continuing Health care. If the CCG considers it inappropriate to release certain third party records as part of the review process, the individual is entitled to request copies from the originating organisation.

7 Additional Information produced on the day If any additional information that you have not shared with the CCG is presented to the Chair on the day of the panel hearing, this may result in the Local Appeal Panel being postponed to a later date while the panel consider the evidence. Therefore, it is in your best interest to send all relevant information you feel could influence the outcome of the case to the CCG at least seven days before the Local Appeal Panel is due to take place. LOCAL APPEAL PANEL PROCEDURE what you can expect It is expected that the local appeal panel will follow a set format: CCG and family representatives will be invited into the meeting and introduced to all those in the room. The panel will consist of: The Panel Chair A representative from the Local Authority A Senior Manager from the CCG A Clinical Advisor (if appropriate) The chair will invite the patient and/or family representatives to set out the reason for their request of a review of the MDT s recommendation and to make any opening remarks they feel appropriate. The chair will then ask the patient/family to give their view on their relative s health needs, concentrating on the decision support tool and domains. The chair may invite the CCG (usually the Clinical Advisor) to give a brief overview of the case, including a summary of the individual s care needs, from the Needs Portrait. The chair and panel members may then choose to question both the family member and the clinical advisor so that they have clarification on any points that may be of concern to them. The individual/family may ask questions at any time to clarify their understanding of any point which has been made. At conclusion of the above process, the chair will thank the family representatives for attending, set out the timescale for issue of the panel report and ask the family / representatives to leave the room.

8 INVOLVEMENT OF SOLICITORS Some families appoint a solicitor to act as an advocate for them at the Local Appeal Panel hearing. It is important to note that the local appeal panel meetings are not a legal process, or quasi-judicial hearing. Chairs of panels will not allow proceedings to be drawn into discussions on points of law. The appeal process is not a legal process and is based on the judgement of clinical / professional staff about care needs. People making appeals are therefore advised that the CCG will not meet any legal costs incurred, even if the appeal is successful. ROLE OF THE CLINICAL ADVISOR Most panels will have a clinical advisor present. Their role is to: Advise the Local Appeal Panel on the original clinical judgements and how they relate to the National Framework. They should not provide a second opinion on the clinical diagnosis, management or prognosis of the individual. Examine the information provided in the case file. Panels may also wish to seek the advice of a Clinical Advisor to help understand the wider nature of conditions and how different needs may interact. Ensure that no significant clinical issues have been overlooked by the panel during their deliberations. Provide any other observation on the holistic clinical care needs associated with the condition. Advise the panel on whether any information provided by the person making the appeal could have a bearing on the outcome on eligibility. Advise the panel on whether any important information or evidence is missing which could influence the outcome of the decision (this could include seeking advice from other clinical specialists if appropriate).

9 RECORD OF APPEAL PANEL PROCEEDINGS The notes of the Local Appeal Panel will be produced in the form of a report which summarises the important factors which inform the decision making. This will include a care domain comparison page so that the views of the family can be compared with the MDT s view and the conclusion reached on each domain by the Local Appeals Panel. The notes will record the way in which the appeal panel considered each of the four key factors which help determine a primary health need (i.e. nature, complexity, unpredictability and intensity). A copy of this summary will be forwarded to the appellant with information as to how to contact NHS England should they wish to request an Independent Review of the case

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