NHS Northern, Eastern and Western Devon Clinical Commissioning Group

NHS Northern, Eastern and Western Devon Clinical Commissioning Group Final V15-Individual Package of Care policy Policy relating to the provision of NHS funded care for individual care packages for adults where NEW Devon CCG is the responsible commissioner Sustainable, Equitable and Affordable Care 1

Date 30 October 2015 3 Dec 2015 V2 circulated Version control First draft V1 and circulates internally for initial comments 10 Feb 2016 V3 version updated and circulated in CCG 10 Feb 2016-4 March 2016 V3 V7 versions updated 29 Feb 2016 V8 presented to CHC Control Centre 10 March 2016 14 March 2016 24 March 2016 7 April 2016 V9 presented to NEW Devon CCG Executive Group and solicitors V10 Amended as a result of New Devon Executive Group feedback and solicitors V11 Final feedback and endorsement from solicitors V12 Presented to NEW Devon CCG Governing Body 6 May 2016 V13 Finalised draft for agreement 20 June 2016 V14 final version 25 August 2017 V15 review and revision of section 6 Originator/author Name of responsible committee Date issued August 2017 Alison Round / Susan Benjamin / Jo Shill NEW Devon CCG Governing Body Review date 12 Months from Issue date (Aug 2018) 2

Contents Section Section Title Page 1 Introduction 4 2 Scope 4 3 Key Principles 5 4 Meeting Assessed Care Needs 6 5 Commissioning Appropriate Care Provision 7 6 Exceptionality 8 7 Top up Payments 9 8 Acceptance/Withdrawal of Service 9 9 Review Decisions made through the Application of Policy 9 10 Interim Measures 10 11 Human Rights and duties of the CCG 11 3

1.0 Introduction 1.1 NHS Clinical Commissioning Groups (CCGs) have a delegated target duty to promote a comprehensive health service; they also have a direct statutory duty to ensure that each year their expenditure does not exceed the financial allocations and other sums they receive. Although CCGs are expected to take account of patient choice, they must do so in the context of those two responsibilities. 1.2 This Policy sets out the principles that NHS NEW Devon CCG will adopt when commissioning care packages for individuals, in the context of the personalisation agenda and best use of financial resources. 1.3 This Policy has been developed to ensure: Choice for individuals, as far as is reasonably possible Robust and consistent decision making by NHS NEW Devon CCG Commissioned services meet specified levels of quality and sustainability Value for money Effective partnership working between clinicians, providers and agencies 1.4 This policy has been drafted with the assistance of NHS NEW Devon CCG s legal advisor, on the basis of current legislation, case law, Secretary of State Directions and Department of Health guidance. 1.5 NHS NEW Devon CCG will adhere to the Nolan principles in all its dealings. 1 2.0 Scope 2.1 This Policy is applicable to individuals for whom NHS NEW Devon CCG is the responsible commissioner and who are eligible for care provision funded by the NHS. 2.2 This Policy therefore applies to individuals funded through, but not exclusively: NHS Continuing Healthcare including children Individual Patient Placements (IPP) Section 117 aftercare arrangements where there is a 100% contribution from NHS NEW Devon CCG Jointly funded packages of care *Where relevant, this Policy aligns with the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) 2. 1 https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life--2 2 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213137/national- Framework-for-NHS-CHC-NHS-FNC-Nov-2012.pdf 4

2.3 It is not expected that this Policy would apply to individuals in receipt of Funded Nursing Care, as the registered nursing care contribution is a set amount and nonnegotiable within a care home with nursing facility. 2.4 This Policy will be applied when: An individual is determined newly eligible to receive NHS funded care A significant increase from existing provision is proposed i.e. greater than 10% over and above inflation A review of the care package is undertaken as a planned process, as part of a change in needs, due to changes in care provider or other reasons 3.0 Key Principles 3.1 Where NHS NEW Devon CCG is responsible for funding care for an individual, it will do so in a manner appropriate to meet the individual s assessed health and associated social care needs in full as well as considering individual choice and preferences, quality, safety, sustainability, equity and value for money, as it recognises the need to achieve best use of financial resources for the total population. 3.2 NHS NEW Devon CCG will commission services using models that promote personalisation, choice and control, ensuring that to the extent it is reasonable to do so; the individual s preferences are accommodated. 3.3 Where there is more than one clinically suitable care package identified, an assessment of the total costs of each care package for overall cost-effectiveness, safety and value for money will be made. Although there is no set tariff on expenditure, care packages where the cost exceeds the most cost-effective option by more than 10% will not normally be funded. 3.4 Regular reviews will be undertaken in order to reassess needs and eligibility, as NHS NEW Devon CCG s responsibility to provide care is dependent on needs and not indefinite. 3.5 If the individual does not have the capacity to make an informed choice NHS NEW Devon CCG will commission clinically effective and safe care, taking into consideration an assessment of best interests. The most cost effective care will be commissioned. Such decisions will be taken following consultation with any advocate, close family member or other person who should be consulted under the terms of the Mental Capacity Act (MCA) 2005. If an individual without the mental capacity to make an informed choice is considered to be placing themselves at risk by indicating a choice for a particular package of care, a Mental Capacity Assessment will be undertaken under the provisions of the Mental Capacity Act (MCA) 2005. An IMCA will be offered if the person is not befriended. 5

4.0 Meeting assessed care needs 4.1 Once an individual has been determined eligible to receive care funded by the NHS, their case manager will discuss options on how this could be provided with the individual, or with their representative if they lack the mental capacity to do so themselves. 4.2 There may be several options appropriate to meet the individual s needs and these are likely to take two main forms: A registered care setting (such as a nursing home, residential home or an independent hospital), or Care provided in an individual s own home (a commissioned personal care agency or the offer of a personal health budget (PHB) 4.2.1 When considering the options, the clinical feasibility (i.e. the ability of the package or placement to meet the care needs of the individual), safety, affordability and sustainability of the package or placement will be discussed with the individual/their representative. Discussions will include: Individual preference The suitability and availability of alternative arrangements The willingness and ability of family/informal carers to provide elements of care and the agreement of those persons that the provision of such care will form an integral part of the care plan (note there is no obligation for family members to provide care, the decision is not dependent on this, but where an offer is made, NHS NEW Devon CCG will take this into account as part of the care planning) The accessibility of alternative arrangements particularly where public transport is required for family members to visit The acceptance by the individual/their representative of any identified risks, where plans to minimise such risks can be put in place, which are agreed by the individual, the care provider/s and NHS NEW Devon CCG The likelihood of care package sustainability and the availability of contingency The necessity of appropriate registration of a provider with the Care Quality Commission, and assurance that the provider is not subject to any current enforcement action or under suspension with NHS NEW Devon CCG The requirement for a Provider to hold an appropriate contract with NHS NEW Devon CCG where a service is directly commissioned (i.e. not via a direct payment/phb) The requirement for individuals to have signed the PHB User Agreement which forms the basis of a contract between the individual and NHS NEW Devon CCG (if receiving a direct payment/phb) Cost of alternative care packages 6

The potential risks and benefits of the different packages of care or placements 4.2.2 NHS NEW Devon CCG will offer a reasonable choice of providers to the individual, dependant on available market capacity at the time. 4.2.3 Where family members are willing to provide informal support to maintain a package of care at home, NHS NEW Devon CCG will refer to the local authority for carers assessment and arrange ongoing assessments to ensure that the individual is receiving the appropriate level of care to meet their assessed needs. Should family support be withdrawn, NHS NEW Devon CCG may review the appropriateness of the package. 4.2.4 In cases where it is agreed to provide care in the individual s home, the individual and their representatives need to be aware that a time may come when it will no longer be appropriate or safe to provide care at home, for example if a deterioration in the person s condition requires clinical oversight and 24 hour monitoring, or there is a change in the ability for family to provide informal support. NHS NEW Devon CCG will keep the package under review as to whether it remains clinically appropriate, safe and cost-effective. 5.0 Commissioning appropriate provision of care 5.1 In line with the principles of this Policy, where there is more than one clinically suitable provider identified, an assessment of the sustainability and total costs of each option will be made. Although there is no set tariff on expenditure, options where the weekly fee exceeds the most cost-effective clinically suitable package by more than 10% will not normally be funded. 5.2 NHS NEW Devon CCG will take into account the wishes expressed by an individual or their representatives when making a decision about commissioning care. 5.3 Individuals or their representatives will be given a reasonable choice of providers and will be required to make a decision on their first choice within a 48 hour period. Where no decision is communicated within this timescale, NHS NEW Devon CCG will provide an interim service in order to prevent clinical risks and ensure continuity of care. This approach may be necessary, for example, when an individual is medically fit for hospital discharge, and the chosen provider is not immediately available. 5.4 In some circumstances interim arrangements may be required if there is no capacity for care at home to be delivered, or the first choice of care home for the individual is not available. In all cases, the individual will be accommodated with 7

care provision that is able to meet their assessed health and associated social care needs in full. 5.5 If the individual lacks mental capacity to be involved in the discussion about interim arrangements, NHS NEW Devon CCG will commission the most cost effective care which is clinically suitable taking into account an assessment of best interests (see section 3.5). 5.6 Where an individual or their representative declines all of the options proposed by NHS NEW Devon CCG, they can suggest a different arrangement, as long as it satisfies the following criteria: The preferred care arrangement is safe and meets the required care needs and quality standards The cost of the arrangement does not exceed by more than 10% the most cost effective of the options tabled by NHS NEW Devon CCG. The preferred care arrangement is available within 48 hours. The proposed provider will enter into the NHS Standard Contract unless it is being commissioned by the individual via Direct Payments/PHB 6.0 Exceptionality 6.1 NHS NEW Devon CCG will only fund care in excess of 10% of the most costeffective option which meets the individual s needs in exceptional circumstances which would justify higher expenditure on the one patient as opposed to any other in similar circumstances. and Exceptional in this context is taken to mean in comparison to other people in similar circumstances. The approach used by NHS NEW Devon CCG is to consider in what way the person is significantly different to the general population of people with the condition in question; Whether the person is likely to gain a significant health benefit from adopting the more expensive alternative than might normally be expected for people with that condition. The following factors will be taken into account in determining exceptionality: The factors set out at Paragraph 4.2.1 and the outcome of the discussions The nature, extent and complexity of the individual s needs The extent to which one particular environment might contribute to the individual s wellbeing The human rights of the individual (see section 11) The overall affordability of the package and the impact on the availability of funds for others The safety of the proposed package for the individual, their relatives and carers, whether informal or employed. 8

6.2 Where there is a request for a temporary increase in care, for example, to cover carer illness, where the additional costs are greater than 10% of existing funding, the proposed cost will be considered against any practical and reasonable alternative package of care which is available (e.g. respite care in such cases, the potential length of the arrangements, and the needs of the carer will also be taken into 6.3 Where the case manager, in discussion with the individual or their representatives, considers that exceptional circumstances may pertain, an application will need to be submitted to the Head of Quality Assurance or CCG High Cost Panel for consideration. 7.0 Top up payments 7.1. Top ups cannot be used to fund any element of care that is set out in the individual s care plan, as this is the responsibility of NHS NEW Devon CCG to fund. If an individual or their representative wishes to make arrangements directly with a provider for additional services, they should first notify NHS NEW Devon CCG to ensure that the proposed arrangements do not replace or conflict with the elements of care to be funded by the NHS within the care plan. Examples of permitted arrangements may include hairdressing, massage, reflexology, beauty therapies, or perhaps sitting services if care is being delivered at home. 7.2 It is the responsibility of the individual or their representative to ensure that all providers of top up services are aware that the funding arrangements are separate from NHS NEW Devon CCG s funded package of care, and such arrangements would need to be reviewed and possibly discontinued in the event of the cessation of funding from the individual or their representative. 8.0 Acceptance/Withdrawal of Service 8.1 If the individual or their representative refuses to consider or accept any of the options offered, NHS NEW Devon CCG will consider that it has fulfilled its statutory duty to provide care and inform the individual or their representative in writing that they will need to make their own arrangements for ongoing care within 28 days of the date of the letter. The letter will explain the risks of refusing the proposed arrangements and advise on whom to contact if they change their decision in the future. The risks will also be documented in the individual s care record. If the individual is considered vulnerable, NHS NEW Devon CCG will follow the vulnerable adult protocols and make an appropriate referral to the local authority. 9.0 Review of decisions made through the application of this Policy 9.1 Individuals may be dissatisfied with the application of this Policy in the following circumstances (although this list is not exhaustive): 9

If the offer to fund care in a particular care home is made when the individual or their representative would prefer an alternative care home Where care at home is the preferred option, but provision of care in a placement is more cost effective Where care at home is achievable but the individual or their representative would prefer a provider whose rates exceed the most cost effective option. 9.2 Individuals may ask for a review of the process by which the decision was made in relation to their request for funding a certain package of care or placement. This should be submitted in writing to the Sustainable, Equitable and Affordable Care Policy Review Panel, NHS NEW Devon CCG within 28 days of the care offer. Correspondence should be addressed to the CHC Team in the first instance. Email address: D-CCG.complexcarenewdevon@nhs.net Post to: Patient Safety and Quality, Nursing Directorate, Second Floor Annexe, County Hall, Topsham Road, EX2 4PS. 9.3 The review process does not consider new evidence but reviews the application of this policy in relation to the way in which the decision was made. 9.4 Where the individual requests a review of the process, the Sustainable, Equitable and Affordable Care Policy Review Panel will be able to reach one of two decisions: or Uphold the original decision made by the Quality Assurance Lead or High Cost Panel, Refer the case back to the decision maker(s) based on one of the following points: o The decision makers did not give due consideration or weight to the evidence provided by the applicant o The decision makers did not act in accordance with this Policy 9.5 If new evidence is available which was not originally submitted for consideration, the case will be referred back to the normal decision makers for reconsideration (note the decision makers will be either the Quality Assurance Lead Nurses, the Head of Quality Assurance or the High Cost Panel, depending on financial delegation limits). 9.6 This review process does not alter the individual s right to complain to NHS NEW Devon CCG about their decision with regard to agreeing to fund an individual s care. 10.0 Interim measures pending the outcome of an appeal 10.1 If a request for the review of a decision is made against the proposal to place an individual in a care home setting, rather than funding care at home, an interim arrangement in a care home will be offered until the outcome of the review is decided. If the individual or their representative refuses the offer of the interim placement pending the outcome of the review, they may arrange and fund their own care provision. 10

10.2 If a request for the review of a decision is made against the proposal to place an individual in a care home that is not their preferred choice, the interim arrangement will be offered in the care home supported by NHS NEW Devon CCG until the outcome of the review is decided. If the individual or their representative refuses the offer of the interim placement pending the outcome of the review, they may arrange and fund their own care provision. 10.3 If a request for the review of a decision is made against the proposal to commission a provider of care at home, who is not the first choice of provider; the interim arrangement will be offered with the provider supported by NHS NEW Devon CCG until the outcome of the review is decided. If the individual or their representative refuses the offer of the interim arrangement pending the outcome of the review, they may arrange and fund their own care provision 10.4 If the Individual Care Policy Review Panel refer the case back to the original decision makers, the interim arrangements will continue until the case has been considered again. If there is no change to the original decision, the interim placement or package may then become permanent or the individual/their representative may continue to make and fund their own arrangements. 10.5 In circumstances where the individual or their representative remain dissatisfied with either the process of agreeing how care will be delivered or the application of this policy beyond this appeals process, they will be informed of the complaints process. 11. Human rights and duties of the CCG 11.1 In adopting this policy NHS NEW Devon CCG has taken legal advice in respect of human rights, specifically the right to respect for a person s private and family life provided by Article 8 of the European Convention of Human Rights (ECHR 1950) There is an obligation under article 8 to respect a person's private life. As such, the CCG will consult with the individual about their needs and the possible ways of meeting them. When taking decisions NHS NEW Devon CCG will take into account the relevant factors of the case as set out in this policy. 11.2 It may be an interference with the person s right to respect for home and family life to require him or her to move from home to other accommodation. However, the right to respect for these aspects of privacy under article 8 is qualified, which means that interferences can be permissible, but must be justified. NHS NEW Devon CCG is entitled to have regard to other demands on its resources when determining the extent to which it should use its funds to protect Article 8 rights. 11.3 Any limits of a person s rights must be justified as being a fair and reasonable decision, e.g. on the basis that the package of care is/or had become unsafe, clinically inappropriate, not cost-effective, or unsustainable. 11

11.4 Where a person is already receiving care in their own home, NHS NEW Devon CCG will consider the impact on a person s needs (including physical, psychological and emotional needs) that a move to a different care setting may have. 11.5 Article 8 may also be engaged in the context of ability to maintain family and social links. If NHS NEW Devon CCG s proposed solution would be more remote from the person s family, this will be taken into account. 11.6 There may be circumstances where NHS NEW Devon CCG decides that a care package will not be funded for the individual s current residence and as a result the individual would need to move in order to receive NHS funded care. NHS NEW Devon CCG may justify such restriction where, on a fair application of this policy, it is considered that it is proportionate and justified for a person to move in order to receive appropriate NHS funded care following consideration of the individual factors of the case including clinical and/or cost effectiveness of the care packages available that NHS NEW Devon CCG consider meet a person's reasonable needs. 11.7 NHS NEW Devon CCG has obligations of equality under the Public Sector Equality Duty, and a duty to operate within its financial framework, which must be considered in addition to the Human Rights Act. 12