Just Caring Legal has today sent an open letter to Clinical Commissioning Groups (CCGs) across England to challenge what we believe to be widespread abuse of the eligibility process for NHS Continuing Healthcare. The letter is published below. People all over the country have been getting in touch to tell us that they have been effectively shut out of their NHS Continuing Healthcare eligibility assessments. They say NHS CHC assessors have contacted them to ask for their views on their or their relative’s care needs. But then they have completed the Decision Support Tool – the detailed document used to help assess care needs – in a separate meeting, without them or their relative present. This is against both the spirit and the letter of the National Framework which guides CCGs on NHS CHC assessments. So we have written to all CCGs in England demanding to know the rationale for what appears to be the wholesale abandonment of their person-centred principles. We are demanding that CCGs complete assessments in line with the principles and processes of the National Framework – or face the extra work caused by the enormous number of appeals against ineligibility that will inevitably result if they do not.
Open letter to CCGs
To whom it may concern:
Re: recent nationwide policy on exclusion of individuals and/or their representatives from completion of the NHS Continuing Healthcare Decision Support Tool
It has come to our attention that many Clinical Commissioning Groups across England are following a revised policy on NHS Continuing Healthcare eligibility assessments. Under this policy, assessors are contacting individuals and/or their representative(s) by Zoom or telephone to ask for their input on their care needs, but then completing the Decision Support Tool afterwards without the individual and/or their representative(s) present.
This is clearly an abuse of process and in breach of their legal duties under the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the Standing Rules).
The revised policy is contrary to both the spirit and the letter of the National Framework for NHS Continuing Healthcare (the National Framework). Paragraph 67 of the National Framework states that the process of assessment for eligibility of NHS Continuing Healthcare and all associated decision-making should be person-centred. This means placing the individual at the heart of the assessment and care-planning process.
We would remind you that under the Standing Rules, in carrying out their duties in relation to NHS Continuing Healthcare, CCGs must have regard to the National Framework (regulation 21 (12)).
Paragraph 68 of the National Framework sets out the elements of a person-centred approach, including ensuring that the individual and/or their representative(s) are fully and directly involved in the assessment process.
It should be noted that the National Framework definition of “representative” includes any friend, unpaid carer or family member who is supporting the individual in the process as well as anyone acting in a more formal capacity (e.g., welfare deputy or power of attorney, or an organisation representing the individual).
The National Framework (PG 4.3a) requires that all reasonable efforts should be made to involve the individual and/or their representative in the assessment process. Covid-19 would very rarely preclude the full and direct involvement of the individual and/or their representative(s) in completing the DST via digital means such as Zoom or Teams. Indeed, we have attended several such digital MDT panels since September 2020.
The National Framework requires the MDT meeting to be arranged in a way that enables that individual and/or representative(s) to give their views on the completed domain levels before they leave the assessment meeting (PG note 24.2).
The DST specifically requires the MDT to record (PG 4.3):
- whether the individual was involved in its completion
- whether they were offered the opportunity to have a representative
- whether the representative attended the DST completion
- the individual’s view of their own care/support needs
- whether the MDT assessment accurately reflects these
- whether they contributed to the assessment
- whether they agree with the domain levels selected
- reasons for any disagreement on the domain levels selected.
It is the role of the NHS Continuing Healthcare coordinator to support the person and their representative(s) to play a full role in the eligibility consideration process, by organising the overall process in a manner that maximises their ability to participate (PG 20.1). It is also their role to ensure that the DST is completed in accordance with the requirements in the National Framework and relevant standing rules/regulations.
The departures we are seeing across the country from these integral requirements of the National Framework are now so frequent as to point to a system-wide shift in processes. We therefore demand total transparency and clarity on the rationale for the wholesale abandonment by CCGs of the person-centred principles which form the very core of the NHS Continuing Healthcare process. We require CCGs to make public any revised guidance, programme of work or policy changes from Government or NHS England that they may be working to when conducting NHS CHC eligibility assessments effectively behind closed doors.
Furthermore, we demand that CCGs take immediate steps to ensure that NHS Continuing Healthcare coordinators and MDTs are organising and carrying out their duties in relation to the eligibility assessment process in compliance with the Standing Rules and the National Framework.
This requires that they:
- arrange MDT eligibility assessment meetings in such a way and at such a time as to maximise the ability of the individual and/or their representative(s) to fully and directly participate in the completion of the Decision Support Tool;
- make all reasonable efforts to ensure that the Decision Support Tool is completed at the virtual MDT meeting with the individual and/or their representative(s) present, that all domains are discussed within this meeting and the scoring is decided within this meeting with the individual and/or representative(s)’ views of their care needs given full weight alongside the professionals’ views;
- ensure that the individual’s/representative(s)’ view of their own care/support needs and whether they believe the MDT assessment accurately reflects this view are recorded;
- discuss and record the views of the individual/representative(s) on what they believe are the correct domain levels and the domain levels selected by the MDT;
- record the reasons for any disagreement on domain levels between the individual/representative(s) and the MDT.
If the MDT retires to discuss its recommendation following the completion of the DST, it must communicate the outcome to the individual and/or their representative(s) as soon as possible (Practice Guidance note 24.3 of the National Framework). The individual and/or their representative(s) must not be forced to wait until the eligibility decision is made and communicated to them by the CCG to learn the outcome of the DST and the recommendation of the MDT. Any failure to meet these requirements may be deemed an abuse of process, representing clear grounds for appeal of any subsequent decision.
I look forward to your full co-operation in this matter and a response clarifying your current stance.
Just Caring Legal