How to challenge Continuing Care decisions

Continuing  Healthcare can be defined as care provided over an extended period of time, to a person aged 18 or over, to meet physical or mental needs that have arisen as a result of disability, accident or illness.

The NHS limits access to free care, i.e. NHS continuing healthcare through eligibility criteria and  at the end of the second quarter of 2013  59 ,000 patients were eligible for NHS Continuing Healthcare (NHS CHC).

The stakes are high because given the cost of care; many people will be forced to sell their homes if they do not have the benefit.

The diagnosis of a particular disease or condition does not in itself guarantee that someone will be entitled to funding for NHS continuing healthcare. It is only an individual’s assessed healthcare needs that determine eligibility. Irrespective of one’s age and financial status, you can (theoretically) get it.  Currently if you have assets of more than £23,250, you will have to pay for the costs your care, whether that is care in your own home, or in a Nursing or Residential Care Home. However, If one thinks you have “primary health care needs”, you should have your eligibility for NHS Continuing Healthcare Funding assessed first.

How is it assessed?

The way to determine if someone is entitled to Continuing Healthcare is by the conducting of an assessment from the PCT. The process Is done by initial assessment and this initial screening process estimates eligibility for continuing healthcare At this point a health professional will decide if a full assessment will be made. If one is not satisfied with the answer here, it is possible to challenge it.

The full assessment is done using a standard form called the Decision Support Tool and there is a section for 12 different care domains (which are behaviour, cognition, psychological and emotional needs, mobility, communication, nutrition, continence, skin, breathing, drug therapies, altered states of consciousness and the catch all of other significant care needs).

Is the decision always correct?

One of the problems of the Decision Support Tool and the guidance within it is that implies that unless a person has needs within the 12 domains of 1 (priority) or 2 severe, then they would not necessarily be entitled to NHS Continuing healthcare. Despite the guidance stating that the patients might still qualify for NHS Continuing Care if they score one severe or a range of high and mediums, such people are often turned down. Therefore it is  not easy to obtain the benefit.

Furthermore, the chances of success vary according to one’s postcode. Different PCTs interpret the rules differently. By way of example a survey by Community Care Magazine found that 40% of completed challenges were successful.  The number of appeals rose by 9% from 2009-10 to 2010-11 while the proportion of successful completed challenges rose from 33% to 40%, a freedom of information survey of 49 primary care trusts or PCT clusters found. Within these figures, different PCTS had significantly different rates of success in defending appeal.

How can you challenge the decision?

Therefore if the initial step is to have an assessment of the person seeking to have care and that fails; what recourse do you have?

The national framework for NHS continuing healthcare, introduced in October 2007 and revised in November 2012 was not prescriptive about the process of dispute resolution, so local NHS Clinical Commission Groups have adopted different procedures.

The first point of call is to ask for a for a copy of the relevant NHS review/appeal rules immediately to ensure you do not miss any deadlines and you can get a better indication of where you are going.

Once you get into the appeal process, irrespective of where you are, essentially you have a three stage appeal process which is.

1. Local resolution- The first stage involves a local resolution process by a PCT panel review. This can be commenced by writing to the chief executive of the PCT. Sometimes the PCT will refer the case to another PCT nearby in order to prevent bias happening. If this works, all well and good. If not….you may move to the next stage..

2. Independent review panel– This stage is to appeal to the Strategic Heath Authority’s independent review panel (IRP). The appeal must be done on the basis that the procedure used to reach the decision was wrong or that the Decision Support tool was not applied correctly. If the NHS review maintains the original decision, you can ask for the case to be referred to NHS England’s independent review panel (IRP). You can also apply directly to the IRP if the local resolution stage is taking too long. However, the IRP process is also characterised by long delays and you should be prepared for a long wait. To be clear, The IRP has an advisory role and can only offer guidance on the validity of the NHS decision and Whether the NHS correctly applied the national framework criteria. Nevertheless,  NHS CCGs should accept IRP decisions in all but exceptional cases.

3. Ombudsman -The final stage of the appeal is the Health Service Ombudsman. An Ombudsman is able to investigate a complaint and/or ask the PCT to review the case again.

It is important to recognise that the dispute resolution process can only address whether the national framework and guidance (including the completed continuing care decision support tool) has been applied correctly in each case. Concerns about the type of care, or the location of the care package, are addressed by a separate process.

To help maximise your chances of getting a good result, during the assessment and the appeals process, consider the following:

1. Ask the PCT to ensure you are given the opportunity to see the full Decision.
2. Complete a Decision Tool in order to compare their assessment and that of a professional.
3. Have a journal of the patient’s day to day life over a long term period. E.g up to a month. This c can be shown to an assessor or to an appeals board in order to see problems that are experienced consistently over a period of time. The assessor when he or she is doing the assessment will only have a snapshot picked up in the hour or so of the assessment.
4. Request medical records from various bodies involved in the care of the person e.g. the hospital or the GP.
5. Ensure that all relevant reports have been obtained from specialists and are accurate.
6. Make sure you deal with any time-deadlines for reassessments/other deadlines. In March 2012 the Department of Health announced some changes to timescales for appealing NHS Continuing Care decisions. Since 1 April 2012 people have 6 months from the date of a decision to begin an appeal with the PCT concerned. The PCT will then have 3 months to conduct the review. The person will then have 6 months to begin an appeal with the SHA. The SHA will then have 3 months to conduct the review.
7. Keep the information orderly. A neat file, with telephone attendance notes, care notes, reports split will make your chances of success much more possible
8. Try to be detached as much as possible .It is difficult, but being mentally strong and positive you have a greater chance of success.
9. Finally, maintain the faith. It is a difficult and timely process but people who hang in there can succeed. The well documented case of Coughlan changed the law. The ruling made it that it was the responsibility of the health service to look after someone with severe medical problems.  No savings and assets came into the equation in seeing who picks up the bill..

Justin Patten is principal at Human Law and is a solicitor and a mediator on elderly client issues.