Your continuing healthcare questions answered

By Belinda Schwehr

These questions have been raised with Belinda through her legal training sessions and webinars.

Care Act impact

Has the line between what’s ‘health’ and what’s ‘care’ inevitably shifted since the Care Act came in?

I think it has, although the government says that’s not the intention, and the NHS may not therefore even understand how the new law could help it to say that more of what it used to provide free, could now be seen as social services’ responsibility. The responses that can now be provided by way of social care are more loosely worded, and hence broader in scope, in my view. And there’s been a case about funded nursing care in the Welsh system that looks like concluding that the NHS can decide what sort of things do have to be done by a registered nurse, and what tasks don’t, for funding purposes in a nursing home. This means that either the local authority or self-funders will be paying for everything else, for most people (Forge Care Homes Ltd & Others v Cardiff & Vale University Health Board [2016] EWCA Civ 26).

I also think that the concept of what’s ancillary and incidental to social care, as a test of what is not beyond a local authority’s legal remit, has been made wider, by the Care Act and now applies expressly in the community as well as in nursing homes. However, the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care is still applicable in its current form, and the NHS’s own legislative obligations extend to care and aftercare, not just to medical and ‘registered’ nursing input. However, I do think the framework needs updating, and I would expect to see subtle changes in its discussion of what is ancillary and incidental to social care, when that is completed.

End-of-life care

We were turned down for fast-track access to CHC on the basis that there was no point, because it would take too long to organise it, and my father would be dead by then anyway.

What appalling governance must be going on there, then, is all I can say! The national framework is explicit about the opinion of the appropriate clinician being enough to open the door to CHC immediately; and if a clinical commissioning group can’t manage to commission care within 24 hours, then its end-of-life strategy is inadequate, to my mind. A person in that situation should have the care bought for them at whatever cost it takes, and the invoice sent to the CCG for them to use publicly as an example of a managed personal health budget.

The framework says this: “Where a recommendation is made for an urgent package of care via the fast-track process, this should be accepted and actioned immediately by CCGs. It is not appropriate for individuals to experience delay in the delivery of their care package while disputes over the use of the Fast Track Pathway Tool are resolved. CCGs should carefully monitor use of the tool and raise any specific concerns with clinicians, teams and organisations. However, this should be treated as a separate matter from the task of arranging for service provision in the individual case.”

Primary health need

What is ‘primary health need’? Surely it must be about having more health types of needs than social care needs?

Well, it all depends on what one means by ‘a health need’! Normal people think it must mean registered nursing, attention from clinicians, highly skilled interventions etc, but that’s not true. ‘Primary health need’ is government ordained shorthand for a  quantity and quality-based exploration of the needs profile, focusing on nature, intensity, complexity and unpredictability of any type of needs that the health service has any legal power to pay for.

Having a ‘health need’ (let alone a primary one) does not and never has just turned on needing a doctor, medicine or registered nurse. It covers care and aftercare as well, and anything related to diagnosis, treatment or prevention of an illness, injury or disability (whether or not the tasks involved have to be carried out by a health professional).

That is what the NHS legislation says is the remit of the NHS, and that legislation defines ‘illness’ to include any condition or disorder that requires nursing, whether that nursing would count as registered nursing, or something much broader, such as what healthcare assistants do in hospitals. The decision support tool (DST) is designed to ensure that people with traditional social care needs can never qualify on the basis of those alone, by pre-suppressing the level at which at least seven of the domains can ever be scored (eight if you count the ‘other’ domain).

Multi-disciplinary teams and panels

In our area, the multi-disciplinary team (MDT) culture is that staff (particularly the nurse assessors employed directly by the CCG) simply fail to agree, and the nurse assessor just writes down ‘No Agreement’ against the domains, so the panel gets to make all the decisions. Is this lawful?

No, no way! The framework requires strenuous and conscientious attempts to agree, with the default position for domain scoring required to be that where there is no agreement, the higher score is allocated, with reasons for disagreement stated. There’s no such rule for cases where a recommendation for or against awarding NHS continuing care is not agreed; but in those supposedly rare cases where no consensus is reached, the ratifying panel is supposed to focus on the problem and send the case back to the MDT, with advice or indications as to what more should be probed, in order to assist in reaching a recommendation.

Only in urgent cases is the panel ever supposed to be the actual decision-maker. The primary role of the panel is to audit cases for incoherent or inadequate MDT paperwork, and return this to the MDT staff, and in all other cases to ratify a clinically-led and framework-compliant recommendation.

In an internal dispute resolution mode, however, as between health and social services, a panel can be a decision-maker; but something will have gone very wrong with the training and the governance culture in both the CCG and the council, if the majority of cases are being treated as health versus social services disputes.

Eligibility issues

What does it mean to say that ‘continuity’ is an aspect of intensity for the purposes of CHC? Does this mean that everyone with long-term conditions qualifies?

Not automatically, no; but they should be scored higher overall, or the rationale for the recommendation needs to address how that element has contributed to the overall evaluation of the profile for the primary health needs test. Continuity has been something that the courts told the NHS in the Coughlan case needed to be given weight – in Ms Coughlan’s case it was an important element, because her needs were wide-ranging and lifelong.

So continuity doesn’t just mean continuous care, day by day; it’s also fair to regard it as an upwards pointer to CHC if it is going to be needed, decade by decade. The concept has been located within ‘intensity’ in the national framework for all these years, but not elaborated upon, which has probably led to multi-disciplinary teams simply not being trained to consider its impact, in their domain scoring or the rationale.

Social services eligibility criteria don’t mention behaviour, breathing, administration of medicine or altered states of consciousness. Does that mean that everyone with those issues automatically qualifies, for example everyone with a learning disability that makes them presents with challenging behaviour gets CHC?

No. If one looks at the ‘outcomes’ in the Care Act eligibility regulations, one can see that challenging behaviour could affect many of them. The issue is not being able to achieve the outcome, alone and without significant endangerment to self and others. Eligibility turns on that ‘fact’ and the significance of the impact for well-being. If one then compares the descriptions of severe and priority levels of behaviour in the decision support tool one can see that the terminology refers to ‘challenging’ behaviour of severity and/or frequency that poses a significant (or for priority, significant, immediate and serious) risk to self, others or property, with a need for access to prompt or immediate and skilled responses to ensure safe care. There is thus a conceptual distinction based on extremity, in my view.

Joint working

What should a health and social services joint working approach to carers’ services be?

Well, the carer is saving the NHS money, if the person is caring for a CHC client. So the NHS should pay for the carers’ respite, because coverage is the service user’s need, effectively, on any day when the carer isn’t willing and able to care. That carer input, however, is one of the things making it possible for the CCG to treat the person’s package in his or her own home as cost-effective when comparing the cost to providing CHC in a care home, quite often. So carers need an honest conversation about that, to be able to understand the potential impact of their withdrawal of willing support, on the CCG’s decision about setting. Local authorities can legally ‘help’, with direct support of CHC patients’ carers through assessment rights and personal budgets or services to meet the carers’ other support needs – and should do so, in a joint working approach, in my view.

Can people have ‘split’ packages now?

People have always been able to have split packages, ever since it was explained in Coughlan. A package of nursing care in a nursing home is a split package, as the NHS-funded nursing care element is the NHS’s contribution, and contractual liability, as principal. The Care Programme Approach has always actively encouraged seamless packages of health and social care for mental health clients. But the point about all of these situations is that this sort of patient is not getting CHC.

Split packages are for people who do not qualify. So, at the end of every ratification panel, MDT recommendations against CHC should be considered with regard to whether in any such case there are still going to have to be elements of health-related input, (in terms of health improvement or the prevention of health deterioration, say), which the NHS should fund.

For example, the council cannot lawfully buy registered nursing care in the community, as a principal. So the NHS must still consider the needs of people at home, either through commissioning adequate district nursing, or buying services through a nursing agency – or through reimbursing the local authority for what I would call ‘heavy-duty personal care’ with a health-related impact, via a grant under section 256 of the NHS Act 2006.

The framework discusses how to commission a split package, and the charging implications need to be considered carefully because a section 256 grant does not affect the fact that the person is in receipt of chargeable social services.

Belinda Schwehr, Care and Health Law 
Tel: 01252 725890
Email: belinda@careandhealthlaw.com
Website: www.SchwehrOnCARE.co.uk