By Clive Powell
When discussing continuing care, the conversation often focuses on who is going to pay. For individuals and their family, disagreements with the NHS as to who pays can be addressed through procedures laid out within the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care, but for local authorities disagreeing with the NHS the position is less clear.
Generally, considering the sheer volume of cases for which a decision support tool – the mechanism to assess eligibility for continuing healthcare – is completed, inter-agency disagreement is rare. In most instances professionals are able to identify for themselves the evidence or information needed in order for them to come to an agreement; and, if not, they ought to be able to seek advice as to what is needed. Suppose however you have all the evidence but disagree on the outcome – what to do?
Questions councils must ask
The approach taken by some clinical commissioning groups of “we don’t joint fund” with local authorities, citing the “your either pregnant or you’re not”, approach to CHC is nonsense. The key cases of Grogan and Coughlan attest to that. For local authorities the question is perhaps in two parts, firstly, can you reasonably identify areas of healthcare which are clinically indicated that it would be unlawful for you to provide or secondly, can you identify a significant aspect(s) of care that it would be unreasonable for you to provide?
It would be unwise for me to suggest particular client groups or areas of care as definitive examples but you may want to consider individual care domains and the nature of the care being provided. Would you consider, for example, that cognitive behavioural therapy identified within the psychological and emotional domain of the continuing healthcare assessment to be a local authority responsibility? You may; you may not. The point is “identify and quantify”.
Where the dispute goes further than elements of care then local authorities and their NHS colleagues need to have an agreed way forward. Can I please suggest that if you are put in the position of reviewing a recommendation you do not blindly adopt the position of “Jane wouldn’t have made that recommendation without good reason so I’m supporting her position”? If Jane hasn’t set out that “good reason” that’s Jane’s problem not yours – you are professionally accountable for your own actions and decisions on the evidence and information before you.
All public bodies are under financial pressure and depending on the priorities of the day, it was ever thus. Positions can over time become entrenched particularly where high-cost packages are at issue and it takes courage to step away from the established position. When agencies actually sit down and analyse packages of care they all too often find the real dispute is not so much with the other side of the fence (local authority or NHS) but a consequence of poor commissioning or contract management with a provider who “always does it this way” or “always provides this as part of the package”. Person-centred care should mean just that – commission according to the needs of the client not the needs of the provider.
I said at the outset that inter-agency dispute resolution is not well defined where CHC is concerned. As a local authority you may feel one approach is to sit back and wait for the outcome of any challenge brought forward by or on behalf of the individual. As part of this benign approach you may signpost people towards local free-to-use advocacy services and encourage and support CCGs in having an independent robust local dispute resolutions process.
What please I urge you not to do is threaten each other with judicial review unless you can absolutely satisfy the court that you have tried everything else first. Why? Because the courts have said time and time again it is not good use of public money, you risk censure for doing so and even if you win the court may well refuse to award costs in your favour.
Consideration is being given to what steps local authorities and their CCG counterparts should have in place to resolve disagreements. Whilst the general approach is to escalate through layers of management these steps need to be time-bound and an agreement in place as to what should follow if necessary.
Agree on next steps
Whilst the idea of using NHS England independent review panels was not taken forward when the framework was last reviewed the underlying principle is still valid. See to agree with each other what the next step is to be – do you want to establish the equivalent of an independent review panel and if you do, bearing in mind time and money, do you agree it is a desktop review of the written evidence or do you feel that agencies should have a right to attend as a family may at an IRP?
A final word on historic cases. All too often positions in these cases are entrenched and the evidence is at best inconclusive and patchy. Sometimes unless the evidence is absolutely conclusive, you just have to learn what you can from it, draw a line and go forward.
Clive Powell has more than twelve years experience of chairing NHS continuing healthcare appeal and review panels. He has chaired inter-agency CHC arbitration and best interests panels and when away from the field of CHC is often engaged in chairing professional regulation and fitness to practice hearings.