Avoid threats and evidence your decisions – how to resolve continuing healthcare disputes with the NHS

Amid the lack of clarity about handling continuing care disputes between councils and NHS partners, dispute resolution specialist Clive Powell offers some ways forward

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”.

Professional accountability

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.

Entrenched positions

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.

No threats

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.  

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5 Responses to Avoid threats and evidence your decisions – how to resolve continuing healthcare disputes with the NHS

  1. Stephen Squires October 14, 2015 at 12:02 pm #

    Do not lose sight of the fact that the actual care or treatment a patient requires or receives cannot determine the right to receive that care ‘free at the point of need regardless of the ability to pay’
    That right is the founding principle of the Health Act and NHS constitution and is a statutory right of every resident British citizen. The ONLY qualification required to receive NHS funded care is that the patient has a primary health need (an illness disability or injury) and all care needs which arise as a consequence are still health needs and remain the sole responsibility of the NHS.
    Handing over patients to social services is simply a disgraceful tactic so that they can be forced to pay for their own care because social services then unlawfully impose the National Assistance act.
    TELL any review panel that this is a matter of law, not medical opinion and clinicians cannot arbitrate questions of law. Add that you will refer any adverse decision to the Ombudsman and that you are prepared to take legal action against panel members both collectively and individually where their unlawful decision results in financial loss. Steve (Founder, NHS Continuing Care Campaign)

  2. Victoria Coker October 14, 2015 at 1:59 pm #

    I totally agree with Clive Powell.
    Also other areas to consider are where the service users are waiting for the outcomes of whether the CHC would be approved or not. Also the stress that the families/carers are undergoing when waiting for the outcomes because in some cases the services users themselves might be critically ill.

  3. Neil Clarke October 16, 2015 at 12:04 am #

    Clive Powell makes a fundamental error in confusing clinical and medical needs with health need. The criteria for CHC funding in law is that there is a primary health need. Successive governments in England have procrastinated on this issue, and encouraged the NHS to cost shunt to patients and local authorities to save money. Ask yourself two simple questions – would any sensible social worker place someone in a nursing home if the person didn’t need that level of care? Would the person on the proverbial Neasden bus not think that people go into nursing homes because they have a “primary health need”?

    It is very difficult for social workers to effectively challenge CHC decisions – particularly if the patient/family is not objecting. The system is designed so that social workers can support decisions, but have no real right of veto – the decision ultimately is with the health authority. Local authorities can decline to provide care on the basis (as in Coughlan) that the patient’s health needs are more than incidental or ancillary to their need for social care. But of course this is only really effective when the patient is in hospital – at which point the social worker of course will be accused of bed blocking!!

  4. Stephen Squires October 30, 2015 at 1:16 pm #

    This article is total nonsense as it incorrectly assumes that the right to NHS funded care is based on the nature of the care required or provided. It isn’t ! Where there is illness, disability or injury which is a primary health need then the NHS is responsible for the entire care package and is no business of social services. However the NHS shunt care costs on to social services who then invoke the National Assistance Act to force the patient to pay or, where they cannot pay local council taxpayers pick up the bill, thus saving the NHS a great deal of money.
    The NHS apply completely unlawful means such as their ‘decision support tool’ to justify their refusal to pay. In fact there is no reason why Social Services need be involved as they can simply invoke their own Dispute Resolution Procedure with the NHS and if they try to force patients or their relatives to pay there are appeal procedures available right up to the Ombudsman. Also relatives cannot be made to pay as the ‘liable Relatives Act’ was repealed years ago! Steve.

  5. Shirley Buckley November 5, 2015 at 9:48 am #

    My son’s LA and the CCG have been fighting his funding since 2007. He has a primary health need LOennox Gastaut syndrome EPILEPSY. He is in a residential care home in Wales that costs £24oo a week, and the LA are taking £80 a week from him towards these fees. The LA over ruled my EPA and are now the appointee. The solicitor I am paying will not take this to judicial review. What do I do??????