Clare English, NHS Continuing Healthcare specialist and Community Care lawyer, answers questions from Professional Deputies and other clients seeking the secret to our teams’ success in winning NHS Continuing Healthcare (NHS CHC) appeals
It is important that one or more of the four key primary healthcare indicators is met: Nature, Intensity, Complexity or Unpredictability.
The structure adopted at local Clinical Commissioning Group (CCG) or NHS England Continuing Healthcare Appeal, Resolution or Review Panels is to look first at any procedural points; then the 12 healthcare domains; and finally the four key indicators of Nature, Intensity, and Complexity & Unpredictability.
Our team often finds that many people focus heavily upon procedural points – what they feel was inaccurate or what went wrong in the NHS CHC assessment and decision making process. The Panels do have a scrutinising role and they make comments in their reports about poor process. However, an NHS CHC appeal based mainly or only on procedural failings and breaches of the National Framework process will rarely, if ever, result in an NHS CHC award. From a legal perspective, whether one ‘wins’ an NHS CHC case or not comes down to satisfying the Primary Healthcare need test.
We also find that many clients focus on increasing the care domain scores in the belief that this will secure NHS CHC eligibility – for example, arguing that the moderate score in one domain should have been high or severe. This can be a challenge. The score in any one care domain may be wrong, but sometimes there isn’t sufficient good evidence to justify the higher scores. Eligibility for NHS CHC is not an exact mechanical test where if you get a certain number or level of scores this means the NHS will fully fund your care. The Decision Support Tool (DST) is a method of capturing evidence but in the end it all comes back to the primary healthcare need test.
In addition, many people incorrectly focus on their client’s or relative’s medical diagnosis rather than the health care needs that result from the condition.
If the NHS CHC Nurse Assessor has interpreted the care domains too strictly, or inaccurately, we will make that argument as part of a comprehensive appeal or review about the totality of the individual’s healthcare needs. However, we also try to interweave the aspects of the four key primary healthcare need indicators into the evidence we are presenting for each care domain.
We only advise clients to proceed to a local appeal or NHS England IRP stage if we believe their case has a good prospect of success. We believe that our client’s NHS CHC appeals succeed because we focus on the primary healthcare needs test as opposed to procedural points or simply raising domain scores.
NHS CHC teams often use stock phrases such as “the individual’s needs are routine” or “the management of needs comes within standard care planning”. Points such as this can be challenged on a number of grounds and again it comes back to the primary healthcare need test. You don’t need to be a medical expert but you do need to understand the four key indicators.
We also find that CCGs can be caught up on focusing on the care domains descriptors rather than a person’s overall healthcare needs. We believe that appeal and review panels appreciate the fact that we focus on the totality of a person’s needs so that the panel can make the right decision.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021