The National Health Service (NHS) to some is one of the greatest healthcare systems in the world, providing free universal healthcare to people ordinarily resident in the UK. The NHS is funded largely by the general taxation system.
The NHS operates a continuing health package available to persons over 18 deemed to have a primary health need. This package is explained in detail below with the legal framework set out below.
The Legal Framework: NHS Continuing Healthcare
NHS Continuing Healthcare sometimes referred to as CHC is a care package that is paid for entirely by the NHS. How the CHC works is described in the National Framework for Continuing Healthcare, which is written by the Department for Health. The National Framework for Continuing Healthcare provides guidance and sets out the principles for CHC and the requirements for eligibility in the booklet. CHC is provided to individuals over 18 who require assistance to meet the needs that have arisen as a result of disability, accident or illness. CHC is a package for people with significant ongoing healthcare needs. There are no limits on the settings in which CHC support may be offered and it is available for those who are:
- In a care home
- Receiving full-time care at home
The terms ‘continuing care’, ‘NHS continuing healthcare’ or ‘primary health need’ are not defined under the primary legislation. It should be noted that under Section 1 of the National Health Service Act 2006 (as amended by the Health and Social Care Act 2012) it the duty of the Secretary of State to continue to promote in England the continuation of a comprehensive health service designed to secure improvement,
a) in the physical and mental health of the people of England;
b) in the prevention, diagnosis of illness
What this means is that there remains a duty to ensure good health to individuals and to enable persons to improve their health care should they so require to. Moreover, in the context of CHC, the package should be utilised to secure the improvement of individuals continuing health care problems.
In order to find out whether an individual may be eligible for CHC, it is necessary to complete Stage 1 and Stage 2 of the process, the first being a checklist and the next being an assessment. Stage 1 will be used to determine whether it is necessary to move on to Stage 2, it should be noted that some people may not move on to Stage 2. Stage 2 is a complete assessment of the individual’s needs. For the process to begin, the individual must provide informed consent for the CHC process to occur and for their personal information to be shared with the health and social case workers involved.
What is informed consent?
Informed consent is where an individual must be provided with all the information of what the treatment involves, a full understanding is crucial. The individual must be aware of all the possible risks and benefits. It is vital that the individual is clear of what CHC consists of and the risks, for example, whilst the NHS will be responsible and pay for the individuals care and support, they may also loose some welfare benefits too.
As with any medical treatment, if there are any doubts about whether the individual lacks capacity, then under the Mental Capacity Act will be used to assess so. Section 2(1) provides that ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ Including but not limited to those with dementia, severe learning difficulty, a brain injury.
If an individual is unable to provide informed consent, then a health or social worker will normally be the decision maker. The legislation provides that where an individual lacks the mental capacity to give or refuse consent to the use of the Checklist, then the decision should be made in the best interests of the person, taking the individual’s prior views into account when deciding whether to proceed or not with assessing the individual’s eligibility for CHC.
Who assesses the individual’s eligibility?
NHS guidelines and the Standing Rules Regulations provide that local Clinical Commissioning Groups (CCG) must assess anyone who appears to be potentially eligible for CHC.
Eligibility for NHS continuing healthcare depends on the individuals assessed needs, and not on any particular diagnosis or condition.
The legislation provides assistance in deciding which treatment and other health services can be provided under the Act, the Secretary of State coined the concept that those assessed to have a ‘primary health care’ need are eligible for CHC. The NHS is responsible for providing all of the individuals assessed health and social needs, including accommodation, help at home, help with travelling, help with a job or other things to do in the day, help with social activities and assistance to look after someone else.
The legislation provides that when assessing the individual’s eligibility to receive CHC, that a clear, reasoned decision, based on evidence of needs from a comprehensive assessment is taken into consideration.
The assessment process
There are two stages in assessing the individual’s needs; Step 1 – The Initial Screening (Assessing general health and care needs with a simple checklist) and Step 2- The Assessment (If the initial screening displays that the individual might be able to get free CHC, then another assessment will be carried out, typically carried out by a team of two or more health and social care professionals, they will write a more detailed checklist on the health and care needs).
If the individual doesn’t agree with the assessment then the individual must ask the local CCG, Health Board or Health and Social Care Trust for a review of their decision in writing within six months of the notification of ineligibility.
An appeal may also be possible if the individual has already been paying for care home fees and may have been eligible to receive NHS funding. The individual must speak to their social worker or health practitioner and ask for a retrospective assessment and if no resolve then within 6 months a request to the Independent Review Panel can be lodged. In the eventuality of no resolve then the individual may ask for their complaint to be determined by the Parliamentary Health Service Ombudsman.
How to appeal a CHC decision
Where an individual may feel that the decision that has been reached by the NHS panel is unsatisfactory, then the decision may be appealed. The appeals process differs depending on whether the individual was assessed by a checklist assessment or by way of a full assessment in the form of the Decision Support Tool (DST).
This process will be explained below:
Initial Checklist Assessment
Whilst it is not possible to appeal the outcome of the initial checklist, there remains a possibility to request that another checklist is undertaken by asking the CCG to reconsider its decision, this must be made within 12 months of the individual being informed of the decision.
Where the CCG does not alter their decision, a right remains to access the NHS complaint procedure. This involves:
- A written complaint to CCG detailing reasons why you feel entitled to a full assessment with evidence included.
- If the CCG’s response is unsatisfactory, the individual may refer to their complaint to the Parliamentary and Health Service Ombudsman.
Decision Support Tool
If the checklist outcome was positive, a full assessment will be undertaken. This is called a Decision Support Tool (DST). Although where the DST assessment then comes back negative after it has been reassessed there remains a right to access the NHS complaint procedure. This process involves:
- Sending a written complaint to CCG with the reasons for appealing. Evidence must also be provided.
- If the appealed decision is a negative one, then a further appeal may be lodged requesting that the Independent Review Panel (IRP) is held, again this must be within 6 months of the CCG’s decision being communicated to the individual.
What are the challenging decisions facing NHS Continuing Healthcare?
Unfortunately, there are challenging decisions facing NHS Continuing Healthcare, these exist because the test for eligibility is set pretty high and is quite stringent. Whilst someone may have a pre-existing for example, dementia, it is wrong to assume that a diagnosis alone may make the individual eligible for NHS Continuing Healthcare.
It is estimated that with around 40% of Britain’s 440,000 care home residents self-funding their care, many of those could be wrongly paying wrong care fees and entitled to free NHS Continuing Healthcare. If you believe that you or a loved one are paying fees and may indeed be entitled to free healthcare, it is important to contact a solicitor to recover some of these fees.
Moreover, whilst someone may be found eligible to receive care at home or in a residential home, if the individual is assessed to be eligible for NHS Continuing Healthcare, this may mean they have to be moved into a nursing care setting to receive the funding.
In conclusion, an individual must be assessed based on the criteria provided in the National Framework. Eligibility may be determined by taking into account all of the patient’s assessed needs. Where you believe that a loved one may require continuing healthcare, it is necessary to visit the NHS continuing healthcare page. Should you require assistance lodging a formal appeal, you should contact a solicitor for advice and help.
Bibliography and further reading: