By Rosalind Hughes, Founder, Just Caring Legal
It seems a new policy on NHS Continuing Healthcare eligibility assessments has snuck in recently under cover of Covid-19. Assessors from CCGs all over England are contacting individuals and their representatives by Zoom or telephone to ask for their input on their care needs. But then they are completing the actual assessment later – behind closed doors. This appears to be happening far and wide. And it has to stop. Just Caring Legal feels so passionately about this that we have written an open letter to all CCGs in England, pointing out that this new policy is against the spirit and the letter of the law and guidance they must follow.
It is unlawful to shut people out of their NHS Continuing Healthcare eligibility assessments
CCGs must by law have regard to the National Framework for NHS Continuing Healthcare in all their decision-making. And the National Framework says that all NHS Continuing Healthcare decision-making should be person-centred. This means placing the individual at the heart of the assessment and care-planning process. And it means ensuring the individual and/or their representative(s) are fully and directly involved. The National Framework does not require relatives to have a Lasting Power of Attorney to be a “representative”. This term includes any friend, unpaid carer or family member who is supporting the individual.
Digital eligibility assessments should still make it possible for people to fully participate
Covid-19 has not changed a thing in this regard. It is still possible to ensure the full and direct involvement the individual and/or their representative(s) via Zoom or Teams. We attend digital MDT panels all the time. It is perfectly feasible, given the right support, for families to fully participate in these. And it is the role of the NHS Continuing Healthcare coordinator to enable them to make that happen. They have a duty to organise the overall process in a manner that maximises the family’s ability to participate.
How should the NHS Continuing Healthcare eligibility assessment meeting involve individuals?
The MDT meets to consider the nature, intensity, complexity and unpredictability of care needs. The members of the panel then “score” the needs in 12 domains using a Decision Support Tool. This helps them to consider many different kinds of care needs in detail, providing a picture of total care needs on which to base their decision. But the National Framework is clear. The individual and/or representative(s) should be able to contribute their own views on their care needs to this process. And the MDT should give these views due weight alongside those of the professionals. It should allow the family to say whether they believe the MDT has accurately reflected their needs. And it should let them comment on the completed domains before they leave the assessment meeting. Do they agree with the domain levels selected? If not, why not? The MDT must accurately record their input in the DST document.
The National Framework does allow the MDT to discuss its recommendation in private following the completion of the DST. But it must communicate the outcome to the individual/representative(s) as soon as possible. Sadly, we know many families are made to wait until the CCG writes to them with the eligibility decision.
Have you been denied the chance to contribute fully to a DST?
If so, you are not alone. This is happening every day, up and down the country. But decisions based on such a clear abuse of process are usually inherently flawed and open to challenge. So please get in touch for a free initial assessment of your case.