If your relative has passed the initial Checklist stage and is awaiting their full assessment for NHS Continuing Healthcare (CHC), they will be invited to a Multi-Disciplinary Team Meeting (MDT) which will consider their eligibility for CHC Funding – i.e. fully-funded care paid for by the NHS.
Why: The MDT assessors appointed by the NHS and Local Authority have to determine whether the patient has a ‘primary health need’ ‘i.e., the main reason for care is due to healthcare needs – which are payable in full by the NHS – as opposed to social care needs, which are paid by either the individual or the local authority, subject to means-testing.
The establishment of a primary healthcare need is therefore critical as to which side of this dividing line the patient falls and, ultimately, who then pays for their care.
The Multi-Disciplinary Team Meeting
Who: The MDT should consist of at least two professionals from the respective authorities; typically, one healthcare and one social care professional. The MDT should be familiar with the patient’s health and social care needs, have had recent involvement in their treatment or care, have the necessary skills and knowledge to carry out the assessment, and, of course, be familiar with the National Framework for NHS Continuing Healthcare and its guidance.
Tip #1: Make sure you are notified of the MDT in good time.
Tip #2: Remember, you can get advocacy support, too. You don’t have to struggle on alone!
When: The MDT assessment process should be completed within 28 calendar days after the NHS Integrated Care Board receives the positive Checklist – the preliminary screening tool used to determine whether the patient requires full assessment by an MDT.
How: The MDT assessors will complete their assessment using the standard Decision Support Tool (DST).
The Decision Support Tool
The DST sets out 12 Care Domains, namely: 1. Breathing 2. Nutrition 3. Continence 4. Skin Integrity 5. Mobility 6. Communication 7. Psychological & Emotional needs 8. Cognition 9. Behaviour 10. Drug therapies and medication 11. Altered states of consciousness 12. Other significant care needs.
Each Care Domain is broken down into “levels of need” which help to build an overall picture of the quality and quantity of patient’s health and social care needs. The levels of need, and the Four Key Characteristics (Nature, Intensity, Complexity, Unpredictability) guide the MDT in concluding whether the primary need is for healthcare; i.e., the person is eligible for CHC Funding.
In reaching its decision, the MDT will usually consider various sources of information, such as available care home and GP records, in conjunction with its own assessment of the patient.
However, the period of evidence now being considered by some ICBs has been reduced substantially from three months to just one month. Arguably, this presents a much more limited picture of the patient’s needs, often favouring the NHS, and leading to a negative outcome for CHC eligibility.
Where: The assessment process is intended to be ‘person centric’, i.e., putting the patient at the core of the process. As such, they and their family and/or representatives should also be included in the CHC assessment process.
The MDT assessment will therefore usually take place where the patient currently resides e.g., at their home, care home or other care facility, to ensure that they are actively engaged in the process.
What: The MDT assessors will complete the DST and, weighing up all the evidence, conclude with their recommendation as to whether the patient, in their subjective opinion, meets the criteria for CHC Funding.
If, at the conclusion of the assessment, the MDT assessors indicate that they will be making a recommendation of eligibility, the family may rightly feel relieved and quite pleased with their achievement. This is no mean feat. They have prevailed and won a much sought-after victory – to get NHS free-funded care to cover all their relative’s care fees (including accommodation, if in a care facility). This desired outcome could save a potential fortune in care fees.
However, do not be too complacent and get your hopes up prematurely, as you are not over the finishing line just yet! This is just a recommendation and there are more hurdles to overcome before CHC Funding is actually awarded. Read on…
Next: The DST containing the MDT assessors’ recommendation will then be submitted to the NHS Integrated Care Board (ICB) for review and ratification, i.e., approval. The ICB will consider the MDT’s rationale and the evidence provided in support. Ordinarily, the MDT’s recommendation as to eligibility should stand and be accepted by the ICB – for better or worse (depending on which side of the fence you sit).
Timescale: It is expected that the ICB will usually respond to the MDT’s recommendation within 2 working days.
If the outcome is positive, the patient will be awarded CHC Funding; if negative, they will not.
Important! Paragraph 173 of The National Framework for NHS Continuing Healthcare confirms that:
“The recommendation should then be presented to the ICB, who SHOULD accept this, except in exceptional circumstances.”
That makes sense. After all, the ICB’s appointed assessors have seen the patient in person, hopefully reviewed the relevant records, met with the patient’s family (and/or their representatives), and are, therefore, best placed to make the call as to CHC eligibility.
Common examples of “exceptional circumstances” which permit the ICB to reject the MDT’s recommendation, might include: (a) where it is obvious that the assessors have erred in their assessment; (b) there are significant gaps in the evidence to support the recommendation; (c) the DST is incomplete (e.g., there is no recommendation); or (d) there is inconsistency or a mismatch between the evidence in the DST and the recommendation submitted.
Note: the NHS National Framework uses the ‘should’ and not ‘must’ follow the MDT’s recommendation. Therefore, ICBs are not mandated to accept the MDT’s recommendation and are at liberty to impose their own contrary view.
Beware! We have come across some perverse decisions where the MDT has agreed the patient clearly meets the criteria for CHC Funding, but the ICB has unilaterally rejected its recommendation. Conversely, it may not come as a surprise that the opposite scenario rarely happens i.e., the MDT finds the patient ineligible for CHC but the ICB rejects this and awards CHC funding!
The Gossip case:
ICBs have recently been gifted a trump card to play in the event they wish to overturn an MDT’s positive recommendation for CHC Funding, following the High Court decision in the case of `R (on the application of David Gossip) vs NHS Surrey Downs Clinical Commissioning Group.
- Mr Gossip suffered a catastrophic life-changing spinal injury with multiple other complications whilst playing rugby in 1984.
- The MDT completed its DST and recommended that he WAS eligible for CHC.
- The MDT’s recommendation was sent to the ICB for ratification but the ratification Panel determined that he was NOT eligible for CHC Funding, on the grounds of insufficient evidence.
- A further DST was completed which concluded Mr. Gossip was NOT eligible for CHC.
- The matter was appealed to NHS England, and an Independent Review Panel agreed he did NOT meet the eligibility criteria for CHC Funding.
- Mr Gossip then took the matter to Judicial Review (which was ultimately not granted).
- The Judge reasoned that, when determining eligibility for CHC, the ICB is the ultimate and sole decision-maker.
This decision effectively augments the NHS National Framework and reinforces the position that the ICB have the final word on eligibility, not the MDT.
Negative outcome: So, what happens if the MDT assessors are clear in their recommendation that the patient IS entitled to CHC Funding, but that recommendation gets rejected by the ICB?
Well, firstly, the patient will then have to look to fund their own ongoing care needs privately, i.e., self-fund, which can be hugely expensive – typically, many thousands of pounds a month – eroding or even wiping out hard earned savings – and often forcing patients into selling their home to fund their care.
Secondly, if you disagree with the decision you will have to lodge an appeal within 6 months to NHS Local Resolution. However, this is effectively referring the matter back to the same ICB team who have just rejected your relative’s funding! So, you’ll now face an even bigger uphill battle to overturn their negative decision.
If you remain dissatisfied, then you must appeal that decision.
Look out for our next blog, when we consider the appeal process and common pitfalls.
Whilst the guidance in the NHS National Framework makes it clear the MDT recommendation should be accepted and ratified in all but exceptional circumstances, the Gossip case reinforces the position that the ICB retains control and has the final say.
That is why we warned earlier not to get too excited by a positive MDT recommendation and count your chickens prematurely, as there is still scope for it to be ignored and rejected when it goes to the ICB for final approval!
For further reading, here’s a selection of blogs around the subject which you will find helpful:
If you’ve had a positive MDT recommendation overturned by the ICB, leave a comment below and share your experience to help others in a similar situation.