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continuing healthcare – a new framework, but some same old problems…

17 October 2018

Since 1 October 2018, CCGs have been required to adopt a new National Framework for NHS Continuing Healthcare (CHC) and NHS-funded Nursing Care (published on 1 March 2018), replacing the previous 2012 version. 

There are some significant changes – set out below – but fundamentally the basic principle is the same: that establishing a “primary health need” (whatever that means!) will entitle a patient to a fully NHS funded care package (ie free at the point of delivery) rather than (means tested) social care. With such consequences and – still – more heat than light around the precise definition of “primary health need”, we can expect disputes and controversy around this to continue. 

The new Framework:-

  • reflects the definition of social care in the Care Act 2014 (though not in any way making the line between health and social care needs any easier to discern)
  • says “it is preferable for eligibility for CHC to be considered after discharge” (a change of emphasis from saying that assessment can take place either before or after discharge, in 2012)
  • changes the tone of the reviews at 3 months and 12 months to greater emphasis on reviewing the needs and care package than (re)assessing CHC eligibility. “It is expected that in the majority of cases there will be no need to reassess for eligibility”
  • clarifies the make-up of the multidisciplinary team (though this only repeats what was already in the DST form in 2012)
  • tightens the leeway for a CCG to refuse an MDT recommendation based on a DST – Only in exceptional circumstances, and for clearly articulated reasons, should the multidisciplinary team’s recommendation not be followed” – and makes clear that a CCG remains responsible, even where a CHC function is outsourced to a CSU
  • adds some extra guidance on capacity, consent and making best interests decisions in this context; and
  • on dispute resolution, sets out that there should be a two-step process, with referral to an independent panel only after an attempt at local, collaborative resolution.

The DST itself, fast track tool and checklist all have only minor changes, such as the re-ordering of the sequence of the care domains. Some more guidance is given about the circumstances in which a checklist need not be completed.

On some familiar, often controversial issues there is little progress. For instance there is a passage dealing with top ups in which it is said that “NHS care is free at the point of delivery. The funding provided by CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore it is not permissible for individuals to be asked to make any payments towards meeting their assessed needs”. But we can still expect this to cause difficulty in practice, and it is not materially different to the 2012 Framework. 

Two particular points may be of interest, though:

  • Given the developments in the case law since the 2012 Framework, we now have a passage dealing explicitly with the issue of deprivation of liberty in the community in a CHC package, making it clear that the onus is on the commissioning CCG to take the case to the Court of Protection for the necessary authorization (since this is outside the scope of DoLS). This simply reflects, rather than changes, the legal position, of course. 
  • Finally, there is a subtle (and perhaps significant) change in the definition of continuing healthcare itself. In 2018, this is put as care, arranged and funded solely by the NHS “to meet health and associated social care needs …” (at page 7, emphasis added). In 2012 the definition referred to meeting “all the individual’s assessed health and social care needs” (though in fact that 2012 phrasing is still used in the definitions section at the end of the 2018 Framework, page 149, perhaps as an oversight). The intended consequence of this change is not spelt out, but at face value it does seem to increase the leeway to identify elements of social care needs which need not be funded by the NHS because they are not “associated with” the health needs. No doubt this will also offer fertile ground for disputes between local authorities, CCGs and patients / families, as we try to pick the bones out of that. 

If you would like to discuss how to work safely and rigorously within the new Framework in practice, we would be delighted to hear from you. 

We are delighted of offer CCGs a review of their CHC policy, in light of the 2018 Framework, for a fixed fee of £500 + VAT. 

Written by Ben Troke and Rebecca Fitzpatrick

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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