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For some patients living with the consequences of suffering a brain injury, accessing a non-means tested package of care, support and accommodation arranged and funded solely by the NHS (NHS Continuing Healthcare) can be difficult.

Often patients and their families are left feeling in the dark because they are not provided with the information, advice and guidance required to fully understand the assessment process, nor what options may be available if a health body decides that a patient is not eligible. In some cases, the complexities of meeting a brain injury patient’s care needs may be wrongly marginalised leading to decisions of non-eligibility.

The purpose of this article is to examine NHS Continuing Healthcare in more detail.

What does the term ‘NHS Continuing Healthcare’ mean?

NHS Continuing Healthcare is a non-means tested complete package of ongoing care that is arranged and funded solely by the NHS where an adult, (aged 18+), has been assessed and found to have a ‘primary health need’ as a result of an injury, illness or disability.

How is NHS Continuing Healthcare assessed?

Once an individual has passed the screening stage, known as the Checklist Assessment, the existence of a ‘primary health need’ is determined by an evidence-based assessment process.

A Multi-Disciplinary Team meeting (“MDT”) made up of health and social care professionals, the individual (subject to mental capacity) and family representatives, must be convened to collectively complete a Decision Support Tool (“DST”).

The DST is divided into 12 broad areas of need, known as domains. The MDT use descriptors to determine whether an individual’s need in each domain is of either Priority, Severe, High, Moderate, Low or No level of need. Certain characteristics known as the key indicators, namely nature, intensity, complexity and unpredictability, and their impact on the care required to manage needs are used to determine whether the quality or quantity of care required is more than the lawful remit of a Local Authority.

To succeed, it must be demonstrated through the assessment process that the patient’s needs are complex, intense, or unpredictable to manage.

The MDT will issue an eligibility recommendation, which may require approval by a Panel.

What happens if the NHS refuses to award NHS Continuing Healthcare?

If a Clinical Commissioning Group (“CCG”) decides that a patient is not eligible for NHS Continuing Healthcare, the CCG may award either:

  1. The NHS-funded Nursing Contribution (“FNC”) whereby a set weekly rate of £165.56 will be paid directly to a provider to facilitate the provision of nursing care. This rate is subject to change. The remainder of any care fees payable will need to be self-funded unless the patient is eligible for means-tested social care support.
  2. A jointly funded care package which means the CCG and Local Authority will split the cost of care but the social care element is means-tested. Often this is awarded where the assessment process has identified the individual has some healthcare needs, but when considered in totality, these do not amount to a ‘primary health need’.

All of this can be very confusing. The key point to understand is that if the patient is not found eligible for a non-means tested, free package of care funded by the NHS, the patient is likely to be a self-funder unless the patient is eligible for means-tested social care support. In some cases, the patient may be a self-funder but may also have the benefit of the FNC or the NHS funded part of a jointly funded care package.

Can a refusal to award NHS Continuing Healthcare be appealed?

Yes. If a CCG refuses to award eligibility, a decision can be challenged by way of an appeal to the CCG. This first stage in the appeals process is often referred to as the Local Appeal or Local Resolution process. Should concerns regarding the eligibility decision remain unresolved upon conclusion of this process, the second stage is to escalate the dispute to NHS England to request an Independent Review Panel is convened.

NHS Continuing Healthcare and patients living with a brain injury

When considering eligibility for NHS Continuing Healthcare in a patient living with a brain injury, it is essential to bear in mind the following factors.

  1. Eligibility assessments should not take place until the patient’s condition is stable and an assessment of the patient’s needs is appropriate.

    Ideally, the CCG should not finalise the process until the patient’s treating doctors agree it is appropriate.

  2. Any assessment of need should take into account where the patient is in terms of their rehabilitation journey.

    It may be that in some cases it is not appropriate to finalise the assessment process until a patient has undergone further rehabilitation and therapeutic interventions. In such a situation, it is perfectly reasonable to request the CCG provides an interim funded package of care until it is possible and clinically appropriate for the CCG to finalise the assessment process and make an eligibility decision.

    In some cases, multiple MDT meetings may be required in order to ensure an accurate assessment process has been completed.

  3. It is essential that family members, key care staff and clinicians are invited to attend and participate in the MDT assessment to ensure the principles of a good-quality MDT are achieved.

    If it is not possible for a key member of the care team or a key clinician to attend the MDT in person, it is perfectly reasonable to request they provide written evidence in support of the assessment. Written evidence lodged in support must be appropriately documented on the DST.

  4. Thorough preparation before attending and participating in an MDT will make it much easier to present the case for eligibility.

    It is perfectly reasonable to request copies of clinical reports, medical or care records, or a statement in support from key care workers or treating doctors in advance to ensure that the MDT refer to key evidence in the DST.

  5. Often, in cases of patients living with a brain injury, the nature of a brain injury means it may be easier to demonstrate why a patient’s needs are complex to manage over and above the characteristics of intensity and unpredictability. Highlighting throughout any needs assessment the evidence which demonstrates that a patient has complex needs may strengthen the chances of a successful outcome.

This article has been produced by James Pantling-Skeet of Lester Aldridge

If you need advice about any of the issues discussed in this article, please contact the Community Care team at Lester Aldridge.

Brain Injury Group member firm Lester Aldridge have offices in Southampton, Bournemouth and London.

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