NHS Continuing Healthcare: The primacy of the experts appointed to the Multi Disciplinary Team and the limited role for the CCG panel

As a public law barrister specialising in healthcare, I find that issues come along like “buses”.  I don’t do a case about an issue for months, then a whole series of cases all raise substantially the same issue at once.  The issue of the moment for me is the extent to which decisions made by a Multi-Disciplinary Team (MDT) which is conducting an assessment of an individual’s eligibility for NHS Continuing Healthcare (“CHC”) can be revised or revisited by a CCG “Assessor”, a CCG panel or even an NHS England appeal panel.

The decision-making processes required by the National Framework are reasonably straightforward.  The CCG appoints the members of the MDT.  Once appointed, those individuals have to work together to complete the assessment, set out their views on the needs of the individual in a completed Decision Support Tool (DST) document.  The MDT  also make a recommendation concerning the individual’s eligibility for CHC.

The CCG panel is required to take the final decision on whether the patient is eligible for CHC, but it is only entitled to depart from the recommendation made in the DST in “exceptional circumstances”.  That is a fairly narrow window, as anyone involved in an IFR process fully understands.   Even then, if the CCG panel has any concerns about the way in which the MDT has expressed its views, it is required to go back to the MDT to clarify the position. A decision to refuse an individual CHC where a positive recommendation has been made by the MDT should only be made after a further dialogue with the MDT.  The purpose of that dialogue is to enable the CCG panel to understand whether this is one of those rare cases with exceptional circumstances where they would be entitled to depart from a positive recommendation.

Accordingly, it is clear that the expertise in this decision-making process lies with the MDT. The CCG panel is required to accept the conclusions of the MDT assessment unless there are genuinely exceptional circumstances and even then only after a further dialogue with the MDT.  In particular, it is irrelevant whether the individuals who comprise the CCG panel would have reached the same conclusion as the MDT on the individual’s level of need in any of the care domains.  The National Framework makes it clear that the CCG panel is not entitled to substitute its views for the views of the MDT. The expertise in making the assessment lies with the MDT, not the members of the CCG panel.

All that seems reasonably straightforward.  What are the problems in practice?  Well, I have seen a series of recent cases where CCGs do not appear to have appreciated that they are not the primary decision maker concerning the individual’s level of need in any of the care domains.  In a variety of ways, the CCG is tearing up the MDT conclusions because the CCG panel members don’t think this is a case where the individual should be eligible for CHC.  I do not propose to identify any of the relevant CCGs involved in these cases or the patients, but I strongly suspect the problems are systemic rather than isolated to individual CCGs.

First, I have a case where the CCG appointed an “Assessor” to re-mark the conclusions of the MDT because the CCG thought the MDT were not being sufficiently “robust”.  There is, of course, nothing in the National Framework or in the decision-making process under Regulation 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”) which permits the CCG to appoint someone to treat the MDT assessment as if it was a piece of homework needing to be marked, with the CCG panel receiving amended version of the DST reflecting the views of the Assessor.  That seems to me to be a plainly unlawful process.

Secondly, I have seen a series of cases where a CCG has set up a team to review the findings of the MDT and, where the conclusions are not unanimous, this team has taken on the task of determining their own views about the individual’s level of need in each of the care domains.  This process also departs from the National Framework in a way that is not permissible.  It ignores the fact that the DST has its own internal arrangements for resolving differences of view between members of the MDT.  The rules of the DST make it clear that the members of the MDT should work together to try to reach a consensus but, if this is not possible, the higher score should be adopted.  Accordingly, a lack of unanimity amongst the members of the MDT does not prevent the proper completion of the DST.  It also does not give a CCG team any standing to rewrite the conclusions by substituting their own views for the views of the MDT.

Thirdly, CCG panels and even NHS England appeal panels appear to have thought it was appropriate to conduct a comprehensive re-evaluation of the individual’s needs in each care domain and, without paying any heed to the need to find exceptional circumstances, are effectively “re-scoring” the outcome of the MDT assessment.  Almost inevitably, this results in a lower level of assessed need and thus individuals are being refused CHC when the MDT recommended that they should be treated as being eligible.  There is absolutely nothing in the National Framework or the decision-making process under Regulation 21 of the 2012 Regulations which entitles a CCG panel to approach the decision-making process in this way.

The system set up under the National Framework involved a delicate balance between the interests of individuals, the interests of the CCG and the legitimate interests of local authorities (who are usually left to pick up the cost if CHC is denied).  That balance is reflected in the primary decision-making role which is given to the members of the MDT.  If the CCG does not agree with the conclusions of the MDT, then usually that is irrelevant.  The CCG start with those conclusions unless they can find exceptional reasons to depart from them.  There is only very limited scope for the CCG to turn down their recommendations.  The decision-making expertise in this decision-making process is held by independent professionals, not by those who have one eye on the CCG budget.

None of these cases may result in the CCG processes being examined by the High Court in a Judicial Review.  However, they may be indicative of a wider misunderstanding of the decision-making processes which CCGs are required to follow when making decisions about CHC eligibility.  If others have come across similar cases, I would be very interested to know.