What is the right approach to a dispute…

In recent days I have been working with a CCG to resolve the difficult problems about how to set up a proper dispute resolution process between the CCG and a local authority to resolve disputes about a person’s entitlement to NHS Continuing Healthcare (“CHC”). The problem, in summary, is that CCGs are appointed as statutory decision makers to decide a person’s eligibility for CHC. In doing so, they are required to follow a decision making process under National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”). The primary test is whether the person has a “primary health need”: see Regulation 21. However the precise meaning of a “primary health need” is somewhat elusive.

Paragraph 4 of the National Framework explains that a primary health need is:

“.. a concept developed by the Secretary of State to assist in determining when the NHS is responsible for providing for all of the individual’s assessed health and associated social care needs

This concept but it is perhaps best defined at paragraph 55 of the National Framework as follows:

“An individual has a primary health need if, having taken account of all their needs (following completion of the Decision Support Tool), it can be said that the main aspects or majority part of the care they require is focused on addressing and/or preventing health needs. Having a primary health need is not about the reason why an individual requires care or support, nor is it based on their diagnosis; it is about the level and type of their overall actual day-to-day care needs taken in their totality”

Hence, the real test is whether the care a person needs is focused on addressing or preventing “health needs” as opposed to meeting social care needs. The outcome of the Decision Support Tool is required to “inform” this decision but, by definition, does not predicate an outcome.

However, it is clear that the decision maker in the application of this elusive test is the CCG. Whilst the local authority is a statutory consultee (see Regulation 22), the 2012 Regulations do not set up the process as one of joint decision making. The decision as to whether a patient falls on one side of the line or the other is solely an administrative decision for the CCG, as the Court of Appeal confirmed in St Helens Borough Council v Manchester Primary Care Trust & Anor [2008] EWCA Civ 931. However, both the CCG and the local authority have a financial interest in the outcome of that decision because it can result in one or other public body incurring annual costs of hundreds of thousands of pounds, adding up to millions over the lifetime of a patient. But, in its wisdom, parliament has decided that these decisions should be taken by the CCG alone, with the local authority solely as a consultee.

Patients have the right to appeal a case to an NHS England panel which is independent of the CCG. But a local authority has no such right. Instead, Regulation 22(2) of the 2012 Regulations provides:

“(2) Where there is a dispute between a relevant body and the relevant social services authority about—

1. a decision as to eligibility for NHS Continuing Healthcare; or
2. where a person is not eligible for NHS Continuing Healthcare, the contribution of a relevant body or social services authority to a joint package of care for that person,

the relevant body must, having regard to the National Framework, agree a dispute resolution procedure with the relevant social services authority, and resolve the disagreement in accordance with that procedure”

The National Framework suggests that “Whatever disputes process is selected, it is important that it should not simply be a forum for further discussion but includes an identified mechanism for final resolution, such as referring the case to another CCG and LA and agreeing to accept their recommendation”: see Annex E.

The dispute resolution process between a CCG and a local authority can only logically be engaged after a CCG panel has made an eligibility decision. Any disagreement between Multi-Disciplinary Team (“MDT”) members should not be treated as a good ground for invoking a dispute resolution process because the decision making processes under the 2012 Regulations and the National Framework can take account of contrasting views between MDT panel members, all of which can be reflected in a final report to the CCG panel. Thus any such contrasting views between MDT should not constitute a “dispute” between the Council and the CCG.

One difficult question is, once the decision is made, the question what grounds should be advanced by the local authority to challenge the decision. There are two broad possibilities. First, a local authority could be entitled to challenge the decision simply on the grounds that, if the local authority had been the decision maker, it would have reached a different discretionary decision. Secondly, a local authority should be required to accept that discretionary decision making is given to the CCG and only be entitled to challenge a decision if either (a) the CCG has failed to follow a proper process in making the decision or (b) the decision is one that the local authority considers is outside the range of reasonable clinical judgements that a CCG could make.

Logically, given that the statutory scheme gives discretionary decision making to the CCG, the second must be the right approach. Where a CHC decision has been made after a proper process and involves the valid exercise of clinical judgement by professionals nominated by the CCG to take the decision, it is hard to see why a local authority should have the right to insist the case is referred to a different CCG for the re-exercise of that clinical judgement, in the hope that a different set of clinicians will reach a different decision. Further, if clinicians employed by a different CCG reached a different decision (both being potentially entirely valid decisions on the evidence) the CCG would be required to give effect to a decision with which it disagreed. It would thus, in effect, be required to divert money from other priorities to supporting a patient who the CCG did not believe should be eligible for CHC. That raises a series of potentially difficult legal issues because the exercise of discretionary decision making is given to the CCG, and it is strongly arguable that the CCG should not put itself in a position where it has a discretionary decision imposed on it with which it disagrees.

The answer to these dilemmas could be that any Dispute Resolution Process should respect the fact that the statutory scheme gives the local authority a role as a consultee but gives discretionary decision making solely to the CCG, and thus the local authority can dispute that a proper process was followed or could dispute that professionals could reach an adverse decision on CHC eligibility on the evidence that was before a CCG panel. However, the local authority should not raise a dispute in a case which involved a genuine difference of clinical judgements about whether a person did or did not have a primary health need.

If that approach was taken, the outcome of the dispute process could replicate the arrangements under an Individual Funding Arrangement Policy, namely that:

The ambit of the dispute is confined to whether the CCG properly followed the procedure and/or reached a discretionary decision that was reasonably open to the CCG panel on the evidence; and
The outcome of a successful appeal would be to refer the matter back to the CCG panel to go through the decision making process again as opposed to having a decision imposed on a CCG with which the CCG potentially disagrees.

Such an approach would properly reflect the roles given the CCG and the local authority in the statutory scheme.

David Lock QC