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Selected Investigations Completed April - September 1999 > Part II, Case no. E.1321/97-98
Complaint against:
Herefordshire Health Authority
Complaint as put by Mrs Z
1. The account of the complaint provided by Mrs Z was that in August 1996 her mother, Mrs V, was admitted to Hereford General Hospital following a stroke. On 21 October, a continuing care assessment was carried out under the scoring system applied by Herefordshire Health Authority and Herefordshire Social Services Department (Social Services). In the assessment Mrs V scored 12, as a consequence of which her care was assessed as being the responsibility of the Health Authority. (Note: 14 points or more on a scale of 0-40 indicated Social Services care. 13 points or less indicated NHS care). On 23 October, Mrs V was transferred to Leominster Community Hospital for rehabilitation. A second assessment was carried out on 25 November, which again indicated that Mrs V's care should be the responsibility of the Health Authority. On that occasion, under a revised scoring system which the Health Authority and Social Services had introduced, Mrs V scored 13, with a mini-score of 6 for particular aspects of her assessment. (Note: under the new scoring system mini-scores were introduced for those scoring 13 points or less. When the mini-score was 7 or less NHS care was indicated, when it was 7.5 or more Social Services care was indicated). In a further assessment, on 30 January 1997, Mrs V again scored 13 but with a mini-score of 8. As a consequence of that, responsibility for her care was transferred to Social Services; and Mrs V was eventually transferred to a residential nursing home. Mrs Z wrote to the Health Authority on 5 March asking for the decision to transfer her mother from NHS care to be reviewed by the Health Authority's continuing care review panel (CCRP); but, on 15 April, the Health Authority's corporate affairs manager (the corporate affairs manager) refused that request. On 16 July, Mrs Z complained to the Health Authority's chief executive, through her local community health council (CHC), about the decision to refuse a CCRP; and the chief executive replied on 11 August, but Mrs Z remained dissatisfied. Maintaining that, under the NHS guidance, a CCRP should not have been refused unless Mrs V fell 'well outside the eligibility criteria', Mrs Z asked the Health Authority's convener for an independent review of her complaint under the National Health Service complaints procedure. On 21 September 1998, the convener refused that request.
2. The complaint investigated was that the Health Authority had unreasonably refused Mrs Z's request for a CCRP.
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Investigation
3. The statement of complaint for the investigation was issued on 27 November 1998. The comments of the Health Authority were obtained and relevant documents were examined. One of the Ombudsman's investigating staff took evidence from Mrs Z, an officer of the CHC (the CHC officer), the Health Authority's corporate affairs manager (the corporate affairs manager), and the independent lay person appointed by the Health Authority to chair CCRPs (the chair).
National guidance
4. In February 1995 the Department of Health published guidance HSG(95)8 entitled 'NHS responsibilities for meeting continuing health care needs'. The guidance set out a national framework of conditions which all health authorities were required to meet, in conjunction with local authorities, in drawing up local policies and eligibility criteria for the provision of continuing health care in their areas. The guidance also introduced arrangements to allow decisions taken about a patient's eligibility for continuing inpatient care to be reviewed by a CCRP.
5. Further guidance about the review procedure was published by the Department of Health in August 1995 in HSG(95)39 entitled 'Discharge from NHS inpatient care of people with continuing health or social care needs: arrangements for reviewing decisions on eligibility for NHS continuing inpatient care'. In a section entitled 'Scope and purpose of the review procedure', the further guidance describes the review procedure as:
'an additional safeguard for patients assessed as ready for discharge from NHS inpatient care who require ongoing support from health and/or social services, and who consider that the health authority's eligibility criteria for continuing inpatient care (whether in a hospital or in some other setting such as a nursing home) have not been correctly applied in their case.'
It goes on to say that the scope of the review procedure is:
'to check that proper procedures have been followed in reaching decisions about the need for NHS continuing inpatient care; and
'to ensure that the health authority's eligibility criteria for NHS continuing care are properly and consistently applied.'
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6. In a section entitled 'Review procedure' the further guidance says that 'Every effort should be made to address the concerns of patients and their families'; and a checklist of the issues which should be considered before the case is referred to a CCRP is appended. (Note: I have seen that the checklist includes 11 specific questions, under the headings 'Assessment of need', 'Information for the patient, his or her family and any carer', and 'Alternative care options'. The guidance continues:
'If, after all reasonable efforts, agreement cannot be reached, the patient, his or her family or any carer is entitled to ask the health authority .... to review the decision that the patient's needs do not meet the eligibility criteria for NHS continuing inpatient care. The normal expectation is that a health authority in reaching a view will seek advice from an independent panel. Before doing so it should ensure that;
- on the basis of the checklist .... all reasonable action has been taken to resolve the case informally;
- the issues raised by the patient relate to the application of the eligibility criteria.'
7. The further guidance goes on to explain that it is not necessary to hold a CCRP in all cases. It says:
'The health authority does have the right to decide in any individual case not to convene a panel. It is expected that such decisions will be confined to those cases where the patient falls well outside the eligibility criteria, or where the case is clearly not appropriate for the panel to consider .... Before taking a decision the authority should seek the advice of the chairman of the panel. In all cases where a decision not to convene a panel is made, the health authority should give the patient, his or her family or carer a full written explanation of the basis of its decision ....'
8. In describing the procedure to be followed for the 'Establishment and operation of review panels', the guidance says that 'the panel will require access to independent clinical advice which should take account of the range of medical, nursing and therapy needs involved in each case'. It says that:
'The role of the clinical advisers is to advise the panel on the original clinical judgements and on how those judgements relate to the health authority's eligibility criteria.'
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Local eligibility criteria
9. The Health Authority set out its eligibility criteria, from April 1996, in a 'Continuing Care Statement' prepared jointly with a neighbouring health authority and Hereford and Worcester County Council. The statement included an assessment procedure and scaling system from which the agency responsible for funding the care package could be determined. Central to this determination was an assessment check list which rated an individual's particular needs on a numerical scale of 0 to 40. The document stated that a score of 0 to 13 indicated a health service responsibility for the patient's continuing care; and that a score of 14 or over indicated a social services responsibility.
10. In a further document, in November 1996, the Health Authority and Hereford and Worcester County Council introduced the concept of an additional 'mini-score', to be obtained by adding together the scores of five particular items on the assessment check list. The document explained that the mini-score should be taken into account when a patient scored 13 or less in the full assessment. In such cases, if the mini-score totalled 7 or less the continuing care responsibility rested with the Health Authority. If it totalled 7.5 or more the Health Authority and Social Services were required to consider whether the patient had complex, intense or specialist needs; and, if not, the continuing care responsibility rested with Social Services.
Mrs V's assessments
11. I have seen that three assessment forms were completed for Mrs V. On 21 October 1996, her total score was 12. On 25 November she scored a total of 12 (not 13 as reported by Mrs Z (paragraph 1) with a mini-score of 6. On 30 January 1997 she scored a total of 13 with a mini-score of 8.
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Evidence of Mrs Z and the CHC officer
12. The Ombudsman's investigator interviewed Mrs Z and the CHC officer together. Mrs Z told him that because Mrs V had suffered a dislocation of her hip replacement she was a high risk patient who should, in her view, always be the responsibility of the Health Authority. The CHC officer said that it was her understanding that Mrs V needed continuing care and was unable to return home; but that the care that was needed could be provided in a suitable local nursing home.
13. Mrs Z said that she did not attend the continuing care assessment on 30 January, but had been surprised that it was done so soon after the previous one. Afterwards, the ward sister had told her that Mrs V had scored 13 points and that the outcome could go either way. Mrs Z had not known what that meant but, later, Social Services told her that they would be responsible for Mrs V's care. That had concerned Mrs Z, who had not wanted her mother's care to be determined by non-health care professionals. She was concerned, too, that because Social Services care was subject to means-testing, Mrs V might become liable to pay if her financial circumstances changed for the better. She told the investigator that she thought that the 30 January assessment had been prompted by the Health Authority's lack of funds. She said, too, that it was unsatisfactory that the 'mini-score assessment' had been introduced without any change to the basic assessment form; and that the changes in the procedure had not been adequately explained to her. The CHC officer said that the criteria had changed to such an extent as to make the process unfair; and to restrict severely entitlement to NHS funded care.
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14. In the circumstances, Mrs Z and the chief officer had asked for a CCRP. In her request, which she wrote to the corporate affairs manager on 5 March, Mrs Z said that she would like the panel to address two issues: the outcome of the 30 January assessment—for she questioned whether her mother's needs had changed sufficiently to account for the difference in scores between that assessment and the previous one; and the process of assessment, which she felt had been unduly influenced by the Health Authority's financial constraints. The CHC officer said that the 30 January assessment showed that Mrs V was a borderline case which, according to the guidance, should have entitled her to a CCRP. In the event, the corporate affairs manager had looked into the matter herself and, having talked to the chair, had invited Mrs Z to meet her to discuss her findings; but Mrs Z declined that offer and asked for a written response. She felt that the decision to refuse a CCRP had already been taken and that the meeting was designed to enable the corporate affairs manager to explain that decision, not to hear Mrs Z's views. Mrs Z and the CHC officer said that the corporate services manager and the chair had, in effect, acted as a panel; and had taken a decision that it was only proper for a CCRP to take. As the Health Authority had a vested interest in the outcome it was not surprising that a CCRP had been refused. The CHC officer said that by taking the place of a CCRP, the corporate services manager and the chair had denied Mrs Z the independent clinical advice, and expertise and knowledge, that additional panel members could be expected to bring to the review process.
Evidence of Health Authority and Chair
15. In a formal response to the statement of complaint at the beginning of the Ombudsman's investigation, the chief executive of the Health Authority confirmed that it had been the corporate affairs manager's and the chair's decision to refuse Mrs Z's request for a review; and he said that the corporate affairs manager had set out the reasons for that decision in a letter to Mrs Z on 15 April 1997. I have seen that in that letter the corporate affairs manager said that she regretted Mrs Z's decision to refuse a meeting (paragraph 14), for she would have preferred to discuss her investigation into Mrs V's continuing care assessments face to face; and she went on to describe the scope of the review procedure as set out in the Department of Health guidance (paragraph 5). She continued:
'Your request for a Panel to review your mother's assessment and whether the appropriate processes had been followed were discussed with [the chair] and it was decided that information would be gathered prior to deciding if it was appropriate to convene a panel.
'To this end, I have met with Social Services and Health Service staff who carried out the assessments and spoken with [a consultant geriatrician] who is responsible for Mrs V's care and with [a consultant physician] who is the lead clinician for continuing care.
'I have received copies of the assessments ....
'The information gathered has been discussed with [the chair] and a conclusion has been reached that:
-the proper procedures were followed in reaching decisions about the need for continuing in-patient care, and that
-'the Health Authority's eligibility criteria for NHS continuing in-patient care had been properly and consistently applied.
'A summary of the findings are attached (Note: the corporate affairs manager enclosed a detailed resume of the assessments which were done and the decisions taken with regard to Mrs V's continuing care in the light of those assessments.)
'The Guidance indicates that the Health Authority does have the right to decide in any individual case not to convene a Panel and it has been decided that it is not appropriate to convene a Panel as you requested as the correct procedures were followed.'
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16. The corporate affairs manager told the investigator that she had not been involved in setting the Health Authority's eligibility criteria for continuing care; but the guidance required an officer of the Health Authority to be responsible for the review procedure and she had taken on that role. She had not received any formal training for that, but she had familiarised herself with the guidance and with the Health Authority's assessment procedures. Mrs Z's request was the only CCRP request she had ever received. She had discussed the request with the chair, who had great experience of NHS panels and tribunals, and they had agreed that it was necessary to obtain all the relevant information before the request could be considered. She had, therefore, written to all those concerned with Mrs V's care, including Social Services. She had also sought a meeting with Mrs Z to clarify her concerns, and to explain the CCRP procedure, but Mrs Z declined the invitation. She told the investigator that a CCRP could have checked whether Mrs V's assessments were conducted in accordance with the local continuing care criteria, and whether they were conducted fairly; but that it could not question the criteria which had been agreed.
17. Once all the relevant information was to hand the corporate affairs manager had discussed the case in detail with the chair. They had adhered to the guidance, using the checklist (paragraph 6) to confirm that everything that needed to be considered had been considered. As the checklist identified those issues which needed to be addressed before a panel could be considered, they had concluded, on completing the process, that there was nothing further a CCRP could achieve. Their enquiries had confirmed that all necessary action had already been taken, and the correct assessment procedures followed. None of those they had consulted had disputed the assessment in any way; and Social Services had already agreed to accept financial responsibility for Mrs V's care.
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18. The corporate affairs manager said that the guidance was clear that the Health Authority had the right not to convene a CCRP; and she maintained that Mrs Z's request for a CCRP had been considered fairly. She denied that she and the chair had effectively conducted their own review panel by considering all the relevant information themselves; and she said that it had been necessary to seek all such information in order to reach an informed decision. Nor did she accept that Mrs V's assessment of 30 January was borderline. She said that although small numbers were involved, Mrs V's mini-score of 8 clearly put her within Social Services' responsibility.
19. The chair told the investigator that she had had considerable experience of NHS appeals panels; but that Mrs Z's request was the only CCRP request she had been asked to consider. Her understanding was that CCRPs were intended to deliver an independent judgment about whether continuing care assessment procedures had been correctly followed in individual cases. When the corporate affairs manager had approached her about Mrs Z's request they had agreed to bring together all the relevant information before considering the matter further. The chair had wanted to assure herself that all the possibilities had been considered; and to check that proper assessment procedures were followed. However, having established that all the points on the checklist had been properly addressed, she and the corporate affairs manager decided that there was no reason to hold a panel. She did not think a CCRP would have added further value or been able to consider any matters beyond those which she and the corporate affairs manager had already considered. Although the result of Mrs V's assessment had been borderline, the correct procedures were followed during the assessment process, and a CCRP was not appropriate. The chair said that she would have liked to have discussed her findings with Mrs Z, and that she had been disappointed that Mrs Z had not agreed to a meeting.
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Findings
20. Both the NHS and local authorities have responsibilities for arranging and funding services to meet peoples' needs for continuing care; and the Department of Health guidance referred to in paragraphs 4 to 8 above was specifically introduced to confirm and clarify the NHS's responsibilities in that respect. The guidance makes it clear that CCRPs are intended to be an additional safeguard for patients, and their families, who have concerns that eligibility criteria for continuing NHS inpatient care have not been correctly applied in their case. Mrs Z had such concerns and it is entirely understandable, therefore, that she should ask for a CCRP. She and the CHC officer also had broader concerns about what they saw as the Health Authority's restrictive eligibility criteria for continuing care but, as the corporate affairs manager has said, that is a matter of policy which could not have been considered by the CCRP.
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21. So, was the decision to refuse a CCRP reasonable? The corporate affairs manager and the chair have both said that they availed themselves of all the relevant information and sought the views of those directly involved in the assessment process. That, insofar as it was intended to enable them to reach an informed decision, seems a sensible approach. However, I do not accept that it was then appropriate for them to refuse a CCRP simply because they were satisfied that all the procedures had been correctly followed. The guidance clearly states that if all reasonable efforts fail to result in agreement with a patient or their family, the Health Authority would normally be expected to seek the views of a CCRP. It envisages that a CCRP will not be convened only if the patient falls well outside the eligibility criteria or where the case is very clearly not appropriate for the panel to consider. I do not consider that either of those exclusions applied in this case. In fact, I find it hard to understand how the results of Mrs V's assessment could be considered as anything other than on the borderline between Health Authority and Social Services responsibility. That being so, I consider that Mrs Z was entitled to have her mother's case reviewed by a fully empowered CCRP. Consideration by the corporate affairs manager and the chair was not an acceptable substitute, however thorough and objective that consideration was. Furthermore, I do not believe that the corporate affairs manager and the chair could address adequately the second aspect of the scope of the review procedure (paragraph 5) without the independent clinical advice which the guidance envisages a clinical adviser will bring to the CCRP. I uphold the complaint and recommend that arrangements are made to hold a CCRP at the earliest opportunity.
Conclusion
22. I have set out my findings in paragraphs 20 and 21. The Health Authority have agreed to implement my recommendation in paragraph 21; and they have asked me to convey to Mrs Z through my report—as I do—their apologies for the shortcomings I have identified.
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