The Department for Health and Social Care has published the National Framework for NHS continuing healthcare and NHS-funded nursing care (the National Framework). This will come into force on 1 October 2018. Updated national tools, such as the decision support tool (DST) have also been released to accompany the guidance.

Through its new structure and style, the new National Framework is intended to provide greater clarity to CCGs, local authorities and individual practitioners. Legislative changes since the 2012 National Framework are reflected, primarily those of the Care Act 2014.

The main changes relate to the following areas:

Supporting the discharge to assess model and clarity over checklists

The Framework sets out that the majority of CHC assessments should take place outside of acute hospital settings; this is intended to support accurate assessments of need, and reduce unnecessary stays in hospital. To reinforce this, advice is given that it should not be usual practice for an individual to be discharged directly from hospital into long term residential care.

Further guidance is provided about the circumstances in which individuals do not need to be screened for CHC in an effort to reduce unnecessary assessments and provide greater clarity in this area. This includes the following situations:

  • ‘It is clear to practitioners working in the health and care system that there is no need for NHS continuing healthcare at this point in time. Where appropriate/relevant this decision and its reasons should be recorded. If there is doubt between practitioners a checklist should be undertaken.
  • The individual has short-term health care needs or is recovering from a temporary condition and has not yet reached their optimum potential (if there is doubt between practitioners about the short-term nature of the needs it may be necessary to complete a checklist). See paragraphs 109-117 for how NHS continuing healthcare may interact with hospital discharge.
  • It has been agreed by the CCG that the individual should be referred directly for full assessment of eligibility for NHS continuing healthcare.
  • The individual has a rapidly deteriorating condition and may be entering a terminal phase – in these situations the fast track pathway tool should be used instead of the checklist.
  • An individual is receiving services under section 117 of the Mental Health Act that are meeting all of their assessed needs.
  • It has previously been decided that the individual is not eligible for NHS continuing healthcare and it is clear that there has been no change in needs.’

CCGs will need to consider the provision of additional NHS services to support the individual until they are appropriately assessed for CHC, however the revised National Framework sets out that if the individual can be safely discharged to an already existing care package this should take place under existing commissioning arrangements. Reimbursement would be backdated to the date of discharge if the individual was subsequently deemed eligible for CHC.

Local resolution processes

The revised National Framework includes a clear requirement that all CCGs must have a local resolution process for resolving disputes about eligibility with individuals. CCGs must develop, deliver, and publish a process that is fair and transparent, including applicable timescales. The aim is to resolve such disputes earlier, and more consistently.

The National Framework sets out further detail about what local resolution procedures should include. Broadly speaking, a two stage local resolution process is required including an informal discussion, followed by a formal meeting if necessary. A key principle of this process is to ensure that the individual receives a clear and comprehensive explanation of the rationale for the CCG’s decision, even if this does not result in a change in the original decision.

More detail on the application of the Mental Capacity Act

The National Framework states that CCGs and local authorities should ensure that all staff involved in CHC assessments are trained in the principles and responsibilities of the Mental Capacity Act 2005 (MCA); where an assessor is not familiar with MCA principles, and is dealing with an individual who appears to lack capacity, that assessor should consult the employing organisation to ensure appropriate actions are identified.

More guidance is included about the application of the MCA at different stages in the process, including:

  • whether the individual can consent to the assessment process, including disclosure of information required to complete this
  • care planning
  • responsibility for authorisation of deprivation of liberty in the community

Further information about a ‘primary health need’ and the roles of organisations

Detailed guidance is provided in the revised National Framework about the concept of a primary health need, the overarching legislation and the responsibilities of the health and social care agencies involved in the process. The practice guidance includes questions that can usefully be asked at the assessment stage, to assist in determining the four characteristics of the individual’s needs (namely nature, complexity, unpredictability, intensity). However, it is important to note that the revised National Framework will not change the eligibility criteria for CHC.

Other useful clarification provided by the revised National Framework includes:

  • The purpose of the three and 12 month reviews is clarified as being to review the appropriateness of the care package, rather than to reassess eligibility.
  • Whilst the guidance is clear that an individual or their representative should be fully involved in the MDT process, the MDT can make a final decision on eligibility after the individual has left the meeting.
  • More detailed guidance on patients who wish to pay for additional private care.

How can we help?

All CCGs will need local resolution procedures to deal with disputes about eligibility with individuals and their representatives. We can review your existing or draft procedures to ensure that they are compliant with the law and new guidance. We are offering a fixed fee policy review at a cost of £500+ VAT.

It is even more important that all practitioners working in NHS continuing healthcare (CHC) have an understanding of the Mental Capacity Act 2005 (MCA) and how this applies to their role. We offer a workshop specifically for CHC and complex care teams to give practical guidance on the MCA and deprivation of liberty. Please contact us to discuss your training requirements.

We have a wealth of experience in advising commissioners about legal issues arising from CHC.