Just published, and with effect from 1 July 2022, we highlight a few key things in a new National Framework for Continuing Healthcare.
At the end of May 2022, the government published a revised National Framework for NHS Continuing healthcare (CHC) and Funded Nursing Care (FNC), updating and replacing the version from October 2018.
It will come into effect on 1 July 2022, in line with the arrival of Integrated Care Boards (ICBs) to replace Clinical Commissioning Groups (CCGs), and the main driver for the update seems to simply be reflect that change to the NHS landscape.
It is clear on the face of the document that none of the 2022 amendments are “intended to change the eligibility criteria for NHS Continuing Healthcare”.
It does, though, highlight a few changes in emphasis, if not in substance.
Assessment after discharge
It was already policy (in the 2018 Framework) that assessment for CHC eligibility (ie the checklist and then the Decision Support Tool (DST)) should ordinarily be done in the community, ie after any discharge from hospital. This is on the basis that the assessment of longer-term needs is only carried out when recovery has been optimised. This point gets even greater emphasis in the July 2022 Framework:
Compare:
| October 2018 | July 2022 |
| “In the majority of cases, it is preferable for eligibility for NHS Continuing Healthcare to be considered after discharge from hospital when the person’s ongoing needs should be clearer.” (para 109) | “in the vast majority of cases [assessment for CHC] will be following discharge and after a period of recovery at home” (para 101) And “In the vast majority of cases, CHC assessments should take place in community settings. There may be rare circumstances where assessments may take place in an acute hospital environment.” (para 107) |
Consent
The document says that it clarifies “when consent and informed and active participation should be sought throughout the CHC process”.
Certainly, the section on consent (para 73-85) has doubled from the 2018 Framework (para 72-73).
There is, though, nothing in the 2022 Framework that is radical or ought to be a surprise when it comes to the law on consent.
The key difference is that for the purpose of consent the CHC process is now broken down into three distinct issues: the participation of the individual in the CHC assessment process, any physical examination, and sharing information.
This unpacking of the process is reflected in a proposed form for consent which runs to some 16 pages, though that also includes provision for assessment of the patient’s capacity and best interests decision-making (see below).
Strictly, it is quite right of course to distinguish the different decisions involved in the CHC assessment process, and to seek consent (or make a best interests decision where the patient lacks capacity for that decision) as appropriate for each.
One pitfall here though is to confuse the patient’s decision whether or not to participate in the CHC assessment with the ICB’s obligation to carry out an assessment where it appears to the ICB that there maybe a need for CHC (assuming that the regulations in the pipeline for ICBs will reflect the duty on CCGs as it was in Reg 21 of the Standing Rules 2012).
In short – the patient cannot be compelled to participate in the CHC assessment process. That is a matter for their consent, and – therefore – a best interests decision for them if they cannot make that decision for themselves. But their consent is only about their own participation, not whether the assessment goes ahead anyway – the CCG has (and the ICB will have) an obligation to assess, whether or not the patient participates. Their non-consent does not mean that assessment cannot go ahead, and the implications of their non-co-operation should be explained.
Where the patient can make their own decision, of course, consent is a pre-requisite for any physical examination involved in the assessment process and/or for sharing information that is confidential about that patient.
However, just as is the case for information sharing among health and care professionals for the provision of care or treatment, it is not necessary to seek consent from a patient for information to be shared in that group for the purposes of the CHC assessment (or later reviews).
Capacity and Best Interests
In the 2022 Framework, paras 86-96 deal with capacity and best interests decisions in a little more detail than in 2018 (para 74-81).
The capacity section is entirely unchanged, and in expanding the section on best interests, again the key difference is that the decisions for physical examination and sharing of information are distinguished. There is no discussion of participation in the assessment in terms of best interests and, as we’ve said, it is not a matter of consent (or, therefore, best interests) whether the assessment goes ahead, as it is the ICB’s statutory duty to assess for CHC eligibility.
Deprivation of Liberty
There is also a useful reminder about the ICB’s responsibilities to get cases where it is responsible for a deprivation of liberty for a patient in their own home (and therefore outside the scope of the Deprivation of Liberty Safeguards), the ICB must take the case to the Court of Protection:
“Where the individual who lacks the relevant capacity is in receipt of NHS Continuing Healthcare in their own home, including tenancy based accommodation (e.g. supported living), and is subject to restrictions that may constitute a deprivation of liberty, the deprivation of liberty cannot be authorised using the Deprivation of Liberty Safeguards (DoLS) process, instead authorisation must be obtained from the Court of Protection. In these circumstances, because the ICB is the primary funding authority, it is responsible for applying to the Court of Protection for this authorisation and should seek their own legal advice for this reason. The ICB is responsible for its own associated legal costs, but is not responsible for the legal costs of the individual concerned. However, the ICB should ensure that the individual has access to legal advice in their own right”. (para 346).
The Liberty Protection Safeguards (probably no sooner than April 2024) will, of course, replace DoLS entirely and will include all settings, not just care homes and hospitals as DoLS does, so such applications to Court to authorise a DoL should no longer be needed. But the LPS will also bring significantly more responsibilities to ICBs, as the new Responsible Body to deal with authorisation of any DoL where the patient is CHC funded [see our article on this here – link to the COP newsletter article].
Speaking about the current arrangements under DoLS, the 2022 Framework reminds us that “The request for Deprivation of Liberty Safeguards (DoLS) authorisation should be made by the care home or hospital to the local authority before the placement is made”.
The same principle will surely apply to LPS authorisations.
Going full circle though, that begs a question how it will be possible for the ICB to take responsibility for authorising LPS referrals for CHC funded patients, when the LPS process must be done before discharge into any DoL in a care home, but the patient is not going to be assessed for CHC eligibility until some weeks after that discharge? Just one of the many things we hope will become clearer as the various reforms bed in.
For further information, please contact:
Ben Troke, Hill Dickinson
ben.troke@hilldickinson.com
