As a solicitor who has conducted NHS Continuing Healthcare appeals for over a decade, I’m increasingly concerned by examples of Integrated Care Boards (ICBs; the NHS bodies which make decisions about Continuing Healthcare (CHC) eligibility) rejecting recommendations of eligibility which have been made by Multi-Disciplinary Teams (MDTs).

• The Law and Guidance
• Breaking it Down
• When can an ICB reject an MDT recommendation?
• What should you do next?

The Law and Guidance

ICBs have a duty under the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 to undertake CHC eligibility assessments. Thereafter, the National Framework for NHS Continuing Healthcare puts flesh on the legislative bones in the form of additional guidance.

Links both to the relevant law and guidance can be found via the links below:

Standing rules: NHS Continuing Healthcare and NHS funded nursing care 

National Framework for NHS Continuing Healthcare and NHSfunded Nursing Care

Breaking it Down

The role of the ICB in the CHC decision making process is addressed at paragraph 37 to 41 of the National Framework. Those provisions set out the following parameters:

1. The ICB should verify and confirm recommendations on eligibility by MDTs.
2. The ICB should not have the function of financial gatekeeping, completing or overturning DSTs or recommendations.
3. Whilst the ICB cannot overturn a recommendation, it can refer cases back to an MDT for further work in certain circumstances.
4. Where an ICB uses a panel, this should not replace the function of the MDT, whose role is to assess the individual, complete the DST and make a recommendation regarding eligibility.
5. Eligibility recommendations must be led by the practitioners who have met and assessed the individual.

When can an ICB reject an MDT recommendation?

There is no provision in law or guidance which allows an ICB to reject an eligibility recommendation. In certain exceptional circumstances, the ICB should remit the case back to an MDT for further work, as I’ve highlighted above.

Exceptional circumstances where recommendations may not be accepted by an ICB are just that; exceptional. They should be limited to situations such as where the DST has not been completed fully, or there are significant evidential gaps or the evidence is simply at odds with the recommendation made.

What should you do next?

Where an MDT, having completed a Decision Support Tool, recommends eligibility, and you receive a decision letter from an ICB indicating that it refused to accept an MDT recommendation, you need to decide what to do next. The deadline for appealing an ICB’s eligibility decision is 6 months from the date of the decision letter.

In my professional opinion, a decision like this should always give rise to cause for concern, because the process is intended to give priority to the professional opinion of the MDT members, who, more often than not, have direct involvement in and knowledge of the individual’s care.

The distinction between those decisions which should be challenged and those which should not is often a difficult one to decide and will depend on the specific reasons given by the ICB for not accepting the MDT recommendation. For this reason, you should seek advice from an experienced professional, such as a solicitor, in order to make an informed decision about presenting further challenge by way of an appeal.

James Urquhart-Burton – Solicitor & Partner