In the context of NHS Continuing Healthcare Funding (“CHC Funding”) the MDT refers to the group of professionals who are empowered to make recommendations about an individual’s eligibility for CHC Funding.

CHC Funding is the name given to free, non-means tested care funding which is provided by the NHS for people who are assessed as having a Primary Health Need and are therefore eligible for it.

The MDT will complete the Decision Support Tool (“DST”) in order to assist them to make a recommendation on an individual’s eligibility. That document can be found here.

In all but the most exceptional cases, Integrated Care Boards (“ICBs”), which are the NHS bodies that hold the purse strings, must accept an eligibility recommendation received from an MDT.

With so much power and influence over the process, and with their decisions making the difference of several thousand pounds per month in care fees, how should an MDT be comprised? The starting point for answering this question lies in a Statutory Instrument called The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the Standing Rules”).

Rule 21(13) states:

In this regulation…

…“multi-disciplinary team” means a team consisting of at least—

(a) two professionals who are from different healthcare professions, or

(b) one professional who is from a healthcare profession and one person who is responsible for assessing persons for community care services under section 47 of the National Health Service and Community Care Act 1990(15).

Breaking this down, we can conclude that the MDT must consist, as a minimum, of two healthcare professionals with different backgrounds, or a healthcare professional and a social care professional.

It is worthwhile noting that because this requirement is set out in a statutory instrument, it has legal force and so any MDT which falls short of this requirement will be deemed unlawful and any recommendation it subsequently makes will be open to challenge.

The National Framework for NHS Continuing Healthcare Funding is a lengthy document which constitutes what the Department of Health considers to be best practice guidance when assessing eligibility for CHC Funding. It can be found by following this link.

Paragraphs 139 to 143 deal with the composition of an MDT and reiterate the legal position which I have discussed above as follows:

Para 141

“Whilst as a minimum requirement an MDT can comprise two professionals from different healthcare professions, the MDT should usually include both health and social care professionals, who are knowledgeable about the individual’s health and social care needs and, where possible, have recently been involved in the assessment, treatment or care of the individual. Standing Rules require that, as far as is reasonably practicable, the ICB must consult with the relevant local authority before making any decision about an individual’s eligibility for NHS Continuing Healthcare and in doing so cooperate with that local authority in arranging for such persons to participate in an MDT for that purpose. ICBs may use a number of approaches (e.g. face-to-face, video/tele conferencing etc.) to arranging these MDT assessments in order to ensure active participation of all MDT members, the individual and their representative, and any others with knowledge about the individual’s health and social care needs as far as is possible. It is best practice for assessors to meet with the individual being assessed, ideally before the MDT meeting, and any arrangements should include consideration of the best options National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 46 for the individual, following a person-centred approach. For example, it may be that a hybrid meeting (including a combination of people in the room and people “dialling in”) should be considered.”

In other words, the best MDTs are those which comprise both healthcare and social care professionals, who have prior knowledge of the individual and their needs. In the opinion of the writer, this is absolutely correct. At its core, the legal test for eligibility for CHC Funding requires the MDT to consider whether, taking into account the totality of an individual’s needs, their healthcare needs are more than merely incidental to the provision of their accommodation, and whether their nursing needs are over and above the low level which a local authority could lawfully be expected to provide.

In my view, an MDT comprising only healthcare professionals simply cannot reasonably conclude whether the care required is over and above what a local authority could provide, without the input of someone who has an in-depth understanding of the nature and type of care which the local authority can provide. A social worker would meet that description.

This coincides with the guidance laid down in the National Framework for NHS Continuing Healthcare Funding and in correspondingly, in cases where an ICB fails to include a social care professional on an MDT, NHS England’s Independent Review Panels will not hesitate to find that a decision of ineligibility is unsound as a result.

In conclusion, although an MDT comprising two different healthcare professionals is lawful, it is by no means represents best practice, nor does it account for the importance of the local authority’s say about the type of care which it considers it can lawfully provide, and what it can’t. In my view, Parliament should legislate to ensure the inclusion of a social worker on an MDT is legally binding.

The writer, James Urquhart-Burton is a solicitor with more than a decade of experience advising families in relation to NHS Continuing Healthcare assessments and appeals. If you would like to speak to him, please contact Ridley & Hall Solicitors for a free initial discussion on our freephone 0800 8 60 62 65 or via our 24/7 live chat facility on our website.

James Urquhart-Burton – Partner & Solicitor