Author Archive for Gabe Susman

CASCAIDr in my view has always been 100% responsive and I appreciate the clear but warm approach adopted

We have known Belinda Schwehr for a number of years and have always found her advice and that of CASCAIDr invaluable. The support and advice from CASCAIDr has been particularly useful for people in receipt of statutory funding (and their families) who find themselves in a situation where their statutory funding is in danger of being cut and where there is the potential for unlawful commissioning practise. The current political and economic climate is a tough one but CASCAIDr reminds us all that the rights of the person are paramount and that we must operate within the legal framework. CASCAIDr in my view has always been 100% responsive and I appreciate the clear but warm approach adopted.”

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we were extremely pleased with the work and support of the charity

“After nearly 18 months of trying to get Adult Social Care to communicate with us regarding my brothers direct payment we enlisted the help of CASCAIDr. 

  The case, although complex, was settled without the need of legal proceedings and we were extremely pleased with the work and support of the charity.”

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If I had to use one word to express what Cascaidr does, it would be ‘reassure’

“If I had to use one word to express what Cascaidr does, it would be ‘reassure’. Reassure one has not ‘lost the plot’ – the law is the law. Reassure one feeling (well, loads actually!) that the law is being ignored is justified. Reassure one can do something about it and with Cascaidr’s support, in the end, the law is the law.”

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I cannot recommend the Charity more highly

“A county council attempted to reduce my learning disabled brother’s care package of five hours per day to three hours, without making a proper assessment of his needs, which had not changed for some years. CASCAIDr were fantastic in helping me draft letters with the relevant legal vocabulary, including references to the Care Act and some case law.  Although I had some knowledge of the subject, it was very reassuring to have the specialist advice to underpin the fairly protracted correspondence, as well as meetings. The council backed down, but not before the matter was taken directly to both the Chief Executive and Director of Adult Social Care, with a threat to involve the council’s Monitoring Office.  I cannot recommend the Charity more highly.”

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Thanks once again for taking to the time to review my question and for your detailed reply

“Thank you for you very comprehensive reply. The heavily subjective nature of the CHC assessment process I find extremely frustrating. I’ve read a lot online about CHC in the last two years, but still I do not understand what constitutes the legal limit of Social Services! Your reply has helped confirm the government has succeeded in its aim to make the system opaque and to move what used to be NHS responsibilities to Social Services so that individuals can be charged for their nursing care. I could waste a lot more time on this and get nowhere. Thanks once again for taking to the time to review my question and for your detailed reply.”

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Many organisations are simply not interested. I thank you deeply for taking the time to respond in depth and after thought

“Thank you so much for your extensive reply. It is much appreciated. There have been many charities I’ve contacted and many don’t want to know. My uncle is a complex case and different to many, as he does have mental capacity. Many organisations are simply not interested. I thank you deeply for taking the time to respond in depth and after thought.”

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I cannot give enough praise to CASCAIDr!

“I cannot give enough praise to CASCAIDr! They took a very unjust situation and made it all better!  We were handed an ultimatum to make a direct payment of £900.00 to a private ambulance firm or my father would not be discharged from hospital and transported to the waiting care home out of area. I had no real alternative options but also wished to minimise the stress on all concerned – particularly on my 97 year old father. We were informed by CASCAIDr that this was not a lawful charge, explaining the rationale as to why the cost of the ambulance was part and parcel of the duty to place in the area of his choice. The council ultimately took full responsibility for their error, apologised for the unnecessary stress they had caused, reimbursed the full amount and most importantly shared the learning with other social services such that others did not do the same (we believe).”

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CASCAIDr reminds us all that the rights of the person are non-negotiable and that we must operate within the legal framework

The support and advice from CASCAIDr has been particularly useful for people in receipt of statutory funding (and their families) who find themselves in a situation cuts are hinted at, or excessive commissioning pressures are mounting. The current political and economic climate is a tough one but CASCAIDr reminds us all that the rights of the person are non-negotiable and that we must operate within the legal framework. CASCAIDr in my view has always been 100% responsive and I appreciate the clear but warm approach adopted. “  

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Council and Clinical Commissioning Group at fault for the way they assessed care needs and entitlement to Continuing Healthcare funding, Ombudsman finds

The Council took too long to assess and to review changed needs. Additionally it did not fund a care home placement whilst CHC decisions were being made and financial assessments being completed.

The CCG’s related fault was with completing CHC checklists and a Decision Support Tool whilst delaying the reimbursement of care home fees.

What Happened

Mr T’s Huntington’s disease caused him to deteriorate over time.

His sister (Miss Q) contacted Essex County Council in August 2016 requesting support for her brother. Information about meals and aids was provided as well as referring him to the equipment service. However an assessment for equipment was declined by Mr T.

In February 2017 a social worker visited and assessed Mr T’s needs and referred Mr T for a CHC consideration. The CHC Checklist and consent forms were completed and received by the CCG resulting in a positive Checklist test in March 2017.

Mr T attempted suicide twice and his mental health was apparently declining. A specialist care home was discussed by Miss Q and the Council for her brother but when one was identified there was a wait for a vacancy to become available for Mr T. A respite placement was refused by the Council who instead put in place an interim care package at home until he was able to move into the care home in June 2017.

In July 2017 Mr T was assessed as eligible for CHC funding by the CCG.

However the care home fees already paid by Mr T to the care home whilst awaiting the funding decision by Mr T totalling £8750 were delayed in being reimbursed by the CCG.

In August 2017 the Council agreed to fund ‘without prejudice’ the care home placement whilst the issues with the CCG were resolved. The CCG were provided with copies of the paperwork they required by Miss Q on 26th September 2017 to evidence the payments made to the care home, and Miss Q accepted the CCG’s offer in writing on 7th October 2017.

The CCG authorised payment on 25th October and made the payment to Miss Q on 9th November 2017, by which point Mr T had died. The delays and issued encountered by Mr T and his family caused them considerable upset, as has the inconvenience trying to tackle the issues. Additionally the CCG’s delayed care home fee reimbursement impacted on the family’s ability to pay Mr T’s funeral costs.

Key Issues

The Council was found to be at fault because:

  • of the length of time taken to assess Mr T and put in place a care package for him;
  • there were delays in reviewing Mr T once it was apparent that there may be changes in his needs;
  • they did not fund Mr T’s placement whilst CHC processes were being completed (as to the reasons for which, there is nothing mentioned in the LGO’s report, as it happens).

The Clinical Commissioning Group was found to be at fault because:

  • delays and ambiguity regarding roles and responsibilities of professionals involved in the completion of CHC Checklists and the Decision Support Tool (DST)
  • delayed reimbursement of care home fees to Mr T.

Discussion

The Care Act 2014 places a duty on local authorities to carry out an assessment for any adult who appears to require care and support, regardless of their financial circumstances or likelihood of eligible needs. The assessment must be of the adult’s needs and the subsequent impact of those needs on the person’s wellbeing and the outcomes they wish to achieve.

According to Essex County Council’s own Key Performance Indicator ‘adults at risk’ should be given priority for assessments within 28 days.

In public law terms, and according to national guidance for the Care Act, the assessment should be done timeously, which means within an ‘appropriate and reasonable’ timeframe, considering also the urgency of needs, and any change in needs.

Council staff are obliged by regulation 7 of the assessment regulations to refer anyone who appears to them might be someone who might qualify for NHS CHC to the local clinical commissioning group.

Continuous Healthcare Funding (CHC) and FNC assessments and funding decisions based on up-to-date assessments of all the person’s relevant needs (social and personal as well) are the responsibility of the individual’s local Clinical Commissioning Group (CCG). However sometimes these responsibilities are delegated to other NHS organisations to undertake on behalf of the CCG.

Initially a health or social care professional will undertake a CHC Checklist (a screening tool exercise indicating whether a person MIGHT qualify for full CHC – set with a low threshold to be inclusive).

Each CCG and local authority should have an agreement as to which professionals (within those allowed by the rules) can complete the Checklist, but those involved in regularly assessing the individual’s needs (e.g. social workers) should be able to do this. The revised 2018 Framework for CHC makes further provision to ensure that checklists are not done needlessly, although there can be disputes about this and all that a professional needs to do is disagree that none is needed.

Upon completion of a ‘positive’ CHC Checklist which indicates possible eligibility for CHC, a full multi-disciplinary eligibility decision-making process follows, which involves the completion of a Decision Support Tool (DST) form which maps the actual needs assessment evidence on a scoring chart, and records a rationale for the MDT’s recommendation regarding the person’s qualifying for CHC funding.

Useful paragraphs in the Framework, to which the LGO could have referred, are here:

132. The DST is not an assessment of needs in itself. Rather, it is a way of bringing together and applying evidence in a single practical format, to facilitate consistent, evidence-based assessment regarding recommendations for NHS Continuing Healthcare eligibility. The evidence and rationale for the recommendation should be accurately and fully recorded.

And here:

21.1 Assessment in this context is essentially the process of gathering relevant, accurate and up-to-date information about an individual’s health and social care needs, and applying professional judgement to decide what this information signifies in relation to those needs. Both information and judgement are required. Simply gathering information will not provide the rationale for any eligibility recommendation; a recommendation that simply provides a judgement without the necessary information will not provide the evidence for any subsequent decision. Assessment documentation should be obtained from any professional involved in the individual’s care and should be clear, well-recorded, factually accurate, up to date, signed and dated.

The CCG’s designated decision-maker (often a Panel, but not necessarily so – it can be decided by any two people with the authority to take this next step) is supposed to ratify the recommendation in all but exceptional circumstances. This process should be completed within 28 calendar days from the date of receipt of the positive CHC Checklist. Any credibly unavoidable delays in the process should be explained and confirmed in writing to the individual.

If the CHC Checklist indicates the person is not even considered possibly to be eligible for CHC funding, the CCG should, in writing, advise the individual of their right to ask the CCG to reconsider. Once the CCG have reconsidered the individual can complain to the CCG as the final right of appeal if they are not happy with the decision. Most importantly any disputes between CCGs and local authorities regarding funding responsibility must not leave individuals without the support they need.

Considerations for Professionals in health and social care public bodies

  • How efficient are your processes for completing healthcare/nursing needs and Care Act assessments and a person’s right to a DST within a reasonable time of appearing to be someone who might qualify for CHC?
  • Are there clear joint arrangements confirming roles and responsibilities of professionals undertaking CHC checklists in light of the revised framework in place since October 2018?
  • Are you aware of regulation 7 of the Assessment regulations, which OBLIGE local authority staff to make referrals to the CCG based on their own independent judgements?
  • Are you delaying the funding of Discharge To Assess placements whilst awaiting CHC assessment processes to be completed? It would still be the NHS’s function so to do, if the person has already been positively checklisted. There is no justification for NOT checklisting a person, just because they are not yet in the next setting.

Questions for Clients / Service Users

  • Have you faced delays when awaiting assessments or for care packages to be put in place?
  • Have you been considered as someone who might be eligible for full NHS continuing health care status and funding?
  • Have you experienced ambiguity or delays in CHC eligibility considerations or funding? Interest is payable on reimbursements!
  • Have you been caught in a dispute between two statutory organisations, neither of whom are willing to pay for care needs whilst they resolve their dispute?
  • Has your CHC package been adequate, in your opinion? If not, HOW inadequate has it been? CCGs are governed by public law principles and the package must be rationally sufficient, transparent and accountably defensibly capable of meeting needs, taking all other legal principles into account, such as the one that says relatives cannot be MADE to provide the necessary care!

If so, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report can be found at

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/17-015-113

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R (on the application of Muriel Maguire) v Senior Coroner for Blackpool and Fyle and United Response and Ors [2019]

Jackie Maguire (52), who had Down’s syndrome and moderate learning difficulties, died in hospital in February 2017 of a perforated ulcer and pneumonia at the age of 52. She had lived for more than 20 years in a care home in Blackpool and required one-to-one support due to her severely compromised cognitive and communication abilities. By the time of her death, her mobility had become limited and she needed a wheelchair to move around outside.

An inquest took place in June 2018 which concluded that she had died of natural causes. During the inquest, the Coroner had made two rulings:

(1) that there was insufficient evidence to safely leave the question of neglect (whether there had been a gross failure to provide Jackie with basic medical attention) to the jury;

(2) that the enhanced investigative duty under Article 2 ECHR did not arise in this case (following Parkinson which had been decided in the High Court shortly before the inquest in this case took place).

These proceedings were a judicial review seeking to challenge those two decisions.

It was acknowledged that there was a series of failings in Jackie’s care by healthcare staff. These included a failure to make a home visit, failures to triage properly or elicit a full history from carers, poor telephone advice and poor liaison with ambulance services. However, the Coroner had concluded that these amounted to allegations of individual negligence, rather than the systemic or regulatory failings (as required by Parkinson).

Irwin LJ (with whom Farbey J & Lucraft HHJ agreed) summarised the ECHR case law on Article 2 as providing two principles:

(1) Article 2 is only engaged by an individual’s death if (a) there is evidence of systemic or regulatory dysfunction; or (b) if the state has assumed responsibility for the individual’s welfare or safety

(2) The key consideration in deciding whether the state has assumed responsibility for an individual’s safety is how close was the state’s control over the individual.

It was noted that previous case law had established that, where the state had detained an individual, such as in prison, in a psychiatric hospital, or in an immigration detention centr,e the level of control was high and Article 2 was likely to be engaged. However, the position where an individual lacked capacity to consent to care and treatment involving a deprivation of liberty was less clear cut:

“We agree that a person who lacks capacity to make certain decisions about his or her best interests – and who is therefore subject to DOLS under the 2005 Act does not automatically fall to be treated in the same way as Lord Dyson’s paradigm example [as in state detention]. In our judgment, each case will turn on its facts.

Where the state has assumed some degree of responsibility for the welfare of an individual who is subject to DOLS but not imprisoned or placed in detention, the line between state responsibility (for which it should be called to account) and individual actions will sometimes be a fine one. However, it was the function of the Coroner to draw it. This court will not interfere save on grounds of irrationality or other error of law. The Coroner’s approach reveals no such error. On the evidence before the Coroner, it was open to him to conclude that this was a medical case and that a jury could not safely find that Jackie died as a result of any actions or omissions for which the state would be responsible.” [paras. 48 & 49]

Comment: It is important to note that this judgement does not actually mean that the Coroner’s decision not to hold an Article 2 inquest in this case was correct, merely that it was not irrational on the evidence before him. Another Coroner might have decided differently. It is particularly important to note that academic and other evidence illustrating the widespread issue with premature deaths of people with learning disabilities in the UK was only put before the court during these proceedings (where it could not be legitimately considered) and had not been put before the Coroner. It is possible, therefore, that a future Coroner in a similar case, might be persuaded to see a series of individual failings as ‘systemic’ if such evidence were to be put before them. However, this judgement does mean that, for families, it is unlikely that a challenge to a Coroner’s decision not to hold an Article 2 inquest where an incapacitated adult dies whilst deprived of liberty in a care setting will succeed without both strong evidence of systemic or regulatory failings and this evidence having been put before the Coroner prior to the challenged decision.

It may be helpful to note also that changes to the Coroners and Justice Act 2009 made in 2017 (s.178 Police and Crime Act 2017) mean that Coroners are no longer automatically obliged to hold an inquest at all into the death of someone in a care setting where there is a valid DOLS authorisation or CoP welfare order authorising a DoL in place unless other grounds for doing so exist (such as that the death may have been unnatural). Guidance at: https://www.judiciary.gov.uk/wp-content/uploads/2013/10/guidance-no-16a-deprivation-of-liberty-safeguards-3-april-2017-onwards.pdf

Full Judgement: https://www.bailii.org/ew/cases/EWHC/Admin/2019/1232.html

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