CCG focus: cost capping of CHC packages….oooh, let me at them!!

I have just heard of a CCG – owing formal Fast Track duty CHC services to a person in a deteriorating phase of a condition that could be terminal – suggesting that it can only pay for 56 hours a week of care, unless the family pays for night time care privately, or otherwise the person will have to go into a care home.

When asked for confirmation in writing, that 56 hours was a maximum, and that the CCG would leave the family to pay for night time care beyond the value of 56 hours, themselves, as if having needs at night could just be ignored, because of it being dark(!) and what was the legal source of the power to have any such policy, please? – the clinical assessors said that they could not do that.

I am not saying that there is a right to stay in your own home to die, on CHC. I am not saying that a person can just hold out for the care that they WANT, rather than the care that they are assessed as needing, simply based on preference. This is all funded out of public money…

BUT I AM saying that this CCG’s stance is the kind of stance that could be used as a platform for high profile and embarrassing precedent setting litigation on the basis of any number of public law principles that will be familiar to anyone who is already legally literate in this field:

a) it appears to be a blanket policy about the most that people owed a legal duty ‘need’ – without regard to the professional clinical assessor’s view of the individual’s actual needs – ie a budget led assessment, not a needs led one…

b) another way of seeing this is that it’s a blanket refusal to provide services to people with needs, at night, because of the commissioning inconvenience that care costs more at night.

c) it does not admit of any possibility that patients might be at a point in their condition whereby meeting their needs in a care home, as opposed to doing so IN their own home, would be an indefensible decision by a professional: for example, where it would be highly likely to de-skill them (ie final stages of recognising where one is, with dementia), trigger a psychotic phase (eg ignoring the effect of others on a person with a brain injury and a need for calm and quiet), separate a couple who still like each other after 50 years of togetherness, or who are genuinely co-dependent), or force a young dying parent to be separated from children for the last months of their life.

d) it ignores the fact that a person without mental capacity would still need a best interests decision by the CCG even if they themselves could not say no to the offer of a cheaper solution, a placement in a care home – because relatives DON’T have the right to obstruct access to services by refusing what’s offered, on behalf of someone else: the state still has a duty to decide what it is bound to DO!

e) it ignores human rights considerations, particularly article 8 rights – which although limited, still require to be conscientiously weighed against the costs of meeting the needs in the person’s preferred setting – and ‘conscientiously’ here, means carefully and with regard to all relevant considerations, and (of course) regard to an individual’s situation – not the knee-jerk application of a rule made up by a finance director.

f) it ignores the National Framework Guidance on working out what the CCG’s offer should be, starting with the individual’s preference – the guidance has been worded to allow for wriggle room, but it is still guidance which must be followed, unless the CCG wants to identify a really good reason why it should not!

g) it assumes that there will actually be sufficient care home places in the area for less than the cost cap, in which to pop people owed a duty – regardless of the challenges that might be involved in caring for the person in question – a potentially unsafe assumption nowadays, since care homes are beginning to ask ‘What’s the point?’ and throwing contracts back at public body purchasers…

h) it appears to regard Fast Track CHC arrangements as somehow separate and distinct from ordinary CHC packages, indicating a determination, perhaps, to review people smartly OFF of that status for free care services, in a few weeks time, if they still dare to survive!

so, CCGs have been warned – they need to get more legally literate, through training or legal advice, if they are going to stay out of the judicial review courts.

The guidance suggests that disputes about the content of a CHC package should be taken to the NHS complaints system. Unfortunately that overlooks the fact that in England, allegations of illegality, instead of incompetence, have always been allowed to be taken direct to the judicial review court.

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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