Updates to the national framework for NHS continuing healthcare and NHS-funded nursing care come into force from 1 July 2022

On 30 May 2022, the national framework for NHS CHC and NHS-FNC was updated to reflect a number of changes coming into effect from 1 July 2022.

The updated Framework intends to:

  1. Provide greater clarity to individuals and staff using an amended structure to avoid repetition;
  2. Reflect legislative changes since the 2018 version of the framework was published (primarily the Health and Care Act 2022);
  3. Clarify policy areas such as:
    1. Strengthening guidance which provides that most CHC assessments should take place outside of acute hospital settings;
    2. Clarifying when consent and informed and active participation should be sought throughout the CHC process;
    3. Providing clearer guidance on ‘best interests’ decision-making in CHC; and
    4. Providing additional advice on resolving inter-agency disputes, recognising the responsibilities and makeup of the new Integrated Care Boards, which are due to replace CCGs.

In addition to the revision of the framework, there have been updates to the relevant practice guidance, the CHC ‘tools’ (the checklist, decision support tool and fast track pathway tool) and the patient information leaflet.

None of the updates are intended to change the CHC eligibility criteria.

Hospital discharge (paragraphs 101 – 108)

The 2018 version of the framework stated that in most cases, it was preferable for eligibility for CHC to be considered after discharge from hospital when an individual’s ongoing needs should be clearer. It noted that an assessment of eligibility for CHC in an acute hospital might not accurately reflect an individual’s longer-term needs.

The updated framework reiterates this and provides additional clarity. It states that in the vast majority of cases, a screening for CHC should take place following discharge and a period of recovery in a familiar setting or intermediate / rehabilitation placement.

The updated framework, like the 2018 framework, stresses that when an individual is ready to be safely discharged from acute hospital, it is very important that this should happen without delay.

Consent and best interests decisions (paragraphs 73 – 96)

The 2018 version of the framework provided that when someone has capacity, their informed consent should be obtained before the start of the process to determine eligibility for CHC, which should encompass permission to undertake the assessment. The 2018 version of the framework did not confirm how to proceed in the event that a capacitous individual refused an assessment for CHC; it stated that ‘the appropriate way forward should be considered jointly by the CCG and the local authority…it may be appropriate for the organisations involved to seek legal advice’.

The updated framework refers to the legal duty on ICBs to take reasonable steps to ensure that an assessment of eligibility for CHC is carried out for individuals for whom the ICB has responsibility where:

  1. It appears there may be a need for such care; or
  2. Where an individual who is receiving CHC may no longer be eligible for such care.

It states that if an individual with the relevant capacity refuses to participate in the CHC assessment process, the Multi-Disciplinary Team may consider relevant health and care records or existing assessments to determine the best way to meet the individual’s needs and whether they are eligible for CHC – in other words, the assessment continues, because there is a duty to complete it.

The updated framework provides additional guidance on consent in relation to physical intervention and care and treatment. It also sets out information in respect of processing and sharing personal data, with reference to GDPR, confirming that consent is not required for the sharing of information within and between the assessment teams, but is needed for sharing information with family members, and others not involved in direct care or care planning.

The ‘best interests’ section in the framework has been updated to reflect these changes and provide further clarity.

ICBs and inter-agency disputes (paragraphs 228 – 239)

The Framework has also been updated to reflect the changes introduced by the Health and Care Act 2022, which establishes ICBs as the statutory bodies with responsibility for CHC. The Framework has been updated to remove references to CCGs, in light of them being replaced by ICBs.

The updated framework includes detail of the makeup of ICBs and states they must cooperate with other organisations and establish joint working arrangements to meet the health needs of the local population, including for CHC.

The updated framework provides detailed guidance on how to minimise the risk of disputes and necessary features for any inter-agency disagreement and dispute resolution protocols in the event that a dispute arises.

Whilst the 2018 version of the framework stated that CCGs should agree interim responsibilities for who funds a care package when there is a dispute, the updated framework reiterates this and provides additional detail; it notes that in these circumstances, costs should be met by one or more ICBs on a ‘without prejudice’ basis where disputes cannot be resolved quickly at a local level. It refers to the process contained in Appendix 4 of NHS England’s Who Pays? guidance.

If your organisation requires advice in respect of the recent updates to the framework, or any other aspect of CHC, please do not hesitate to contact our friendly team of experts.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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