The CHC eligibility assessment process… “Or How I learned To Stop Worrying And Love” the Independent Review Panel

The NHS Continuing Healthcare eligibility decision-making process attracts appeals and legal challenges like moths to a particularly bright lamplight. Recently, NHS Surrey Downs Clinical Commissioning Group found themselves on the receiving end of such a judicial review challenge before the High Court. The allegations of unlawful decision-making were extensive – 10 grounds of challenge all-in-all.

The Facts

Mr Gossip previously suffered a severe spinal injury whilst playing rugby. The accident left him tetraplegic. Despite his significant disabilities, Mr Gossip progressed to qualifying as a solicitor and has worked for the Crown Prosecution Service for the last 30 years.

He was assessed for CHC eligibility in 2015 by a Multidisciplinary Team (MDT). The Decision Support Tool (DST) this produced was subjected to an audit and review process carried out by the CCG for the purpose of quality assurance. Following the audit, changes were made to the contents of the DST by the MDT’s nurse assessor. The MDT approved the revised DST which recommended Mr Gossip as being eligible for CHC. 

The DST was submitted to the CCG CHC decision-making panel who decided to decline the MDT’s recommendation due to there being “no supporting evidence for the DST scores”. They decided further evidence should be gathered and a new DST was required which should be produced by a new MDT. There were a number of delays in obtaining this evidence and arranging the further assessment. 
A new decision-making panel considered the matter in March 2017 which found Mr Gossip was ineligible for CHC. Mr Gossip appealed this decision, first through the CCG’s internal process and subsequently to NHS England’s Independent Review Panel. In both cases, Mr Gossip was unsuccessful, leading to a judicial review challenge to the CCG’s March 2017 decision.

The upshot: CCGs can take comfort from the IRP appeals process

The High Court found the claim to be fundamentally flawed - the CCG was not the appropriate target for this type of judicial review challenge. The appeals process for CHC eligibility decisions culminates in a full re-hearing of the issues by an IRP. The High Court’s view was this independent review “cures” all earlier deficiencies in the CHC decision-making process. The implication of this is the only element of the CHC process which can be challenged via judicial review is the IRP decision. The CCG’s processes and decision are, in effect, sheltered by the role of the IRP.

Mind your decision-making process: useful pointers from the High Court

The judgment provides wide-ranging commentary on the obligations of a CCG in relation to its CHC decision-making process. 

But wait a minute… doesn’t this judgment mean that legal liability lies with the IRP? Doesn’t that make all this the IRP’s problem? 

It is true this judgment gives claimants a firm steer to direct any legal challenge towards the IRP. As a result, the guidance provided by this judgment will now make required-reading for any member of an IRP. To minimise their exposure, sensible IRP members will feed the High Court’s approach into their own decision-making. A CCG that is not clued up may be on the receiving end of a bumper crop of successful appeals returned to them by the IRP. 

The answer? Save yourself the grief and make sure your internal processes “cut the mustard”. 

As a snippet of what is a lengthy judgment, the High Court confirmed its view on the following points:

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