Do you really understand the “Well-Managed Needs” argument? - 2018
Well-managed needs – still a hot topic of conversation and controversy that is generally misunderstood by families and the Clinical Commissioning Groups (CCGs) alike. We explain the issues…
Both sides will often quote the “well-managed” needs principle to suit their cause: CCGs use it to reject claims for NHS Continuing Healthcare funding; whereas families quote it to support their claim for free funding for their relative’s care home fees.
So how can both parties be at odds on this issue and who is right?
The issue of well-managed needs tends to raise its head when undergoing a Multi-Disciplinary Team Meeting. The CCG assessors may seek to underplay the individual’s health needs by suggesting that they are “well-managed” – arguably a commonly used metaphor for basically saying that the individual simply won’t qualify for NHS Continuing Healthcare Funding.
Don’t be put off disheartened by these comments as the National Framework states that “well-managed needs are still needs” regardless (see below), and should still be taken into account as part as the overall decision–making process.
However, with all the controversy surrounding the subjective interpretation over the phrase “well-managed needs”, grasping the concept is not quite as simple as it seems at first blush. Of course, your interpretation can largely depend on which side of the fence you are coming from.
The 2012 National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care deals with the well-managed needs principle on page 61 under Practice Guidance Note 11.
Take a look at paragraph 11.1 which states, “This Framework provides that the decision-making rationale should not marginalise a need just because it is successfully managed: well-managed needs are still needs”. Ie don’t exclude or ignore the need as part of the assessment process just because it is being well-managed.
This is good news! What this means in practical terms for you, is that just because the need is well-managed does not necessarily entitle the CCG to play their ‘get-out card’ to decline NHS Continuing Healthcare funding.
But, and this is often overlooked by both families and the CCG, you still have to look at the underlying health needs. You can’t simply trot out this quote and expect the CCG to role over. Read on…
The NHS National Framework also refers to the Decision Support Tool for NHS Continuing Healthcare Amended (Revised 2016) and paragraphs 28 and 29 deal with how this (well-managed needs) principle is applied. The salient paragraphs have been copied below for your convenience.
“28.Needs should not be marginalised because they are successfully managed. Well-managed needs are still needs. Only where the successful management of a healthcare need has permanently reduced or removed an ongoing need will this have a bearing on NHS continuing healthcare eligibility. However, there are different ways of reflecting this principle when completing the DST. For example, where psychological or similar interventions are successfully addressing behavioural issues, consideration should be given as to the present-day need if that support were withdrawn or no longer available and this should be reflected in the Behaviour domain.
29.It is not intended that this principle should be applied in such a way that well-controlled physical health conditions should be recorded as if medication or other routine care or support was not present. For example, where needs are being managed via medication (whether for behaviour or for physical health needs), it may be more appropriate to reflect this in the Drug Therapies and Medication domain. Similarly, where someone’s skin condition is not aggravated by their incontinence because they are receiving good continence care, it would not be appropriate to weight the skin domain as if the continence care was not being provided.”
Critical – and you need to understand this – just because the individual is receiving care and their health needs are being better managed, it does not mean that the underlying need has actually gone away. It is simply just that – ie they are being better managed. The National Framework seems to suggest (although it could perhaps give a clearer example) that only if the needs are reduced or disappear entirely as a result of care intervention can the CCG argue that they have been better managed. The fact the health needs still exist but are better taken care of – has not eradicated the need. It still subsists but is better managed by the care in place.
Take the example provided at Practice Guidance Note paragraph 11.2 of the National Framework where an individual’s challenging behavioural needs might be considerably improved and be better managed (if not eradicated entirely) by changing their environment eg moving them from a hospital setting (where they might feel disorientated or anxious), to a more relaxed environment at a care home or even their own house. That would be an example of a well-managed need.
But, suppose as an alternative example that same individual has hallucinations, displays physical and verbal aggression, is a danger to themselves and others around them, is disorientated and wanders around outside at night time, exhibits inappropriate behaviours (eg smears faeces on themselves and the walls), and generally exhibits other the challenging behaviours – if those behaviours continue to persist in the care home environment, but are better controlled eg by anti-psychotic or other medication, the needs are still there and haven’t gone away; and so whilst they may be well-managed, you cannot ignore the underlying challenging behavioural need which still subsists.
We often hear families saying that their relatives must be eligible for NHS Continuing Healthcare funding because if you take away the 24 hour care package in place, remove medication and other essential needs and don’t feed the individual, they wouldn’t survive. Yes, that is true, but it equally applies to the majority of people in a care home or nursing environment as well. The point is when quoting the “well-managed” needs principle, you cannot ignore basic routine nursing needs either. The individual should still be assessed as if their routine care is still in place, using that as a base-line. It is the management of their underlying health needs over and above the routine that you need to look at and how they are being managed. That is the key.
Otherwise, everyone in a care home or nursing environment would invariably be eligible for free NHS Continuing Healthcare funding, and that is not how it works.
Furthermore, well-managed needs still have to be considered in conjunction with the four key indicators, namely, nature, complexity, unpredictability and intensity of the health needs.
To summarise:
These are the common opposing positions adopted by families and CCGs
- Families will argue that just because the CCG say their relative’s needs are well-managed – they are still needs – and so it does not excuse the CCG from paying for their relative’s care home fees as they are still needs.
- Conversely, the CCG will argue that as the needs are well-managed, there is no entitlement to free NHS Continuing Healthcare funding (CHC).
Our TIP:
- Look at your relative’s underlying health needs first.
- Take away routine base-line care required to manage those needs.
- Have the underlying needs been reduced or removed entirely by the nursing intervention or is it just a case that they are better controlled?
- Even if the underlying needs still subsist regardless, then even though they may well be better -managed, they are still needs – so stand your ground!
Let us know if the CCG have used the “well-managed” needs argument against you, and if so, what you has been your response – and has it changed their mind?
Thanks. A useful summary. What constitutes routine nursing care though and when does that routine care tip over from FNC to CHC ? For example, does prescribing anti-psychotics on a routine and PRN basis, and monitoring for side effects constitute routine FNC or CHC care ?
This is an excellent evaluation and explanation however, it is difficult to apply and follow this re the revised October 2018 Framework as the page and paragraphs references are different.
Where in the Care Act 2014 and statute does it say this about “manage Needs” etc?
My mum cannot do anything for herself. She is bed bound and has to be turned by care staff. She can only move her eyes and mouth. Speech is limited. She is doubly incontinent, has to be fed, offered fluid. She would never say she was hungry or thirsty. She has severe cognitive impairment, has had pressure sores in the past due to bad care, cannot assist in washing, changing etc. Where do you think she sits on the “managed need” argument? We have another DST soon because the first one was a complete sham.
Hi! I have read this fairly quickly, but it is still very unclear to me. I’m not sure anyone understands this issue, in fact…. But if you think you do understand it, can you find a way to explain it more clearly? It seems to me there’s a completely absurd problem of defining terms going on — the NHS is playing Alice-in-Wonderland-style games with language. The entire thing is just a simple problem of logic:
1. All applicants for NHS CHC funding have private funds, otherwise they would just go to social services for help
2. A need is “well-managed” when it is “managed” roughly as well as modern technology, medicine and care methods allow — that is, as well as money can buy. (Thus someone might be in terrible pain, but if they have all the best painkillers on the market as well as physiotherapy and massage and soothing words from the best carers, then their need is “well-managed”)
3. Private funds and NHS CHC funds are able to “manage needs”in this sense equally well — the colour of my money and the NHS’s is the same
4. Therefore all applicants for NHS CHC funding have “well-managed” needs at the time of making their application (unless they’re simply not spending enough on care, in which case they should just cough up)
It follows EITHER that the NHS should not give CHC funding to ANYONE, or that the whole question of “well-managed” needs should be dropped, and instead judgments about who to fund should be made based on the relative severity/ extremity of their needs.
Can you explain to me where I’ve gone wrong here? Big thanks if you can! I had an initial meeting over NHS CHC funding for my mother in which this “well-managed” term was bandied about, and when I tried to explain to the other side that they were being completely illogical, they could neither grasp the point I was making nor explain the principle at stake clearly to me. Tom
Given the successful Coughlan argument/conclusion….. That all care provision to someone incapable, is nursing care and that social services cannot really provide any required Registered Nursing care and that the cost of any registered nursing care should reflect the actual cost, then the same would apply to anyone not wishing to go private and to self fund.
A baby is nursed by way of feeding at the very least by it’s parent because it cannot yet do it for itself.
What is obvious here is the need for some years of continuity of care in this instance.
If that continuity is withdrawn then the well met needs provided for, at even the most basic level to the baby, prove to be more than needs of so called daily living because the baby would die.
The whole matter of well met needs might be to be looked at in conjunction with the fifth and almost hidden criterion of ‘continuity of care’ which I believe resides within the intensity criterion.
Then what must be addressed is….. what is intensity?…. Five minutes being slowly shot at in a trench might seem intense…… five months at risk of being shot at whilst preparing to be shot at for five minutes in a trench could equally seen as intense.
Continuity of necessary care over a long period is a display of intensity in meeting what many assessors wrongly view and then disregard as ‘needs of daily living’ that they ,when challenged, equally dismiss as well met even though there is almost always intensity by virtue of repeated long term provision of necessary care….
Beware the word ‘assist’. Doing something for some one might assist them but it is not to assist them to do it. So often used to imply that needs are easy to meet well because the patient helps themselves too, when in fact they are much more complex etc.
Repeated and necessary continuity of care and therefore intense care provision, even if the needs appear ‘well met’ is still intensity in the provision of that care.
Now repeat with variations, the thoughts above whilst using the other eligibility criteria.
However, just for a laugh, also always ask what the assessors and decision makers have used to compare against the legal tests of a LAs remit to provide care. They will likely make no logical reply…… Most likely they will argue that they have compared needs against the CHC eligibility criteria, which have little or no basis in law at all.
If the standing rules regulations etc. are read, these two tests relating to LAs are in fact the only law regarding eligibility.
Thanks. This is really helpful.
I shall be fascinated to see how the NHS attempt to apply this to my relative’s retrospective case where, all too frequently during the relevant period, there was no attempt to manage the needs at all. Either the care wasn’t happening, or any documentation of it was inadequate. The Nature of the needs were Non Routine, not least because of their complexity between domains and their Intensity. There are plenty of documented examples of the consequences of non management of needs, and fortunately our own simultaneously recorded evidence, and so the opportunity for them to fall back on “If it’s not in the care home notes, it didn’t happen” should have limited effect. I hope so anyway!
It is clear to me, certainly in our case, so long as family & friends have
engaged meeting the Primary Need care work then they are happy to do a
tick-in-box procedure to keep it that way. “Regardless” of the individual
concerned or their Carers needs or health risks. If they get sick because
needs are not managed not bothered. So long as there is a completed DST in
the file to answer any later investigation should it occur. If it did not
include all the relevant evidence or the specialist clinical assessments
that should be conducted for the DST that are relevant, if unchallenged it
shall be deemed a true and correct record much later.
So you know you are not alone, in our case they,
1. did not gather all the relevant evidence,
2. did not engage and gather all the relevant clinical specialist
assessments for the specialist medical conditions presented
3. did not arrange & chair a DST meeting properly with correct attendees
and reasonable notice
4. did not engage and resolve reasonable family concerns on non-compliant
procedure
5. did not did not appoint a distinct separate Coordinator to manage the
above
6. did not disclose the case evidence file to the family even when
repeatedly requested to do so
7. conducted a DST meeting with only a District Nurse & Social Worker as
decision makers who knew next to nothing about the individual having only
spent a couple of hours with them.
The non-compliance to procedure is so grave the only conclusion a
reasonable person can draw is that it was a deliberate tick-in-the box
decision to deny CHC funding and correct clinical help at home.
This is happening all around the country despite National Framework as
government guidelines instigated in 2012. Revision amendment to it due for
publication soon, I hear.
It is the “level of need” that has to be established as the Legal Test. See
Coughlan, Pointon cast law etc.
The DST is only suppose to be government guidelines to gather evidence and
not the lawfull decision in itself. It is only suppose to assist
practioners to gather the corrext relevant evidence in a UK wide coherent
way. Before that each council did it differently.
The DST recommendation goes to the Panel for a Final Decision for this
reason. To make sure the evidence file complies with the case law when
compared to it.
So you can see why they do not gather the evidence or conduct relevant
specialist evidence to that file.
Aquire the evidence yourself and file for a judicial review is the quickest
best way.
LA & NHS CCG cause a long delay deliberately I think by not doing it
properly, even tho suppose to do it properly in 28 days National Framework.
Most people are bamboozled. I know I was at the start a year ago.
I must commend the website which is excellent.
Yes, I know the risk of legal action that can be very costly if you do not
know of such risk or legal matters involved. And most do not.
Solicitors can often mislead you and good ones hard to find.
It is always the last resort & only to be attempted when all other avenues
have been investigated and expended. Sometimes the threat alone with a full
file concentrates the mind.
The crux of the matter, you cannot rely and trust the LA and CCG to follow
correct prodeure is my experience, even when challenged. They ignore you.
I didn’t make myself clear, I did not mean instigate legal in the first
instance, only if wish for a quick correct decision. There is alot of work
you have to do prior yourself for that route.
Once you understand the National Framework procedure,
(1) gather all the evidence yourself
(2) complete the DST yourself.
(3) understand the case law precedent judgements as that is how the limit
shall be defined legally, there is no prescriptive formula.
(4) Organise and liase with the practioners & attend the DST being aware of
the 28 day timescale, the Practioners are not going to inform you of the 28
days or work to it.
(5) Obtain a DST recommendation in 28 days to final panel, that shall be a
No, it nearly always is.
(6) Then with your “full” case file consider judicial review if you
evaluate the file evidence is robust to challenge the No.
Sometimes the file and legal notice gets a result without court.
The practioners, especially the LA and CCG have their own agenda to follow.
The data shows hardly any DSTs are carried out in the National Framework
government guidelines timescale of 28 days.
In our case 10 months of delay before DST for something that should have
taken one month and also NONE of our concerns about following the standing
rules and regulations were followed either.
In our case, Practioners forced the DST without me, despite our concerns
and failings, which remained unresolved and the evidence file severely
incomplete, I believe, so the “No” recommendation would be recorded.
The correct relevant evidence was not gathered or correct MDT personnel
with relevant credentials & expertise, were constituted either, and also
most disturbingly, incorrect facts were recorded in the DST. Lies to you
and me.
If you do not have the correct recorded evidence or correct clinicians with
relevant “Specialist” credntials involved, the DST just becomes a tick-box
form by a Social Worker and a general young inexperienced Nurse, based on
the sparse evidence. That is what happened to us.
That is the LA and CCG strategy (in our case anyway) as the final panel
decision role is to compare the DST EVIDENCE FILE TO BE COMPLIANT WITH CASE
LAW.
The individuals needs are…..secondary…… to that.
If you were to look back at our DST form together with evidence file, the
level of need evidence records are not recorded there. So if someone
investigated the case much later, then the high level of need cannot be
established from a desktop study of the DST data file and the form has been
completed and signed off by L.A. and CCG inexperienced personnel. It is
deliberately misleading.
My judicial review point was intended to communicate a strategy based on
what you shall nearly always come up against.
Not a must do in all cases.
Every case is different but if yours is complex, which they usually are
then.
Be aware from the start of the following you cannot trust the LA and CCG to
follow correct procedure.
(1) A severe delay shall be instigated by Practioners to the procedure I
believe, to wear people’s resolve down and deliberately bamboozle the
procedure.
(2) The correct evidence shall not be gathered and recorded, because there
is a risk of a high level of need being in the evidence that attracts a
cost to the CCG.
(3) A Coordinator (usually a Nurse Assessor from the CCG) shall either not
be appointed properly, or if so, shall not put the family representative at
the “centre of the process”, explain the procedure and guide you through it
all either despite what the National Framework says
In our case the Nurse Assessor was deliberately obstructive by,
A. not answering calls, emails, letters,
B. did not perform any updating visits to the house,
C. did resolve any reasonable written concerns,
D. arranged visits to the house by personnel to a very vulnerable sick
person, doubly incontinent and immobile without an appointment,
E. deliberately withheld the evidence file saying not allowed to hand over
the documents despite citing national framework clause 33.1b.
F. when raising concerns about lack of a Coordinator, I met numerous times
with a senior L.A. manager at our home instead, at his behest I might add,
raising this issue & other health matters and procedure issues and I,
issued Meeting Minutes which he ignored. Very misleading.
He was recorded by me as the “acting Coordinator” and was informed that is
the role he had undertaken and shouldnt be. All the actions from the
minutes were accepted in the meeting by the LA manager who sits on the
Final Panel review board resolved non of them. Then a DST was convened
without me without proper written notice or resolving matters raised. etc.
When questioned why this happened he said the CCG has senior authority over
him and that is why he sent a Social Worker to the meeting without
resolving all our queries. The Nuremburg defence.
He did not even understand the role of the “Coordinator” till I informed
him, neither did the CCG Nurse Assessor who had herself recorded in her
letter to us as a MDT decision maker, no Coordinator appointed at all, so
that informs of how procedure is wrongly executed in my area.
I must stress we have held our dignity and been civil with everyone despite
extreme provocation. We would lose our argument if we did not, I understand
that is very important matter to adhere to.
Families need to understand that the LA and CCG shall obstruct National
Framework correct procedure to get the “level of need” decision required as
they are in control of procedure, so do not gather the correct relevant
evidence, and have the power of DISCRETION when performing the protocol and
making a decision.
Unfortunately if you do not understand this, Practioners shall either wear
family down to give up, or cause an unreasonble long delay during a
vulnerable time of life when the help & support is needed urgently or the
individual dies.
Data also shows “retrospective” cases and claims against CCGs because of
the strategy the LA & CCG employ as a common working practice.
The recorded evidence is the key to the door, the LA and CCG fully
understand this…..
If the file has all the correct relevant evidence the LA & CCG find that
more difficult to deal with, so in my view, you have to gather it yourself.
That’s why the correct evidence in the file is missing in most cases so a
“No” decision can be awarded and the case closed.
I understand “most” people are not able or have the fortitude to spend time
on a case during a vulnerable time when overloaded caring, skills to
navigate the protocol, case law and Standing Rules & Regulations. Even most
of Practioners do not. So judicial review is not the best advice for
everyone.
I understand what you are saying.
The LRP and IRP processes are slow with another more long lengthy wearing
delay and the file evidence is not recorded properly yet because it is
sparse and incomplete, despite 10 months of going around in circles. Not
much to review.
CCG have tried referring me to their outsourced Complaints company, but I
have just ignored that deliberate distraction strategy, it’s a an attempt
again to bamboozle and cause more delay. ie. Wear me down.
No attempt was made to explain the LRP or IRP framework protocol until I
requested. Deliberately referred me to “complaints” without consultation
because that is better obfuscation.
I am still working on our case, the procedure was so distracting it was at
the detriment to the needs I was meeting. I have had a rest from it for a
few weeks.
Great site, keep up the great work.