Dissatisfied with your MDT outcome? Consider these potential grounds for appeal...

Published 12/09/2023

Following a positive Checklist Assessment, your relative will move on to a formal assessment of their healthcare needs. This formal assessment is conducted by a Multi-Disciplinary Team (MDT) using the NHS’s approved Decision Support Tool (DST). The DST contains the 12 Care Domains and scores the different levels of need in each. The NHS’ appointed assessors will complete the matrix summary of scores at the end of the DST and add their comments regarding the 4 Key Characteristics (Nature, Complexity, Intensity & Unpredictability). To finalise the DST they will conclude with their recommendation as to whether your relative meets the criteria for NHS Continuing Healthcare Funding (CHC) and has a ‘Primary Healthcare Need’. The completed DST with the MDT’s recommendations will be passed to the local NHS Integrated Care Board (ICB) who will consider the matter.

If your relative is found eligible for CHC, the ICB will put in place a package of fully-funded care to meet those assessed healthcare needs. Great outcome!

However, what happens if there is a negative outcome at the MDT stage? Read on to find out what you need to do next…

If you agree with the negative decision not to grant CHC Funding, then that’s fine. Remember that if your relative’s needs become more challenging in due course, you can always ask for another Checklist to be done. However, despite the disappointing outcome, at least you will have the benefit of an existing DST to refer back to and that should be of great assistance as a comparator to help identify where needs have changed and become more complex, intense or challenging etc and why it justifies completing another Checklist.

If you disagree with the negative outcome, then you only have 6 months to lodge an appeal to the ICB’s NHS CHC Department from the date upon which that decision was communicated to you in writing.

If you are going to spend time mounting an appeal, you need to have reasonable grounds to argue your position. Here are some examples – although the list is not intended to be exhaustive:

1.Has there been a procedural breach or abuse? For example, was the guidance in the NHS National Framework followed? For example, were there:

(A) at least 2 professional assessors at the MDT? There should be one from a healthcare profession and one from a social care profession as a minimum, who were (B) familiar with your relative’s health and social care needs, and (C) where possible, have recently been involved in your relative’s assessment, treatment or care and (D) are, of course, familiar with the NHS National Framework? (See paragraphs 139 to 141)

2.Did the MDT assessors actually see your relative at the assessment? As incredulous as it may seem, yes, we have heard of circumstances where the MDT assessors did not wish to see the individual they were assessing – despite the NHS National Framework repeatedly stating, on some 25 occasions, that the assessment process is intended to be ‘person centred’ i.e, putting the individual at the heart of the assessment and care-planning process! Clearly, pre-judging needs and deciding that the individual wasn’t eligible is a breach of process and may be good grounds for appeal.

3.Was the DST assessment carried out without prior notification to, or consultation with, the individual and their family representatives or advocates? The National Framework states that the individual and their appointed representatives are entitled, pursuant to the repeated ‘person-centred’ mantra, to be informed of, and encouraged to, take part in the assessment process. You cannot be excluded and should try and make every effort to attend.

However, if the MDT is at short notice or you cannot be there on the selected date, see if you can get it adjourned and do so promptly! After all, you are entitled to reasonable notice and we would certainly recommend that you are present to support your relative’s application and ensure the assessment is completed fairly, thoroughly and robustly.

4.Were you prevented from speaking or having your say? You are entitled to speak, be heard, and indeed are encouraged by the National Framework to contribute to the MDT’s assessment. You will be better placed to fill in any gaps in the assessors’ knowledge about your own relative’s healthcare needs; correct any misunderstandings, wrong or misleading information gleaned from the records or else provided by speaking to care staff – who may unhelpfully understate your relative’s needs (perhaps due to a lack of real understanding of them, poor use of language, or in an effort to try and make the care being provided sound better than it is).

Don’t let the MDT assessors try to intimidate or bully you, or suppress what you want to say. But, think carefully before you speak. Only contribute if it is going to be of benefit to your relative’s application for CHC. Too often, family members feel they need to say something and have ‘their day in court’, but unfortunately, witter on about irrelevancies, which not only delays the assessment but annoys the assessors; and in doing so can actually undermine a good case.

So, be warned! Think and plan ahead, about the key points you want to cover and stay focused. Don’t get side-tracked and waste time on issues which won’t increase the level of need.

5.Is the outcome decision robust? I.e do certain healthcare needs clearly indicate a higher level of need than recorded in the DST? Have the 4 Key Characteristics been applied properly and accurately? Have the assessors underplayed and down-scored certain care needs – perhaps due to inexperience, or by overlooking certain sections of relevant records, or not picking up on certain health conditions, implications of medication, or grasp how the care needs are met? All this (and more) can impact across the Care Domains and contribute to a wrong negative outcome. Read our blog below, as an example of how a pressure ulcer can impact on so many other Care Domains.

Skin Integrity: Beware the Danger of Pressure ulcers!

6.Is the decision blatantly wrong? Are you left scratching your head and asking yourself in sheer frustration, how any right-minded assessor, who supposedly understands and has been trained in using the National Framework, and who has had the benefit of seeing your relative, can possibly come to this blatantly incorrect outcome?

As you will see from the plethora of comments on our Facebook page, posted by families who have first-hand experience of the CHC assessment process, the overwhelming consensus appears to be that it seems to conspire against the individual in favour of the ICB – despite the intended ‘person-centred’ approach.

No more so, was this evident in the BBC drama, “Care”; Victoria Derbyshire’s BBC exposé (11/06/019) – Exposed: NHS Continuing Healthcare makes headline BBC News; and Rear Admiral Mathias’s own personal struggle to get CHC Funding for his mother – ‘Fighting for NHS Funding for my mother was a complex as my work on the nuclear deterrent’; and Channel 4 News Spotlights The Complexities And Frustrations Of Claiming NHS CHC Funding

Unfortunately, the CHC process is still the same and nothing really has changed to create a level playing field and shifting the balance of power away from the NHS in favour of the individual. Getting an award of CHC Funding is generally a tough uphill ask, that’s why so many families seek professional advice and advocacy support.

The nature of the MDT assessment process is entirely subjective as it requires an assessment of an individual’s healthcare needs against set criteria and descriptors set out in the DST. Sometimes there is a conflict of opinion between the assessors as to which level of need should be scored in a particular Care Domain and then how that impacts on the other Domains. But where there is disagreement, the National Framework provides at PG32.3, that the higher level should be chosen. We wonder how often the individual is actually given the benefit of doubt and instead, a lower level of need is scored?

7.Has the MDT reviewed all available records when completing their DST? It is common for the assessors to look at available care home and other clinical records (eg, GP, and physio records etc) to get a wider picture of their history and daily care needs.

It used to be accepted best practice that they would consider records going back 3 months. However, more recently since Covid, some ICBs are only going back 1 month in an effort to speed up assessments. However, reviewing such a short period can potentially have a detrimental effect and significantly skew results to the ICB’s advantage, leading to a negative outcome. To get a more balanced picture, we recommend that the MDT should really be looking at 3 months’ worth of records.

How much clinical evidence should an MDT assessment consider?

8.Was the MDT’s positive recommendation for CHC Funding overturned by the ICB? If so, look carefully at who overturned the decision and why. Was it an individual acting arbitrarily using their discretion, or do it go before a panel? It shouldn’t be left to a sole person to review the MDT’s DST and recommendations and act as ‘judge, jury and executioner’. The National Framework provides that the MDT’s decision should be accepted by the ICB unless there are exceptional circumstances. Financial budgeting is not one of them! So look at the reasons given for changing a positive MDT recommendation into a negative outcome. Are there any grounds for appeal due abuse of process or the rationale being incorrect?

Appeal! Appeal! Appeal!

If you disagree with the negative outcome, you must appeal. But you only have 6 months to do so! Whilst there is a lot of work to be done to prepare for your appeal and timescales are quite short to do a proper job, don’t rush in to lodging your appeal in anger or frustration. Appealing requires really careful consideration and planning to have the best chance of success. Those who naively rush head-on into an appeal, could trigger the ICB into action and catch you off guard by setting an early appeal date and tight timescales to lodge your appeal submissions before you are actually ready to do so!

Look out for our next blog for help on your appeal.

Summary

Preparation for the MDT is absolutely paramount in giving your relative the best chance of securing early CHC Funding. Don’t ‘wing’ it and hope it will be fine on the day. But, if all fails and you are dissatisfied with the outcome, consider appealing the decision but don’t forget there are strict timescales that apply.

For additional reading look at:

The National Framework for Continuing Healthcare and NHS-funded Nursing Care

Search ‘MDT’ for other related blogs on our caretobedifferent website.

Buy our book How To Get The NHS To Pay for Care.

Email your enquiry to: enquiries@caretobedifferent.co.uk

Call us on: 0161 979 0430

Get help via our Nurse Advice Helpline or contact Farley Dwek Solicitors for professional help with your MDT or appeal.

Tagged Categories: After your assessment, CHC essentials, CHC funding, MDTs, NHS Continuing Healthcare, Ready to appeal

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4 Comments

Valerie Bradley May 31, 2024 at 11:30 am

I am due for a DST to be carried out 20th June, l am recording it, the nurse Assessor and ICB did not like it and stated they were going to record it to.
well at lest they can no longer alter the DST results, if l fail the DST l will be appealing and will continue with the appeal right through to a judicial review, at a judicial review if granted, the grounds will be the secretary of state for health and social care has been consistently breaking the law established in the Coughlan Court judgement, as CHC is about the law

nigel duckworth October 28, 2023 at 2:13 pm

This is a follow up to my post above. The DST has now been completed but the assessment of a Primary Health Need has not. Thus far we have spent a total of 7.1/2 hours on the DST, 5 1/2 hours face to face and 2 hours remotely. This is because I have a plethora of evidence and because we have been quite unable to agree on the correct procedure. The answer to my question above about the relevance of the Checklist scores has been answered. Scoring 5 As on the checklist should have translated into at least 3 "high" scores on the DST, given that the criteria is identically worded and the evidence I put forward the same. The coordinator, however, explained away the difference by saying that the DST was a much more detailed investigation of the evidence -which of course it is. But some of my evidence accepted for the Checklist was discounted because the assessors said that they would take into account only matters which had occurred in the very recent past. This was notwithstanding that one of the two MDT assessors had completed the Checklist! So some horrendous and highly dangerous incidents which had occurred during the course of my father in law's schizophrenia did not count and he received low scores in nearly all domains. As a concession, the coordinator said that she would record on the DST why I considered the scores to be incorrect and what score I would have given.
The DST scores were all, in my view, clearly based entirely on well managed needs. My father in law, although much improved due to a combination of medication and the efforts of care home staff, remains very ill with a condition for which there is no cure and in which acute relapses are common in those who have had relapses previously. He has had two so far which have resulted in hospital stays and sectioning.
My argument with the coordinator was that those current well managed needs should be taken into account for each and every domain and reflected in the scoring. But this was rejected on the basis that my concerns would be noted on the DST and the well managed needs would be assessed at the Primary Health Need Stage. This is too late, I told her, because by that time the damage has been done in the DST. When challenged with criteria from the National Framework, her reply was that her manager had instructed her to do this. Very funny-or not.
The big problem for everyone is that when put on the spot by me--where is your evidence for that? Where does it say that in the Framework? On what basis do you say that the Framework does not apply? etc. my questions were met with what I call fudge and mudge or with "those are my instructions". It was rather like trying to pin down jelly.
Of course if my application is rejected as I expect, these are huge appeal points but I would much rather that the DST is conducted according to the rules and practice guidance laid down. I have nearly 40 years experience of dealing with criminal matters in court, but I had to use every ounce of my experience in arguing against the assessors. For that reason alone, I would urge everyone who is not legally and/or medically qualified to obtain representation, wherever possible. Many applicants will otherwise be fed to the wolves.

Care to be Different October 30, 2023 at 8:30 am

Hi Nigel - so sorry to read about your experiences with CHC so far. We would be happy to offer you our help and advice if you'd like to contact us on 0161 979 0430. Kind regards The CTBD team.

nigel duckworth September 29, 2023 at 12:40 pm

My father in law who is "seriously mentally impaired" with paranoid schizophrenia and other conditions according to his GP, and is in a care home, recently passed a checklist with 5 As and 2 Bs. I asked the assessor, who will also be on the MDT, whether the panel will look at the checklist and its scores. She said yes. I am fully aware that the DST questions are more difficult to obtain high marks in, but does any one know to what extent the checklist is taken into account. For instance, it might be difficult for them to row back very much on his behaviour score which was A* and cognition which was A. And if the same arguments which were accepted at checklist stage are put forward, it might be difficult for them to give a modest needs score or even a high one. In the checklist case, I was able to persuade the assessor that evidence from July, August and September 2022 was admissible when my father in law was in hospital 3 times and then transferred straight to care simply because of three things. One, no checklist had been done within 14 days after he ended his D2A in October, nor was it done until now after I had requested a checklist by letter on 1st February. Two, schizophrenia is incurable and there will be good and bad periods during the progress of the disease. Both should be taken into account and we went back to a horrendous episode he had in 2018 to illustrate this. Third, the ICB Chief Nurse had agreed with me that the 3 months consideration is not sacrosanct and it is sometimes possible to go back further-which we did. So I am wondering if anyone has any experience of the checklist being referred to at the DST and how it might have affected the process.