Here’s a warning to financial advisors.

The NHS Continuing Healthcare Funding is a package of fully-funded care provided by the NHS and is FREE at the point of need.  It is payable regardless of wealth and is not means-tested. Therefore, if your relative has a ‘primary health need’ and meets the eligibility criteria for NHS Continuing Healthcare Funding, then all their healthcare needs, including accommodation, should be paid for in full by the NHS.

Consideration for NHS Continuing Healthcare Funding should be given as the first point of call.  Too often, the first question that Care Home Managers will ask is, “How will you be paying for your relative’s care?” or “Will they be self-funding?”

Typically, care home fees average around £750 per week, increasing to £2,000 in some more affluent areas. When you gross up that cost  it can amount to many thousands of pounds paid in care home fees, annually.

When the Care Home Manager realises that you don’t have sufficient funds, it will inevitably lead to other questioning as to how you intend to pay for your relative’s care?  They will usually ask whether your relative has any savings or assets, such as a home that could be sold to pay for their care fees.

If there are insufficient savings or assets, the Manager may suggest you look towards Local Authority Funding, which is provided by Social Services, and is subject to means-testing.  So, if your relative has assets or savings in excess of £23,250, then they will be obliged to pay for all their care. This will either mean eroding your relative’s hard-earned lifetime savings, or selling an asset, such as their home to pay for their care.

Once the Care Home Manager realises there are insufficient funds to pay for the care home fees, they may suggest you look into NHS Continuing Healthcare Funding.

We know from our own media campaigns, the National Survey we commissioned, and the general lack of media attention, that this area of CHC funding is not widely known amongst the public. It has been described as the “NHS’s best kept secret”. However, as we know, your relative’s entitlement to NHS Continuing Healthcare Funding should be the first question that is considered, not the last!

Similarly, Independent Financial Advisors (IFAs) also have a professional duty to advise their clients as to the availability of NHS Continuing Healthcare Funding, before offering to sell a wide range of financial policies to cover the cost of care. Consideration as to whether it is appropriate to arrange for their client to undergo an NHS assessment for CHC Funding should be their first priority.

Unfortunately, in our experience, most financial advisors have never even heard of NHS Continuing Healthcare Funding, and it’s not even on their ‘radar’ when exploring funding for their relative’s care fees.

However, their lack of knowledge is not actually surprising, as many medical professionals we speak to know very little about NHS Continuing Healthcare Funding either. Therefore, if your GP or Consultant doesn’t know or understand what CHC Funding is all about, how can they even possibly begin to recommend their patients be assessed for this funding?

Nevertheless, it is incumbent upon financial advisors and other companies providing financial advice, to explore the availability of this free funded care at the outset, as it could benefit their clients. It could save taking out unnecessary financial policies or making unwanted investments, and saving large IFA commission fees.

Warning! We understand that there are several cases of litigation in progress against financial advisors for failing to advise their clients properly as to the availability of NHS Healthcare Funding.

Financial advisors in this market need to be better educated as to how the NHS assessment process works, what the eligibility criteria are for NHS Continuing Healthcare Funding, and who is likely to get funding.

Farley Dwek Solicitors have built up expertise in this field over many years, and work in conjunction with our team of specialist independent nurses to help families, nationwide, through the complex NHS assessment process. Unfortunately, the whole assessment process is largely subjective, which leads to inconsistent results across the country.  It is often referred to as the ‘postcode lottery’.  Click on the map to find out which areas are more likely to obtain CHC Funding depending on where you live.

Equally, financial advisors should also be aware that their clients may be able to claim retrospectively for care fees that were wrongly charged and should be repaid by the NHS.  There is a whole separate process for making a retrospective claim.  However, this can take many years and involves detailed, line by line analysis of copious medical and care home records when preparing written submissions in support of the retrospective claim.

Clients at Farley Dwek have the advantage of knowing that we have specialist expertise in the field of NHS Continuing Healthcare Funding and can provide support and advocacy services in relation to both live assessments and retrospective claims. In the event that your relative does not qualify for NHS Continuing Healthcare Funding, we can also offer independent financial advice to protect their position through Farley Dwek Financial Services.

In summary, assessments for NHS Continuing Healthcare Funding should always be the considered before seeking financial independent advice or signing up to any policies to pay for care home fees. Do not be unwittingly drawn into the trap of discussing self-funded care without ensuring that your relative first undergoes a formal assessment for NHS Continuing Healthcare Funding.

If you require help at any stage of the assessment or appeals process contact us on 0161 272 5222 or 0800 011 4136 for a free telephone consultation, or email us at: enquiries@farleydwek.com

Patients awaiting triage assessment at hospital, transfers, or ‘parked’ on a trolley waiting for a bed to become available contribute to the majority of falls at hospital.

Most of these falls are unwitnessed – primarily due to the lack of staffing and close supervision.

Staff may become distracted perhaps whilst attending to other patients or emergencies, leaving vulnerable, elderly or cognitively impaired patients at risk of falling.

Patients can be left for long periods of time on their own and may try to mobilise themselves, but without the necessary strength, awareness or cognitive function to be able to do so safely.

Patients experiencing a fall at hospital usually result in spinal, hip, shoulder, arm or wrist injuries.

With closer supervision and monitoring, these incidents could and should have been avoided.

Hospitals should carry out risk assessments and to ensure that all patients are safe.

A number of other incidents causing injury arise from patients falling out of their hospital bed. We believe that this is one of those events which is completely unacceptable and entirely avoidable if proper supervision and risk assessments are in place.

Often patients will return to their hospital bed following surgery under general anaesthetic.  Patients are usually groggy from the sedative effects of anaesthesia and strong painkillers administered whilst undergoing recuperation.  Unfortunately, many hospitals and intensive wards are understaffed. Although some patients may need one-to-one close supervision, we suspect that in practicality, that is a difficult goal to achieve. This provides an opportunity for vulnerable, disorientated or impatient patients to try and get out of bed themselves unaided, placing themselves in danger and at risk of falling.

NHS statistics have previously shown that 1 in 200 patients fall out of a hospital bed, which is quite incredible, considering that the situation could easily be avoided.

All hospitals should have a bed rails policy.  However, even when the policy is in place, nursing staff attending to a patient in bed may lower the sides, for example, to administer treatment, examine or turn a patient, but then inadvertently forget to raise the side rails again – putting them at risk of falling.

We understand that some hospitals have a policy not to put the bed rails up for fear of causing worse injuries – asphyxiation or entrapment of the head or neck.  The rationale appears to be that there is more risk of serious injury (and possibly death) by a patient being trapped between or by the bed rails, than would be caused by rolling out of bed (or over the top of bed rails if on a higher mattress).  However, we take the view that there is more likelihood, and therefore, a greater risk to elderly or vulnerable patients falling out of bed if there are no bed rails in place to prevent them from falling.

The NHS tried to defend one of our previous cases on the basis that the bed rails were left down because they thought that our 82 year old client was likely to try and climb over the bed rails to get out of bed! Our client was recuperating from major surgery, and even if she was fully fit, she said that her climbing days were over!  The NHS rationale for leaving the bed rails down was clearly flawed, and had they remained in place, her injuries would have been entirely prevented! Her accident was a totally avoidable.

Bed rails and bed safety equipment should be assessed to balance the risks and benefits to each patient. According to MHRA (Medicines and Healthcare Products Regulatory Agency) ‘Safe use of bed rails’ (December 2013), “Risk assessments should be carried out before use and then reviewed and recorded after each significant change in the bed occupant’s condition, replacement of any part of the equipment combination and regularly during its period of use, according to local policy.” The risk assessment should include whether the patient is likely to fall from their bed and whether bed rails are an appropriate solution.  Consideration should be given as to whether any alternative methods could be used instead. Could the use of a bed rail increase the risk to the patient’s condition, for example, “if an active but disorientated bed occupant tried to climb over it?”

Certain categories of patient are considered at greater risk of entrapment in bed rails, including the elderly, adults or children with communication problems or confusion, and those with dementia, repetitive or involuntary movements, impaired or restricted mobility. Entrapment is defined as “entrapment of a patient’s chest or neck within bed rails, between bed rails, bed frame or mattress, where the bed rail dimensions or the combined bed rail, bed frame and mattress dimensions do not comply with Medicines and Healthcare products Regulatory Agency (MHRA) Guidance.”

According to the NHS, Never Events reported between 1^st April 2017 and March 2018 (published April 2019), there were 418 reported Serious Incidents, but there were only 2 recorded incidents of chest or neck entrapment in bed rails.

For further information, read our webpage: Fall out of a hospital bed, and our previous blog on Negligence claims for falling out of a hospital bed.

In summary, most falls from a hospital bed could have been avoided with adequate risk assessments, monitoring, and appropriate risk management.

These ‘never events’ “should not occur if the available preventative measures have been implemented by healthcare providers”.

If you or someone you know has experienced a fall from a hospital bed, call us on 0161 272 5222 or 0800 011 4136 for a free consultation, as you may be entitled to compensation for injuries sustained.

We recently learned about a Multi-Disciplinary Team meeting (MDT) to assess an individual’s eligibility for NHS Continuing Healthcare funding (CHC) which took place in a hospital. Whilst quite permissible, a hospital setting for an assessment is now considered far from ideal.

According to paragraph 109 of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (revised October 2018), the assessment should now take place in a community setting –  ie the place where the individual lives. The Framework indicates that “it is preferable for eligibility for NHS Continuing Healthcare to be considered after discharge from hospital where the person’s ongoing needs are going to be clearer.” Otherwise, such an assessment might not accurately reflect the “individual’s needs whilst they are in an acute services environment…”

But, that is not all. Read on. It gets far worse!

The MDT took place without informing the individual who was actually being assessed – despite the fact that she had mental capacity.  Nor did the MDT advise her husband that it was due to take place. They simply told him that they were having “a little meeting”… which, in fact, turned out to be the full MDT itself! So, the MDT went ahead without the individual or a family member being present, and without any opportunity for advocacy support or anyone being able to present their case for CHC funding to the Clinical Commissioning Group. We would like to think that this was a purely an administrative oversight by the CCG rather than a deliberate attempt to exclude the individual and her husband. But either way, it is clearly an abuse of process, and if it happens to you, it should be vigorously challenged and you must appeal immediately.

Our comment:  Firstly, a hospital setting is not usually the appropriate venue for such an MDT meeting as the purpose is to assess the person’s health needs in their living environment with access to all relevant (care or nursing) records, nursing assessments, behavioural assessments, current care plans, a 24/48 hour diary indicating needs and interventions, GP information, speech and language therapy (SALT) assessments, falls risk assessments, Waterlow scores, psychiatric nurse assessments etc. etc. but to name a few! The National Framework gives a long list of examples of the types of document one could include as part of the assessment.

If the MDT assessors didn’t even consult with the individual being assessed or her husband, then it is highly likely that they didn’t have access to all relevant records either – especially in a hospital setting – where most of the pertinent care records would not be kept anyway.

If this has happened to you, we strongly recommend appealing any adverse decision if CHC funding is not granted.

We often find that care home notes and records inadequately or insufficiently record daily entries in relation to an individual’s care needs.  This could be for a variety of reasons, including poor training, lack of time and resources, or simply too few carers or nurses looking after too many patients.

Deficiencies in the care records and poor record keeping can present a significant problem for families undergoing a Retrospective Review for NHS Continuing Healthcare Funding (CHC).

Family members are usually best placed to understand their relative’s daily healthcare needs and know the level of care required to look after them.  They will have a better idea of the nature, intensity, complexity and unpredictability of their relative’s particular needs – but sadly, too often those needs are not adequately reflected in the care records.

Background:
An instance arose recently when attending a Local Resolution Panel Meeting on behalf of a Claimant’s family seeking CHC. It was clear that the individual had suffered twenty falls within the space of one year, requiring a number of hospital admissions – an average of one fall every 2.5 weeks or so. Whilst thankfully, the individual was not seriously injured, the number of falls is clearly indicative of a ‘high’ score under the ‘Mobility’ Care Domain. 

Any one of these numerous falls could have resulted in serious injury, and given the frequency of falling – the risk of falling was undoubtedly ‘high’.

The issue:
Although there were numerous entries in the care records as to the incidence of falling, the care home had not provided any ‘falls risk assessments’. 

The mere fact that the individual kept falling, should have alerted the care home to undertake a regular falls risk assessment, and had they done so, it would undoubtedly have improved the individual’s scoring in this particular Care Domain.

However, the descriptor for ‘high’ needs under the ‘Mobility’ Care Domain within the Decision Support Tool states that ‘high’ needs include:

“Completely unable to weight bear and is unable to assist or co-operate with transfers and/or re-positioning. 
Or
Due to physical harm or loss of muscle tone or pain on movement needs, careful positioning and is unable to co-operate.
Or
At a high risk of falls (as evidenced in a falls history and risk assessment).
Or
Involuntary spasms or contractions placing of an individual or others at risk”.

Outcome:
The CCG’s representative argued their ‘party line’ that – because there were no formal falls risk assessments documented on file (or equipment such as a falls sensor being used as evidence of risk of falling), then there was not sufficient evidence to meet the above criteria of a ‘high’ risk here.  Regrettably, the Local Resolution Panel Meeting adopted this approach, sticking to the ‘letter’ of the descriptor within the DST, and despite the significant number of falls, downgraded the score for this particular Domain.

Our view:
It should not be the individual’s fault if the care home failed in its duty to carry out any falls risk assessment. Neither should the lack of recorded risk assessments be held against the claimant, particularly when there is clearly a documented history of falls; nor would a falls sensor have stopped the individual from falling so often!

More critically, surely the evidence of repeated falls speaks for itself! Regardless of whether or not there was an actual falls risk assessment in the care records, you cannot simply just ignore the number and frequency of falls, the risk of falling, and potential risk of injury. Common sense should have indicated to the Local Resolution Panel members that a falls risk assessment, even if documented in the care records, would not have made any difference. The matter is being considered for appeal.

Summary:
Poor record keeping and missing records, can be costly. We know from experience that care records are generally incomplete, have lots of missing entries or contain insufficient details, and can therefore often present a misleading or inaccurate picture of daily needs. Whilst the CCG and Local Resolution Panel could have adopted a more reasonable approach here – especially when faced with evidence of so many falls – it does highlight the acute need for families to go through and regularly review their relative’s care home records.

We recommend that you:

• Check what is being recorded in your relative’s care records
• Check whether the entries accurately reflect and describe your relative’s daily needs. Saying that “Joan had a good day today…” is meaningless!
• Check all relevant risk assessments are on file and up to date (eg health needs assessment, Needs Assessment under the Care Act 2014), Nursing assessment, behavioural assessment, falls risk assessment, physiotherapy assessments, psychiatric assessments, specialist medical/nursing assessments, Waterlow scores, Speech and Language Therapy assessments (SALT).