What Do We Mean by CHC and Optimisation?
CHC and optimisation can be a difficult issue for families to navigate, particularly when a loved one’s NHS Continuing Healthcare assessment is delayed. While there can be legitimate clinical reasons to wait for a clearer picture of someone’s longer-term needs, optimisation should not become an automatic barrier to progressing the CHC process.
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Families seeking NHS Continuing Healthcare (CHC) funding are increasingly encountering a phrase that can sound both reasonable and frustrating:
"Your relative's needs have not yet been optimised."
Sometimes this is said following a hospital admission. Sometimes it arises during discussions about rehabilitation, treatment or recovery. In other cases, it becomes the reason given for why a Checklist is not progressing, why a full assessment has not been arranged, or why a funding decision remains outstanding.
The concept of optimisation is not inherently problematic. Healthcare professionals should not be expected to make long-term decisions based upon a temporary or unrepresentative picture of an individual's needs.
The difficulty arises when optimisation becomes a reason to delay a process that should already be moving forward.
Concerns Raised by Professor Luke Clements
Professor Luke Clements, author of Community Care and the Law and one of the UK's leading commentators on community care law, recently highlighted concerns about the increasing use of optimisation and other practices which, in his view, risk frustrating the purpose of the National Framework for NHS Continuing Healthcare.
In his article, "Optimising and NHS Continuing Health Care (CHC)", Professor Clements discussed a recent Ombudsman decision involving an Integrated Care Board's approach to CHC assessments and hospital discharge.
The decision raises some important questions:
- When is it appropriate to wait for a person's needs to become clearer, and when does delay become a barrier to assessment?
- What Did the Ombudsman Find?
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The Ombudsman considered the case of an individual whose health and care needs had been extensively assessed whilst in hospital.
Professionals were consistently of the view that:
- he required 24-hour nursing care;
- his long-term needs were understood;
- rehabilitation was unlikely to lead to significant improvement; and
- he was likely to be eligible for CHC funding.
Despite this, the ICB operated a policy of refusing to accept CHC referrals until onward care arrangements had already been put in place. The Ombudsman found that this approach placed organisational pressures ahead of individual need and was inconsistent with national guidance.
Most strikingly, the Ombudsman identified a contradiction. The ICB argued that assessment should not take place because needs might still change. At the same time, it refused interim discharge-to-assess funding because professionals had already determined that the individual's needs were settled and unlikely to improve.
As the Ombudsman recognised, both positions could not comfortably stand together. The Ombudsman's criticism went beyond the facts of one case. It found that the ICB's approach placed organisational resources and performance targets ahead of the needs of individual service users. Most families appreciate that the NHS operates under considerable pressure. However, the National Framework is intended to ensure that eligibility decisions are driven by an individual's needs rather than administrative convenience, local processes or resource considerations.
What Does the National Framework Say?
The CHC process is intended to be structured. For most individuals the first stage is a Checklist. If that Checklist is positive, the next stage is a full multidisciplinary assessment using the Decision Support Tool (DST).
The Framework also recognises that assessments should normally take place when a person's longer-term needs are reasonably clear. Equally, however, it contemplates circumstances in which assessment may appropriately take place whilst someone remains in hospital.
This is why CHC and optimisation should be viewed as a clinical consideration rather than a separate test for CHC eligibility. The question is not simply whether further treatment or rehabilitation might be available. The question is whether there is a proper basis for delaying progression of the CHC process.
A Practical Example of CHC and Optimisation
At Winston Solicitors, we recently acted for a family who’s relative had received a strongly positive CHC Checklist. The assessor recommended progression to a full assessment and considered that the individual was likely to be eligible for CHC. Despite this, the case did not proceed in the usual way. Instead, concerns were raised that the individual was not yet at their "optimum" and that further information was required before matters could progress.
In our view, the position was inherently circular. The individual's instability was treated as a reason not to assess, even though complexity, fluctuation and unpredictability are among the very features that may point towards a primary health need.
Judicial review proceedings were subsequently contemplated.
The central issue was not whether optimisation could ever be relevant. It was much simpler than that:
- What was the legal basis for preventing a positive Checklist progressing through the established CHC process?
- The matter was ultimately resolved without court proceedings.
Questions Families May Wish to Ask
Where optimisation is being relied upon as a reason for delay, families may wish to ask:
- What specific improvement is anticipated?
- What intervention is expected to achieve that improvement?
- Over what timeframe?
- Why does the anticipated improvement prevent assessment of the person's current needs?
These questions often help clarify whether optimisation is being used as a genuine clinical justification or simply as an explanation for delay.
Challenging Decisions
One of the frustrations for many families is that successful challenges do not always lead to an acknowledgement that the original decision was wrong. Often the result is more subtle. An assessment is arranged. A Checklist is progressed. An appeal succeeds. Funding is awarded. The family achieves the outcome they have been seeking, yet nobody expressly accepts fault.
Professor Luke Clements has written about the accountability gap that can arise within the CHC system. Many families will recognise that frustration. Meaningful challenge is possible, but it is often difficult, time-consuming and resource-intensive. A complaint to the Ombudsman may take many months to reach a conclusion, while judicial review is a specialist remedy available only in limited circumstances.
The significance of the Ombudsman decision discussed above is not that it demonstrates a perfect system of accountability. Rather, it demonstrates that policies and practices can be scrutinised and, where appropriate, found wanting.
For many families, however, the reality remains that the burden of challenging a decision often falls upon those least equipped to do so.
CHC and Optimisation is Not Necessarily the Issue
Optimisation is not, in itself, the problem.
There will be cases where further treatment, rehabilitation or assessment is genuinely needed before a person's longer-term needs can be properly understood.
The concern arises when optimisation becomes an indefinite holding position, delaying progression of the CHC process without a clear legal or clinical justification.
As both Professor Luke Clements' commentary and the recent Ombudsman decision demonstrate, the challenge is ensuring that decisions remain focused on the individual's needs rather than becoming driven by process, targets or administrative convenience.
For families facing this issue, the most important question may be the simplest: What exactly is preventing the assessment from moving forward?
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