PROTOCOL FOR THE MANAGEMENT OFINDIVIDUAL PATIENT FUNDING REQUESTS:

EXTRA CONTRACTUAL REFERRALS (ECR)

National SpeciAlised SErvices

JointLY fundEDPackaGes of CARE

Date: 20 January2010

Review & Amended Date: April 2011 – changes highlighted

Approved by: NHS Borders Board on 4 February 2010

Equality Impact Assessment Date: 20 January 2010

Contents

Section 1 – Introduction and Definitions / 3
Section 2 – Ethical Framework / 7
Section 3 – Referrals Process and Funding Application Procedure / 8
A. Within working hours / 8
B. Outside working hours / 10
C. Additional process for children young people and adults at risk / 11
Section 4 – Appeals Process / 13
Section 5 – Monitoring Arrangements / 14

Appendices

Appendix 1 – Flowchart of ECR Procedure

Appendix2 - Funding Application Form

Appendix 3– NHS Borders Panel Decision Record Form

Appendix 4 – Eligibility for NHS Continuing Healthcare

SECTION 1 – INTRODUCTION AND DEFINITIONS

This document is based on the current guidance from the Scottish Government on establishing responsibilities for commissioning of an individual’s care within the NHS. The underlying principle is that no treatment should be refused or delayed due to uncertainty or ambiguity over which NHS body is responsible for funding an individual’s health care provision.

This paper presents the approach to be adopted by NHS Borders in managing requests for funding of patient treatments/services that fall within thefollowing categories:

Extra Contractual Referrals (ECR)

Out Of Area Treatments (OATS)

Unplanned Activity (UNPACS)

National Specialised Services

Jointly Funded Packages Of Care

DEFINITIONS

1.1The Responsible Commissioner1

The most recent guidance from the Scottish Governmentis NHS HDL (2004) 15 “Guidance on establishing the responsible commissioner”. This guidance covers the following instances:

  • Persons of No Fixed Abode
  • Temporary Residents
  • Patients who Move Cross Boundary (i.e. within Scotland)
  • Placements in Care Homes
  • Free Personal and Nursing Care
  • Cross Border Patients
  • People who Move Cross Border
  • Out of Area Treatments: Cross Boundary & Cross Border
  • Patients Transferred from the StateHospital
  • Restricted Patients
  • Early Discharge Protocol for Patients in Secure Hospital Settings
  • Prisoners
  • People Detained under the Mental Health (Scotland) Act 1984 or theMental Health Act 1983
  • Immigration Detainees
  • Boarding School Pupils
  • Schools & Colleges for Children/Young People with Special EducationalNeeds
  • Looked After Children
  • People Taken Ill Abroad
  • Military Personnel
  • People Not Ordinarily Resident in the UK (Overseas Visitors)
  • Asylum Seekers
  • Services Provided on an “All-Comers” Basis
  • GUM Services and HIV/AIDS Patients
  • Transplants
  • Waiting Times Guarantees
  • Transfer on Non-Clinical Grounds

The table below summarises the responsibilities of Scottish and English Commissioners:

Patient resident in / Registered with GP in / Receiving treatment in / Responsible Commissioner
Scotland / England / England / Scotland
Scotland / England / Scotland / Scotland
England / Scotland / England / England
England / Scotland / Scotland / England

1.2 Extra Contractual Referrals (ECRs)

Extra Contractual Referrals (ECR) relate to treatments/services not provided by NHS Borders locally or through a Service Level Agreement (SLA) with other NHS providers. Within the NHS ECRs are elective and typically represent low volume services and treatments (for emergencytreatments see OATS and UNPACS below). They do notinclude specialised procedures which the National Services Division (NSD) has responsibility to fund, detailed laterin paragraph 1.5. They are often provided by non-NHS health service providers, which can include nursing homes.

ECR funding is taken from current revenue allocations and therefore presents a potential in-year financial risk for NHS Borders. Prior approval for funding from NHS Borders must be sought before referral following the process outlined in Section 3.Approval is not automatic.

1.3OutOf Area Treatments(OATS)

NHS MEL(1999)42 and NHS HDL(2002)393 set out the arrangements within the NHSfor commissioning out of area treatments, both cross boundary and cross border.

OATS applies to NHS cross-border activity between Scotland and the other UK countriesi.e.England, Wales and Northern Ireland. This covers emergency treatment only and therefore by its nature is unplanned and presents a potential in-year financial risk for NHS Borders. There is no right of refusal by NHS Borders as this is for emergency treatment.

Elective treatment within other UK countries falls into one of three categories:

  • NHS Borders can agree explicit Service Level Agreements (SLAs) with the NHS in other countries for the provision of elective treatments to Borders residents. These are principally with the North Cumbria Acute Hospitals NHS Trust, Northumbria Healthcare NHS Foundation Trust and Newcastle upon Tyne Hospitals NHS Trust in England because of geographical access to services for some Borders residents.
  • The National Services Division (NSD) of NHS Scotland commissions certain highly specialised and rare treatments on behalf of the whole Scottish population, see below for more details.
  • All other elective treatments in other UK countries should be progressed through the ECR process and require prior approval before referral.

1.4Unplanned Activity (UNPACS)

UNPACS (UNPlanned ACtivitieS) is similar to OATS but relates to emergencyNHS treatments provided to Borders residents elsewhere in Scotland. Like OATS there is no right of refusal by NHS Borders as this is for emergency treatment. Funding is taken from current revenue allocations and therefore presents a potential in-year financial risk for the Board.

Elective treatment of Borders residents in other areas of Scotland fall into two categories:

  • NHS Borders agrees explicit Service Level Agreements (SLAs) with the NHS in other Board areas – currently NHS Lothian and NHS Dumfries & Galloway for the provision of elective treatments to Borders residents. In the former this is for access to tertiary services and in the latter for geographical access for the population in the Newcastleton area.
  • All other elective treatments in other NHS Boards should be progressed through the ECR process and require prior approval before referral.

1.5National Specialised Services

This is a complex set of 41 groups of conditions managed nationally due to the rarity of condition or treatment facility. In addition NSD funds 35 sets of services at around 80 different NHS Trusts in England4. They are managed by the DoH in London and any Borders patients with conditions covered by these services are funded centrally by National Services Division of the CSA under a system of top slicing.

The National Commissioning Group (NCG) is responsible for commissioning nationally designated clinical services which are either very low volume or require rare skills. In some circumstances, the portfolio of NCG services overlaps with Scottish nationally-designated services, e.g. adult liver transplantation or ophthalmic oncology and pathology. Some services for very rare conditions are only available at national specialist centres in the UK or very occasionally abroad.

Requests for referral to these services may come from local clinicians or tertiary care centres. There is a need to ensure that the correct process is followed and that this is checked with NSD as referrals to services in England may need to be via a national centre in Scotland. The process should be to request approval with NSS in writing. Contact information and the list of services and providers can be found at

NSD makes a contribution towards the cost of Scottish residents accessing these services, although some are funded entirely by NCG on a UK basis. For more information on the NCG, please follow this link to the external National Commissioning Group website.

1.6NHS Continuing Healthcare5

NHS Continuing Care is a package of continuing health care provided and solely funded by the NHS. NHS Borders, not Scottish Borders Council (or any other local authority) or an individual, pays the total cost of that care. NHS Continuing care may be for prolonged periods but not necessarily for life and entitlement should be subject to regular review. The care will be provided in a hospital ward, hospice or a contracted inpatient bed, which may be based in a care home. Any individual of any age with any illness or disability may be entitled to NHS Continuing health care. Eligibility is decided on assessed needs and not on the diagnosis of any particular illness. CEL 6 (2008) provides eligibility criteria for NHS continuing care in paragraph 44 and this is re-produced in Appendix 4.

1.7Jointly Funded Packages Of Care

Jointly funded packages of care are when an agreement is made between NHS Borders and Scottish Borders Council to jointly fund the care that an individual person requires. Pragmatically this has often been on the basis of the split in costs being 50:50 of the net cost. The net cost total excludes any free personal care contribution; assessed client element or any other benefits. The packages of care are when a person does not qualify for NHS Continuing Health Care but the NHS accepts some responsibility to contribute to that person’s health needs usually for people under 65 years old. The care may be provided over an extended period of time to meet the physical and mental health needs of people which have arisen as a result of disability, accident or illness.

1.8NHSpatients receiving Healthcare Services through Private Healthcare arrangements6

A letter from the Chief Medical Officer (CMO(2009)3; 25 March 2009) provides guidance and a framework to support decisions concerning the possible combination of NHS and private care for individual patients. This includes medicines which are not available in the NHS or through the NHS Borders Guidance for Processing Requests to Prescribe Unlicensed, Off-label or Exceptional Treatments (medicines awaiting consideration by, or not recommended for use by, the Scottish Medicines Consortium)7

NHS Borders policy on NHS care following private treatment has been formulated to guide future decisions. This paper includes 6 principles to help in the decision making process and to assist clinicians who may be faced with requests from patients for treatment and care.

The situation covered by this guidance is different to the NHS funding treatment or care within the private sector through these ECR procedures – in this situation the NHS has accepted responsibility for fully funding the treatment and usually because it is not available locally of through existing SLAs. In the case of agreed jointly funded packages of care (see paragraph 1.7 above) both the NHS and local authority have accepted responsibility for funding, and there may be a financial contribution from the patient following routine local authority financial assessment procedures.

SECTION 2 – ETHICAL FRAMEWORK

This section details the ethical framework governing the decision making process to be adopted by NHS Borders. The process outlined in Section 3 of this paper isfounded on a set of core principles to ensure that a transparent and reasonableethical framework governs the decision making process about funding decisions for the categories of treatment/care outlined in Section 1.

2.1Individual need and benefitsfrom treatment

• All decisions will be taken on an individual patient basisand their prognosis should be considered.

• The default position will be that treatment is not offered unless and until all other options under existing agreements and contracts have been explored by the referring clinician.

• Evidence that a treatment or service confers a benefit to the patient and is themost appropriate treatment at this time should be considered. Effectiveness of the treatment/service should be considered against a variety of sources including national guidance (such as SIGN or if not available NICE guidance), other sources of clinical evidence (such as from the Cochrane Centre) and NHS Health Scotlandas appropriate.

• Where the request for funding is being made for drug therapy, existingrecommendations by SIGN and the Scottish Medicines Consortium must be taken into account. Reference should be made to NHS Borders Guidance for Processing Requests to Prescribe Unlicensed, Off-label or Exceptional Treatments (medicines awaiting consideration by, or not recommended for use by, theScottish Medicines Consortium) 20097.

2.2 Equity/justice

• NHS Borders will aim to provide equal access to treatments/services for theirresidents based on patient need.

• NHS Borders has a statutory duty to achieve financial balance and decisions to limit access to treatments/services legitimately include aspects of financial cost.Decisions to treat inevitably divert resources from other health care options.

• Both cost effectiveness and the individual cost of treatment will be considered inNHS Borders decisions about which treatments to limit and in reaching decisions on individual patient needs.

• In some cases, the needs of a community for a range of treatments may outweigh the needs of an individual for a highly expensive treatment.

• Where an alternative, more cost effective solution can be found, it is appropriatefor NHSBorders to consider alternative options.

2.3 Patient choice / autonomy

Patients and their clinicians have the right to request treatments/services and to have their case of need heard and considered. The criteria and process used for arriving at funding decisions must be transparent and equitable and the processes outlined in this protocol are intended to achieve this end.

SECTION 3 – REFERRALS PROCESS AND FUNDING APPLICATION PROCEDURE

NHS Borders expects all GPs and consultants to refer patients to local services or services commissioned by NHS Borders from other NHS areas in the first instance. In situations where it appears that no suitable service is available through either of these channels the GP/Consultantshould contact NHS Borders,via the Senior Manager - Secondary and Community Contracted Services (referred to henceforth as the “Commissioning Manager”), in writing in advance of the referral to seek authorisation for the ECR. The process is outlined in the flowchart in Appendix 1.

Where a social worker, clinician or patient or their relative are wanting to request that NHS Borders jointly fund a package of care the relevant social worker should contact NHS Borders, via the Commissioning Manager, in writing in advance of the referral to seek authorisation for joint funding. Separate arrangements for agreeing joint funding of care for people with learning disabilities have been in operation for some time – these are taken forward through the joint LD service complex care panel. There is also a dedicated budget for admissions to the regional Managed Care Network beds or to units outside the NHS. Only those admissions which cannot be managed within these arrangements and the identified budget will be referred to the ECR process described below

Where a clinician is wanting advice on how to arrange specialised treatment funded by NSD they should seek advice from the Commissioning Manager at NHS Borders.

A. Within working hours

3.1Funding requests for an ECR or jointly funded package of care treatment/service as outlined in Section 1 will need to be made by the referring clinician prior to the patient receiving treatment.

3.2 A request for funding should be accompanied by the following information:

• The patient’s medical history, including the prognosis of the patient;

• An outline of the proposed treatment/service including an indication of thelikely duration of the treatment;

• Other options for treatment/service that have been considered by thereferring clinician and the reasons for exclusion of all alternativesconsidered;

• Evidence of the clinical and cost effectiveness of thetreatment/service (such as from SIGN or NICE guidance) and other sources ofclinical evidence (such as from the Cochrane Centre)should be given wherever possible;

A funding application form is available on request and on the NHS Borders Intranet and must be used in all cases (see Appendix 2).

3.3 On receipt of the application form, the ECR Administratorwill log the ECR requestonto the database.

3.4 The CommissioningManager will review the request initially to see if it is appropriate to

NHS Borders, as follows:

• The patient is a Borders resident. They may be registered with a non-Borders GP - the key fact is that they live in the Scottish Borders.

• The requested service/procedure is not currently provided under anexisting NHS contract or local NHS provider (if so, write to the referrer torefer the patient to the local/NHSservice).

• The service/procedure is not the responsibility of NSD

• If a request is made to fund treatment outside of the UK, E112 and Article 56 guidanceshould be applied9.

  • All requests will be anonymised by the ECR Administrator using the CHI number or other unique identifier before any information is passed to the Panel.

3.5 Where the patient is under the age of 18 years, the process for Children andYoung People outlined later in this section should be followed.

3.6 The CommissioningTeam will collate all information in preparation for considerationby the NHS Borders ECR Panel, including:

  • The full costs of the treatment/service for which funding approval is being sought;

• The proposed provider of the treatment/service andevidence of the quality of service provided;

•Where appropriate, whether NSD has already been approached for funding.

3.7 Funding requests received by NHS Borders will be considered by the ECRPanel. The panel will meet weeklyif required and will comprise at least three of thefollowing (one of whom must be a clinician):

Clinical Chairs of BGH, Primary & Community Services and Mental Health or deputies

Director of Nursing and Midwifery or Deputy

Director of Pharmacyor Deputy

Commissioning Manager or Deputy

In addition relevant clinical representatives or local authority officers may be invited to attend if it is required to aid decision making. A Finance Officer may also attend to provideadvice and support where necessary.

3.8 The NHS Borders ECR Panel will review all the information supplied on the agreed application form and collated by the ECR Administrator and will consider the appropriateness of the request based on the information supplied. The Panel will consider each case on its individual merit and will base their decision on consideration of the facts presented to them in line with the agreed core principles outlined in Section 2.

3.9 In reaching its decision on each individual case, the NHS Borders ECR Panel will consider: