Capacity and Consent
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Capacity and Consent: Seeking Consent for the Assessment Process Before an NHS Continuing Healthcare (CHC) assessment takes place, it is essential to consider the individual’s capacity to consent. The process must be fully explained, allowing the person to make an informed decision about their participation and understand the potential consequences of refusing. If an individual lacks capacity, legal representatives or best-interest decisions must guide the process. The sharing of personal data also follows specific rules depending on whether the individual has capacity or an appointed representative. Individuals with Mental Capacity to Consent Those with the capacity to make decisions about their CHC assessment must receive clear information about the process and its implications. If an individual refuses to participate but later agrees to a local authority assessment, the local authority cannot take responsibility for needs that legally fall under NHS care. This could result in the individual missing out on funding they are entitled to. Additionally, valid consent must be obtained and recorded for any physical examination or intervention required as part of the assessment. However, consent is not required for the necessary sharing of personal data between health and social care professionals involved in the assessment or subsequent reviews. Explicit consent is required, however, before sharing personal data with third parties, such as family members, friends, advocates, or other representatives. Individuals Without Mental Capacity to Consent If an individual lacks the capacity to consent—such as those with advanced dementia—the assessor must determine whether someone is legally appointed to act on their behalf. This includes: • A person with a valid and registered Lasting Power of Attorney (LPA) for Health and Welfare, authorized by the Office of the Public Guardian. • A Deputy for Health and Welfare, appointed by the Court of Protection. Assessors should verify this authority by requesting a certified copy of the LPA. If no representative is in place, a best interests decision must be made regarding the assessment and information sharing. Enduring Power of Attorney (EPA) and Information Sharing Older-style Enduring Powers of Attorney (EPAs) cover financial decisions but not health and welfare matters. However, EPAs are often accepted by health and social care authorities for CHC applications or appeals, as these involve funding. EPAs only require registration when the individual loses capacity. Health and social care assessors must share relevant information with a registered LPA (Health and Welfare) or a Court-Appointed Deputy (Personal Welfare). Family members or carers should be given information relevant to their role. Information may also be shared when it is in the individual’s best interests, particularly if: • A carer or family member needs information to arrange care. • A LPA (Finance) or Deputy (Finance) is appealing a CHC eligibility decision. • A representative is acting in the individual’s best interests to challenge a CHC decision. Understanding these legal safeguards ensures individuals receive the appropriate care and funding, while protecting their rights and personal information. |
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