December 2018: This chapter was updated as a result of local review.
Before completing the Checklist and the Decision Support Tool (DST), consent must be obtained from the person and recorded in the consent and capacity section of the adult needs assessment.
When gaining consent for the Checklist to be completed, the practitioner must explain to the person and / or their representative what CHC is and what the assessment process involves. They must make clear to the person that their consent is being sought for:
- completion of the Checklist;
- completion of the DST if they are screened in on the Checklist for a full consideration of their eligibility of CHC;
- their personal information to be shared between different organisations involved in their care, the NHS Continuing Healthcare assessment, and the decision making process with regards to their eligibility for CHC.
The practitioner can opt to gain consent for completing the Checklist and the sharing of information only. However best practice is to gain consent for the full process as this prevents processes having to be repeated, especially where a capacity test and best interests decision is required.
It should be noted that people may withdraw their consent at any time in the process.
It is the responsibility of the health professional coordinating the completion of the DST to ensure that consent previously gained is still valid.
If there is a concern that the person may not have capacity to give consent, this should be determined in accordance with the Mental Capacity Act (MCA) 2005 and the associated Code of Practice. This decision and rationale should be recorded in the Consent and Capacity section of the Adult Needs Assessment along with the best interest decision, where appropriate. This should include a description of the evidence regarding how capacity was determined and this information submitted to the CHC team along with the Checklist.
If the process appears to be complex or contentious, for example, where there is a disagreement on what is in the individual’s best interests, then practitioners may wish to use the Mental Capacity Assessment and / or the Best Interest Checklist.
Carrying out an assessment for consideration of NHS Continuing Healthcare eligibility is a ‘welfare decision’ in the context of the Mental Capacity Act (2005). A third party cannot give or refuse consent for an assessment of eligibility for NHS Continuing Healthcare on behalf of a person who lacks capacity, unless they can demonstrate they have a valid Lasting Power of Attorney for Health and Welfare or that they have been appointed as a Deputy (Health and Welfare) by the Court of Protection. This means the person holding the authority must provide evidence that the Lasting Power of Attorney is registered with the Office of the Public Guardian or, as a Court Appointed Deputy, provide evidence of the Court Order.
A third party holding Enduring Power of Attorney or Lasting Power of Attorney for Property and Finance cannot give consent for NHS Continuing Healthcare.
In cases where the practitioner is completing the Checklist and there is no third party with the appropriate authority to consent on behalf of a person who has been deemed to lack capacity, the practitioner is responsible for making the best interest decision. The best interest decision maker must consult with any relevant third party who has a genuine interest in the person’s welfare. They should take into account any advance decisions, and should bear in mind the expectation that everyone who is potentially eligible for NHS Continuing Healthcare should have the opportunity to be considered for eligibility.
Please note: People who are subject to some sections under the Mental Health Act (MHA) or MCA, including Powers of Attorney, Court Appointed Deputy and Deprivation of Liberty Safeguards, must have those orders or statuses recorded in their customer record.