Deputyship and NHS Continuing Healthcare: What Can a Deputy Do?
If you have been appointed as a deputy by the Court of Protection, you will have authority to make certain decisions for someone who lacks the mental capacity to make those decisions themselves. Your precise powers depend on the deputyship order.
For a property and financial affairs deputy, this may include managing the person’s money and paying substantial care fees from their assets. This is where NHS Continuing Healthcare (CHC) can become particularly important.
CHC is a package of care arranged and funded solely by the NHS for adults assessed as having a primary health need. If the person you act for may be eligible, it is important to establish whether they should be receiving NHS Continuing Healthcare rather than continuing to meet the cost of their care from their own assets.
In this article
- Why NHS Continuing Healthcare matters to a deputy
- What authority a deputy may have during the CHC process
- How a deputy can prepare for a CHC assessment or multidisciplinary team meeting
- What to look for in the Decision Support Tool (DST) and care records
- What to do if needs have been inaccurately recorded or understated
- When an adverse CHC decision may be challenged
- What a deputy should investigate if care fees have already been paid
What can a deputy do about NHS Continuing Healthcare?
A deputy doesn’t decide whether someone qualifies for CHC. But depending on your deputyship order and the circumstances, you can play an important role in making sure their needs are properly assessed and evidenced. That can include:
- Taking part in a CHC assessment or multidisciplinary team (MDT) meeting
- Obtaining and reviewing the DST
- Checking care, nursing and medical records
- Raising concerns about inaccurate or understated needs
- Instructing specialist solicitors or clinical experts where appropriate
- Challenging an adverse CHC decision
- Investigating whether previously paid care fees may be recoverable
Why does NHS Continuing Healthcare matter to a deputy?
For a property and financial affairs deputy, the CHC funding position can have significant consequences for the assets you are responsible for managing.
The fact that the person has sufficient assets to pay for their care does not determine whether they are eligible for CHC. CHC is not means-tested. Eligibility should be based on the person’s assessed healthcare needs, not the value of their savings, property or other assets.
You should therefore not assume that care must continue to be privately funded simply because the person has sufficient assets to pay the fees. If their needs indicate that they may have a primary health need, their potential eligibility for CHC may need to be investigated.
What authority does a deputy have in the CHC process?
A deputy can only act within the powers given to them by the Court of Protection. Those powers are set out in the deputyship order.
For a property and financial affairs deputy, CHC is relevant because the outcome can determine whether care costs are paid by the NHS or continue to be met from the person’s assets. The deputy may therefore need to establish whether CHC has been considered and understand the outcome of any assessment.
What the deputy can do next – including obtaining information, participating in an assessment or challenging a decision – will depend on the scope of their authority. The deputyship order should therefore be the starting point.
Can a property and financial affairs deputy make health and welfare decisions?
A property and financial affairs deputy should not assume that their authority extends to health and welfare decisions. The scope of the deputy’s authority is determined by the Court of Protection order. Responsibility for paying care fees does not, by itself, give a deputy authority to make clinical decisions on behalf of the person.
For CHC purposes, however, financial and healthcare issues can overlap.
The NHS is assessing the person’s healthcare needs, but the outcome may determine whether the NHS funds their package of care or whether substantial care costs continue to be met from other sources. A property and financial affairs deputy may therefore have an important interest in ensuring that the CHC funding position is properly investigated, while remaining within the scope of their legal authority.
Can a deputy take part in a CHC assessment or MDT?
Where appropriately involved, a deputy can help ensure that the assessment is based on an accurate picture of the person’s needs.
A full CHC assessment will usually involve a multidisciplinary team completing a Decision Support Tool. The DST records and evaluates the person’s needs across a number of care domains, and assists the MDT in considering whether the totality of those needs amounts to a primary health need. The assessment should not be treated as a scoring exercise alone – the nature, intensity, complexity and unpredictability of the person’s needs must be considered.
A deputy who is involved should focus on the evidence. This can be particularly important where the person being assessed cannot explain their own needs, where their condition fluctuates, or where a brief assessment meeting does not reflect the amount of care required throughout an ordinary day or week.
What should a deputy obtain before the CHC assessment?
The evidence available to the MDT can be important in ensuring that the person’s needs are accurately assessed. Do not rely solely on what is said during the meeting.
Where the deputy is entitled to obtain the relevant information, useful evidence can include:
- Care plans
- Daily care notes
- Nursing records
- Medication administration records
- Behavioural charts
- Falls and incident records
- Risk assessments
- Nutritional and weight records
- Continence records
- GP records
- Reports from relevant clinicians and specialists
- Evidence from carers or family members who understand the person’s day-to-day needs
CHC eligibility is not determined by diagnosis alone.
The records need to show what care the person actually requires:
- What interventions are needed
- How frequently they are required
- What happens when needs deteriorate
- What risks have to be managed
- How different needs interact.
Why should a deputy review the Decision Support Tool?
If a full CHC assessment has taken place, the DST is one of the most important documents to examine. Where appropriately authorised, the deputy should seek the completed DST together with the written eligibility decision and relevant supporting evidence.
Don’t stop at the domain scores. Read the narrative used to justify them (the “descriptors”), and consider whether the descriptions accurately reflect the care records and the reality of the person’s needs. For example, has the DST:
- Understated how frequently interventions are required?
- Omitted significant incidents or risks?
- Described a fluctuating need as stable?
- Failed to explain the interaction between different care needs?
- Relied on general statements which conflict with contemporaneous records?
- Overlooked the skill required to manage a particular risk?
- Treated successful management of a need as evidence that the underlying need is less significant?
A well-managed need remains a need. The fact that carers, nurses, medication or other interventions are successfully managing a problem does not mean that the underlying need has disappeared or should be disregarded when eligibility is considered.
What should a deputy do if the DST understates the person’s needs?
If you believe the DST understates the person’s needs, you should raise the discrepancy and support your concerns with evidence. Simply saying a score feels “too low” is far less persuasive than identifying precisely what has been omitted or understated, and pointing to the care or clinical records that support your position.
For example, if the DST gives a relatively low description of the person’s mobility needs, check whether the underlying records show repeated falls, two-person transfers, the use of specialist equipment, an inability to weight-bear, significant risks during repositioning, or frequent interventions from carers. If they do, identify those records and explain why the DST does not appear to reflect them accurately. The same approach can be taken to behaviour, cognition, nutrition, continence, medication and other needs.
Contemporaneous evidence is particularly important. An isolated statement in an assessment should not necessarily be accepted where weeks or months of care records present a materially different picture of the person’s needs.
Equally, disagreement with a DST does not automatically mean that it is wrong. The question is whether the description of the person’s needs, the levels of need selected, and the resulting eligibility decision are properly supported by the evidence and the relevant CHC criteria.
Why is this particularly important for a financial deputy?
An inaccurate CHC decision can have continuing financial consequences for the person whose affairs you manage. If CHC is refused, substantial care fees may continue to be paid from the person’s assets following that decision. It is therefore important to understand not only what decision has been made, but also how it was reached and whether it is supported by the available evidence.
As a starting point, a deputy should consider:
- Whether the person has had a CHC assessment and, if so, when
- What evidence the MDT considered
- Whether the DST reflects the care records
- Whether the person’s needs have changed significantly since an earlier assessment
- Whether CHC was previously awarded and subsequently withdrawn
- Whether there is an adverse decision that may still be challenged
- How much is currently being paid towards care
A deputy should not assume that an adverse NHS decision is necessarily wrong. However, where substantial fees continue to be paid and the assessment does not appear to reflect the person’s actual healthcare needs, the funding position deserves closer scrutiny.
Should a deputy instruct a CHC solicitor or clinical expert?
There are cases where specialist advice can be appropriate, particularly where substantial care fees are at stake or the evidence is disputed. A specialist CHC solicitor can examine the assessment process, review the relevant documents, and advise whether there may be grounds for challenging an adverse CHC decision.
Clinical input can also be valuable because CHC cases often turn on the detail contained within extensive care and medical records. An experienced nurse may identify repeated interventions, patterns of deterioration, significant risks or interactions between needs that have not been properly captured in the DST. Seeking specialist support before the MDT can also help identify inaccuracies before they become embedded in the assessment, rather than waiting until CHC has been refused.
Any deputy considering expenditure on professional advice should ensure that doing so falls within the scope of their authority.
Can a deputy challenge a refusal of NHS Continuing Healthcare?
All decisions concerning eligibility for CHC funding are open to challenge, via the NHS disputes and resolution process. Whether an appeal has merit will depend on the individual assessment and evidence.
An adverse decision should not automatically be accepted if it does not appear to reflect the evidence. The Integrated Care Board (ICB) should provide a reasoned eligibility decision following the assessment. Potential concerns can include:
- Significant needs being omitted or understated
- DST descriptions which conflict with care or clinical records
- Relevant evidence being overlooked
- Well-managed needs effectively being discounted
- Inadequate consideration of the interaction between needs
- Insufficient consideration of the nature, intensity, complexity or unpredictability of the person’s needs
- The National Framework being incorrectly applied
The NHS appeal process includes the ICB’s local resolution procedure and, if needed, an application for an Independent Review Panel convened by NHS England.
What if the person has already paid substantial care fees?
A deputy may only become aware of NHS Continuing Healthcare after the person has been privately funding their care for months or years. This does not automatically mean that the NHS should have funded the care, but it may be appropriate to investigate whether CHC should have been considered or awarded during an earlier period.
The deputy should establish:
- Whether a CHC Checklist or full assessment was previously completed
- What eligibility decisions were made and when
- Whether CHC was ever awarded and later withdrawn
- Whether the person’s needs changed significantly during the relevant period
- What historic care and medical records remain available
- How much was paid towards care and what evidence of those payments remains
Relevant financial evidence can include invoices, bank statements, care contracts and fee schedules. If the evidence supports that the person should have received CHC funding for a relevant period, there may be a basis for seeking reimbursement of care fees. However, the merits of any retrospective claim will depend on the circumstances and the available evidence.
Practical steps for deputies dealing with CHC
If you are managing the affairs of someone with substantial care needs, consider the following steps:
- Check the deputyship order. Establish the scope of your authority before taking action.
- Establish the CHC history. Find out whether there has been a Checklist, full assessment, DST, review, reassessment or previous eligibility decision.
- Find out what is being paid. Identify the current care fees and how long they have been paid from the person’s assets.
- Obtain the relevant CHC documents. Where authorised, seek copies of the Checklist, DST, written eligibility decision and related assessment documents.
- Preserve the underlying evidence. Retain care plans, daily notes, clinical records, risk assessments, incident records and other relevant evidence.
- Compare the DST with the records. Look for specific omissions, inconsistencies and understated needs.
- Raise concerns promptly. If the assessment is still underway, significant inaccuracies should be identified before the final decision wherever possible.
- Keep evidence of care fees. Preserve invoices, statements and other proof of payments in case reimbursement later becomes relevant.
- Consider specialist advice where appropriate, particularly where needs are substantial, the decision is disputed, or significant sums continue to leave the person’s estate.
How Farley Dwek can assist deputies with NHS Continuing Healthcare
If you are acting as a deputy and have concerns about the CHC funding position, Farley Dwek can help.
Our specialist solicitors and experienced nurses can assist with CHC assessments, review the DST and supporting records, challenge adverse decisions and, where appropriate, investigate whether previously paid care fees may be recoverable.
We can also advise deputies before an MDT, helping to identify the evidence needed to ensure the person’s needs are properly presented.
Speak to Farley Dwek on 0161 272 5222 for an initial discussion if you are concerned about the CHC funding position of someone for whom you act as deputy.
