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Challenging a NHS continuing healthcare decision? The issue of consent...

If you are considering challenging a continuing healthcare eligibility decision, or submitting a retrospective claim, you may already have taken the first step and received a letter from your Clinical Commissioning Group (CCG).

Recent advice from certain CCGs to families is to seek legal authority to act on behalf of their loved one, in order for their continuing healthcare claim to proceed.

The legal authority in question can be a Health and Welfare Lasting Power of Attorney or (if your family member has lost the mental capacity to make one) a Deputyship order from the Court of Protection.

Many families are supporting a loved one who has sadly lost capacity to make a Lasting Power of Attorney. They are then put off proceeding with their continuing healthcare claim due to the time and expense of obtaining a Health and Welfare Deputyship order which can cost thousands of pounds.

We can't help feeling that the National Framework quoted by the CCG's is taken out of context with the hope of deterring people.

Furthermore, this advice is at odds with the guidance from the Court of Protection which advises that people adhere to the guidance set out in the Mental Capacity Act and the supporting Code of Practice and only apply to the court for a Health and Welfare Deputyship order as a last resort.

The Mental Capacity Act 2005 provides a legal framework for making decisions on behalf of someone if they do not have the mental capacity to make a particular decision at a particular time.

'best interest' decision can be taken to challenge an outcome without the additional expense and delay of obtaining legal authority from the Court of Protection.

You DO NOT need a Deputyship order or Lasting Power of Attorney to proceed (although if you are reading this and haven't done one - PLEASE consider doing Lasting Powers of Attorney - 'prepare for care' remember!).

If you need advice or representation regarding any aspect of continuing healthcare, please contact a member of the team on 01926 491181 for a free initial consultation.

Louise Courtney

01926 491181


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