Author and Publication
Author: Ben Slater, Registered Social Worker, Founder and Managing Director of Nellie Supports
Reviewed by: Kerry Slater, Director of Operations
Last reviewed: 20 July 2026
Citation
1. Department of Health and Social Care (2022) National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. Available at: https://www.gov.uk/government/publications/national-framework-for-nhs-continuing-healthcare-and-nhs-funded-nursing-care
2. Mental Capacity Act 2005, c. 9. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents
3. Care Act 2014, c. 23. Available at: https://www.legislation.gov.uk/ukpga/2014/23/contents
4. Department of Health and Social Care (2022) NHS Continuing Healthcare Decision Support Tool.
Copywright
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
Abstract
This guide explains how mental capacity issues arise in the NHS Continuing Healthcare process. It covers capacity to consent to the assessment and to information sharing, the decision-specific nature of capacity, best interests decision making, the role of attorneys and deputies, advocacy, capacity assessment as evidence in the cognition domain, and the interaction with deprivation of liberty arrangements.
NHS Continuing Healthcare and mental capacity
Mental capacity runs through the whole NHS Continuing Healthcare process, from consenting to the assessment to deciding where someone should live. Getting it wrong creates procedural defects that are entirely avoidable.
Capacity is decision-specific
Under the Mental Capacity Act 2005 capacity is assessed in relation to a particular decision at a particular time. A person may lack capacity to decide where to live while retaining capacity to consent to an assessment, or the reverse. A general statement that someone lacks capacity is not a proper basis for anything, and it appears in files more often than it should.
Consent to the assessment
Consent should be sought for the assessment process and for the information sharing it involves. Where the person has capacity, their decision governs, including a decision to decline. Where they lack capacity for that decision, a best interests decision should be made and recorded. Proceeding on neither basis is a procedural defect worth raising.
Best interests decision making
A best interests decision should take account of the person's past and present wishes, their beliefs and values, and the views of those close to them and of anyone with legal authority. It should be recorded with reasoning. In the CHC context this arises over consenting to assessment, information sharing, and decisions about care arrangements and setting.
Attorneys and deputies
A registered health and welfare attorney may make decisions about care and treatment within the scope of the power. A property and affairs attorney or deputy deals with the financial side, which includes pursuing a funding claim. Provide the authority document early, since it determines who can be told what and who can decide.
Advocacy
Where a person lacks capacity and has nobody appropriate to consult, an independent mental capacity advocate should be considered, and there are circumstances in which instruction is required. Ask specifically whether advocacy has been considered, because in a process involving several organisations it is easily assumed to be someone else's responsibility.
Capacity assessments as evidence
A properly conducted capacity assessment is useful evidence in the cognition domain, because it documents how the person processes information, retains it, weighs it and communicates a decision. It is not the same as the domain assessment, but it provides structured evidence of impairment that a general observation does not.
Deprivation of liberty
Where a person is subject to authorised arrangements amounting to a deprivation of liberty, that indicates the level of supervision and restriction in place. The authorisation and its supporting assessments describe the constraints considered necessary, which is directly relevant to the cognition and behaviour domains and is frequently absent from an assessment bundle.
Key takeaway
Capacity is decision-specific, so avoid general statements. Secure consent or a recorded best interests decision for the process itself. Provide authority documents early, ask about advocacy, and use capacity assessments and any deprivation of liberty documentation as evidence in the cognitive and behavioural domains.
Add a Title
Add paragraph text. Click “Edit Text” to update the font, size and more. To change and reuse text themes, go to Site Styles.
Frequently asked questions
Can an assessment go ahead if the person lacks capacity?
Yes, but a best interests decision about the process should be made and recorded, with advocacy considered where there is nobody appropriate to consult. Proceeding without either consent or a recorded decision is a defect.
Is capacity assessed once for everything?
No. Capacity is decision-specific and time-specific. A person may lack capacity for one decision while retaining it for another, so a general statement that they lack capacity is not a proper basis for anything.
Who can make decisions if they lack capacity?
A registered health and welfare attorney or a deputy with relevant authority, within the scope of the power. Otherwise decisions are made in the person's best interests by the relevant decision maker, with advocacy where appropriate.
Related NHS Continuing Healthcare pages
These links take you to the most relevant Nellie Supports service page and to the supporting guides that explain the surrounding process.
Speak to an independent CHC specialist
Nellie Supports prepares independent needs evidence for NHS Continuing Healthcare assessments, reviews and appeals across England and Wales. Our reports are written by registered social workers on a permanent employed team, with internal peer review before release. Call 0333 987 5118 or send an enquiry and we will talk through where you are in the process.