The National Health Service (Direct Payments) Regulations 2010

Direct payments in respect of children and persons who lack capacity

8.—(1) A direct payment may be made in respect of a person who is a child or a person to whom paragraph (2) or (3) applies, if that person—

(a) is a person—

(i) for whose benefit the pilot PCT is responsible, under or by virtue of the National Health Service Act 2006, for providing or securing the provision of services; or

(ii) who is entitled to receive after-care services from the pilot PCT;

(b) meets the criteria set out in the pilot scheme;

(c) is not a person described in the Schedule; and

(d) has a representative who consents to the making of direct payments in respect of them.

(2) This paragraph applies to a person, other than a child, who lacks capacity to consent to the making of a direct payment to them and in respect of whom there is a deputy, donee, attorney or person with parental responsibility as mentioned in the definition of “representative” in regulation 1(2).

(3) This paragraph applies to a person, other than a child, who lacks capacity to consent to the making of a direct payment to them but is a person in respect of whom there is no deputy, donee, attorney or person with parental responsibility as mentioned in the definition of “representative” in regulation 1(2).

(4) Where paragraph (3) applies to a person, the Secretary of State or after-care PCT may appoint another person they consider appropriate to receive and manage a direct payment in respect of that person.

(5) A representative to whom a direct payment is made in respect of a patient must—

(a) agree to act on the patient’s behalf in relation to the direct payment;

(b) act in the best interests of the patient when securing the provision of services in respect of which the direct payment is made;

(c) be responsible as a principal for all contractual arrangements entered into for the benefit of the patient and secured by means of the direct payment;

(d) use the direct payment in accordance with the care plan; and

(e) comply with the provisions of these Regulations.

(6) Paragraph (7) applies where a person has been receiving direct payments on the basis that they were a patient eligible under regulation 7, but the person no longer has capacity to consent to the making of a direct payment to them, or the Secretary of State or after-care PCT reasonably believes that the person no longer has the necessary capacity.

(7) Where this paragraph applies, the Secretary of State or after-care PCT may continue to make direct payments in respect of the person if—

(a) the Secretary of State or after-care PCT is reasonably satisfied that the person’s lack of capacity is likely to be temporary;

(b) a representative or nominee in respect of the person continues, or agrees pursuant to paragraph (5)(a) or regulation 9(4)(a), to receive direct payments on behalf of the person; and

(c) direct payments are made subject to the condition that the representative or nominee must allow the person to manage the direct payments themselves for any period in respect of which the Secretary of State or after-care PCT is satisfied that the person has capacity to consent to the making of the direct payments and is capable of managing direct payments.

(8) Where a patient without capacity gains or regains capacity to consent to the making of a direct payment to them—

(a) if the patient and their representative or nominee consents, the Secretary of State or after-care PCT may continue to make direct payments to the representative or nominee of the patient in accordance with the care plan;

(b) if the patient does not consent to the continued making of direct payments to the representative or nominee, the Secretary of State or after-care PCT must stop making the direct payments; and

(c) the Secretary of State or after-care PCT must as soon as reasonably possible review the making of the direct payments in accordance with regulation 17.

(9) Where a patient reaches the age of 16, paragraph (8) shall apply as if the patient were a patient without capacity who gained capacity to consent to the making of a direct payment to them.