Consent
Scope of this chapter
Put simply, consent is 'giving your permission for another person (or an organisation) to do something'. That could be to share your information, do something to you (such as carry out a medical procedure) or to carry out an action on your behalf (for example arrange or cancel an appointment).
There are only a small number of situations when it is lawful for someone to do something without having obtained your permission first.
This chapter will explain the principle of consent, how and when to obtain consent lawfully and what to do if consent is refused.
The need to obtain consent is a legal duty and also a core principle and value. This means that it applies to everyone and is always relevant when planning for or providing care and support.
Relevant Regulations
Related Chapters and Guidance
- Choice and Control
- Communicating Effectively
- Confidentiality and Information Sharing
- Good Recording
- Mental Capacity
- Participation and Advocacy
- Providing Care and Support
Amendment
In November 2024, a link to the new Good Recording Procedure was added to the related chapters and guidance and also in Section 8, Recording consent.
Consent in social care usually means giving permission to accept support, or for information to be shared with another person or organisation.
For example:
- Agreeing to have a shower or bath;
- Agreeing to take medication;
- Agreeing for a family member to be told about an activity;
- Agreeing for a GP appointment to be made.
Consent should be sought before doing any action to the person or on behalf of the person, unless it is a situation set out in: When it is lawful not to seek consent below.
Consent should be sought each time that the action is required, and you should not assume that because a person has given their consent before that they will do so again. Everyone has the right to change their mind.
Seeking consent should therefore be a routine part of everyday care and support:
- Can I support you with a wash now?
- Can I talk to your mum about what is happening?
- Are you happy to take your medication now?
- Can I make an appointment with the dentist?
Conversations about consent should take account of the person's communication needs. For example, you may need to use pictures, objects of reference or sign language to help the person understand what you are seeking consent for.
The person must also be given enough time to think about their consent decisions.
Information about communication should be clearly recorded in the individual care or support plan.
It is important that consent is voluntary and informed.
This means that the person is making a genuine choice to provide or withhold/withdraw consent, and their decision has not been influenced by anyone else.
It is important that the way in which you ask for consent is balanced and unbiased. The person must not feel they have been put under any pressure about their decision.
This means that the person must be given all the information relevant to the matter they are being asked to consent to, so that they can take this into account.
The person can and will provide consent in whatever way works best for them. This could be verbally, but could also be through behaviour, gesture or facial expression.
For example:
- Saying yes, no, that is fine;
- Saying I’m not sure-I need to think about it;
- Giving written consent (letter, email, text);
- Ignoring you;
- Pushing you away;
- Becoming distressed and only reassured when told they don't have to do something.
Implied consent is consent that is given non-verbally.
For implied consent to be valid, the person must still have been provided with and understood relevant information about the decision.
Joe is going for a blood test. He is told what is going to happen and why the blood test needs to be carried out. Joe doesn’t say anything but rolls up his sleeve and holds out his arm.
Lauren goes out daily to a local day service. One day, instead of going to the day service she is going to the dentist for a routine appointment. Lauren has not been told where she is going but happily gets into the car.
Withheld consent means not giving permission to accept support, or for information to be shared with another person or organisation. It is sometimes called ‘refused consent’.
Withdrawn consent means deciding to withhold consent when previously consent was given. In other words, changing your mind.
Consent can be withheld and/or withdrawn at any time.
The first thing you should do is make sure that the person has understood any negative consequences of withholding/withdrawing consent.
For example:
- If they refuse medication;
- If they refuse for a health appointment to be made;
- If they refuse to eat;
- If they refuse to shower or bathe;
- If they refuse to clean their teeth;
- If they refuse to wear warm clothing in winter.
If the person has understood the consequences, their decision should be respected.
Further action may be needed without their consent to safeguard them from abuse or reduce the risk of neglect occurring from a failure to meet their care and support needs. See: When it is lawful not to seek consent below.
Consent must be given by a person with mental capacity to make the decision.
If you have concerns about the person’s mental capacity to make a consent decision, this should be managed through good application of the Mental Capacity Act 2005.
For guidance see: Mental Capacity
If there is an Attorney or Deputy with the legal authority to provide, withhold or withdraw consent on behalf of the person they have responsibility to make this decision. Any decision they make should be treated as if the person has made it themselves.
It is the responsibility of the medical professional that will be carrying out the procedure or providing the treatment to seek consent from the person, and to take any other action that may be required should they withhold/withdraw consent. Where relevant, this includes assessing their mental capacity and making any subsequent best interest decisions.
An Advance Decision to Refuse Treatment (ADRT) is a legal document setting out in advance the specific types of treatment that a person consents and does not consent to receiving. Health professionals must be aware of this document so they can have regard for it. Unless there are exceptional circumstances, it must be upheld.
There are a very small number of situations when it is lawful to act without having first sought consent.
In all these situations, the person being supported should still be informed of the action that has taken place (or will take place) without their consent.
If a person has been assessed as lacking capacity to consent to a particular action, their consent does not need to be sought.
For further guidance see: Mental Capacity
If the person is at risk of abuse or neglect, it is lawful to share information and take any immediate action to safeguard them, and any other vulnerable adults or children in the vicinity.
This may include:
- Raising a safeguarding concern;
- Seeking advice from a professional e.g., a GP;
- Calling the emergency services.
If care and support activities to meet a person’s needs are not met as a result of their decision to withhold or withdraw consent, this may place them at risk of unintentional neglect by the service. It also places the service at risk of prosecution from the Care Quality Commission (CQC) as they could be in breach of one or more Regulations. If this is the case, the registered person should contact the local authority and the CQC for advice and support.
Ordinarily consent should always be sought before sharing information about the person being supported.
However, there are some occasions when consent does not have to be sought although the person should still be informed that their information has been shared.
If there has been an accident or an unexpected health deterioration and the person’s life is (or could be) at risk without medical intervention, it is appropriate to call 999 even if the person does not consent. Not doing so places the service at risk of failing in its duty to provide safe care and treatment.
When the ambulance personnel arrive, it is then their responsibility to explain to the person what is happening and to seek the necessary consent to treat them or go to hospital.
If a person is detained (sectioned) under the Mental Health Act 1983, treatment can be given without consent.
In all other circumstances, consent should be sought. If a person on a Community Treatment Order (CTO) refuses treatment (including taking prescribed medication), the responsible Clinician should be informed. They will then decide whether the person should be recalled to hospital and subject to further detention to ensure treatment takes place.
It should be clear from recordings that consent is being sought and given prior to any care or support activity taking place, including information sharing.
If consent has not been given (or has been withdrawn) this should also be clearly recorded, along with any subsequent action taken to safeguard the person and reduce the risk of neglect allegations against the service.
For further guidance about recording, see: Good Recording.
There may be things that a person is always happy to consent to and/or things they are never happy to consent to. If this is the case, they, may wish to set up a consent agreement.
By setting up an agreement, the person is consenting to not being routinely asked for consent on each occasion that the act is to be carried out.
For example, the person may give consent for the service to liaise with health professionals around routine appointments without first seeking consent, or to provide weekly updates on their welfare to a family member.
This agreement should set out:
- The specific circumstances when consent does not have to be routinely sought;
- The specific circumstances when consent does have to be sought;
- How consent should be sought;
- How and when the agreement will be reviewed;
- That the person can change the agreement at any time and how they can do this.
If a situation arises that is not covered in the agreement, consent should be sought.
Consent agreements should be reviewed as part of a care or support plan review, whenever the person wants to make a change and whenever there is an indication that they may wish to make a change (even if they do not request the review). For example, they may have started to withdraw consent for certain things in the agreement.
Note: Even though an agreement may say one thing, a person being supported must still be able to make a different decision at any time.
Last Updated: October 26, 2024
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