Free article: The need for consent

Published: Friday, 05 June 2015

A guide to fundamental standards - Regulation 11: Need for consent

Summary

  • Consent refers to the act of an individual giving permission to an organisation to provide them with some form of care.
  • CQC may ask about staff understanding of the relevant requirements of the Mental Capacity Act 2005 (MCA) with respect to consent, and how and when a person’s mental capacity to consent to care or treatment is assessed, and where appropriate recorded.
  • ‘Informed consent’ is where the person giving their consent can be said to have a clear appreciation and understanding of the facts, and the implications and consequences of their actions.
  • To ensure that consent is valid, it is therefore necessary to ensure that people have got all the information they need in order to make a decision. The information must be adequate to enable them to decide, and must be in a format that they can understand. 
  • Implied consent is where the consent is not expressly given by the person but is inferred from their actions or the facts and circumstances of a particular situation.

What does ‘consent’ mean?

The term ‘consent’ in the context of health or social care is usually understood to refer to the act of an individual giving permission to an organisation or to a clinician to perform some kind of treatment or procedure upon them or to provide them with some form of service or care.

The concept of ‘consent’ is a vital one in the provision of any form of health or social care, and is key to enabling service users to make their own choices and to live with autonomy, dignity, privacy and freedom.

Consent is a key element in the provision of care or treatment. It is given a high priority in the fundamental standards. These require the registered person to have suitable arrangements in place for obtaining, and acting in accordance with, the valid consent of service users when considering any aspect of care.

‘Choice’ and ‘self-determination’ are important concepts in the philosophy of practice that underpins modern health and social care. All providers should be careful to ensure that their services are conducted so as to put service users at the centre of their own care and to maximise their capacity to exercise personal autonomy and choice.

Consent is a key element in ensuring that service users are in control.

KLOEs and rating characteristics

For both residential and community adult social care services, the key lines of enquiry (KLOEs) set out in the provider handbooks prompt inspectors to ask whether consent to care and treatment is always sought in line with legislation and guidance. Providers can expect inspectors to ask:

  • about staff understanding of the relevant requirements of the MCA with respect to consent
  • how and when a person’s mental capacity to consent to care or treatment is assessed, and where appropriate recorded
  • how the service monitors and improves the way staff seek people’s consent.

Suggested sources of evidence and further question prompts are also set out in the KLOE guidance. The rating characteristics in the provider handbooks state that in a service rated as ‘good’:

  • people are always asked to give their consent to their care, treatment and support
  • staff always consider people’s capacity to take particular decisions and know what they need to do to make sure decisions are taken in people’s best interests and involve the right professionals
  • where people do not have the capacity to make decisions, they are given the information they need in an accessible format and, where appropriate, their friends and family are involved.

Informed consent

Consent is described as ‘informed consent’ when the person giving their consent can be said to have a clear appreciation and understanding of the facts and the implications and consequences of their actions. To ensure that consent is valid, it is therefore necessary to make sure people have got all the information they need to make a decision. The information must be adequate to enable them to decide, and must be in a format that they can understand.

This is a key concept in modern health or social care and any medical, health or social care professional must obtain informed consent before they treat or care for a person. This means the person must be given all relevant information about the procedure and must be capable of understanding that information before they make their decision.

The MCA covers people who may lack the mental capacity to make such informed consent decisions and gives them protection from other people making decisions about treatment against their wishes.

Implied and explicit consent

Explicit consent is where somebody gives specific consent to carry out a specific action, either verbally or in writing.

Implied consent is where the consent is not expressly given by the person but is inferred from their actions or the facts and circumstances of a particular situation.

In an adult social care setting, for example, service users should be asked to give their explicit consent when their care plan is developed with them or when a particular treatment is offered by their GP. It should not be necessary to seek consent formally on every occasion when day-to-day social care is provided, such as helping the person out of bed, but formal consent should be sought whenever a change in care is required.

In particular, care providers should be alert to new developments in care delivery, especially those prompted by changes in a service user’s needs. As these changes occur, they should always seek to at least refresh the consent to what is happening.

Fundamental standards

Regulation 11 of the new Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 is concerned with the need for consent.
Guidance accompanying Regulation 11 states:

‘The intention of this regulation is to make sure that all people using the service, and those lawfully acting on their behalf, have given consent before any care or treatment is provided. Providers must make sure that they obtain the consent lawfully and that the person who obtains the consent has the necessary knowledge and understanding of the care and/or treatment that they are asking consent for.’

Mental capacity and consent

In the context of consent, the Mental Capacity Act Code of Practice is a key consideration. A person may not be able to give con-sent for a certain condition because they may lack capacity, and in such circumstances the MCA must be applied.

The fundamental principles of the MCA are that people:

  • must be assumed to have capacity unless it is established that they do not
  • should not be treated as unable to make a decision unless all practical steps have been taken without success to help them take the decision
  • must not be treated as unable to make a decision because they might make, or have been known to make, an unwise decision.

Given these principles, it is clear that the circumstances in which a service user can be judged unable to consent to something are rare, and that providers should make every attempt to ensure that service users do indeed actively give consent whenever appropriate.

This information was originally published in the Fundamental Standards Compliance Toolkit, Forum Business Media Ltd, December 2014.
www.fundamentalstandardstoolkit.co.uk

Toolkit

Use the following item in the Toolkit to help you put the ideas in this article into practice:

About the author

Martin Hodgson MSc, PGCEA is a community psychiatric nurse by background, and has had a long career working as a senior manager in various health agencies, including mental health, primary and community care.

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