Consent

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.

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.

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Withdrawn consent means deciding to withhold consent when previously consent was given.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Consent can be withheld and/or withdrawn at any time.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.

If there is a Lasting Power of 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.

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.

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.

See: Confidentiality and Information Sharing

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.

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.