Consent to Care

Mind Map Focus

Focus Date: 06/05/2025 Date Review Required: 06/06/2026 Approved by: Toni Lancaster

Relevant legislation:

• The Care Act 2014

• Children Act 1989

• Children Act 2004

• The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, in particular, Regulation 11 – Need for Consent

• Human Rights Act 1998

• Mental Capacity Act 2005

• Mental Capacity Act Code of Practice

• Mental Health Act 1983

• Mental Health Act 2007

• Safeguarding Vulnerable Groups Act 2006

• Data Protection Act 2018

• The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2012

1. Purpose

1.1 To ensure that MINDMAPFOCUS fulfils the legal and regulatory responsibilities in relation to consent, creating respectful, compassionate care, support and treatment which ensures person centred delivery at all times.

1.2 To meet the legal requirements of the regulated activities that MINDMAPFOCUS is registered to provide:

• The Care Act 2014

• Children Act 1989

• Children Act 2004

• The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

• Human Rights Act 1998

• Mental Capacity Act 2005

• Mental Capacity Act Code of Practice

• Mental Health Act 1983

• Mental Health Act 2007

• Safeguarding Vulnerable Groups Act 2006

• Data Protection Act 2018

• The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2012

2. Objectives

2.1 To ensure that valid consent is obtained from the Service User before any care, support or treatment is given.

2.2 Where the Service User lacks mental capacity to make an informed decision, or give consent, staff must act in accordance with the requirements of the following:

• Mental Capacity Act 2005

• Associated code of practice

• Best Interest process

2.3 To ensure that staff understand other occasions when a Service User's valid consent is required and the implications of obtaining valid consent from a young person aged over 16 and the procedures that they must follow.

3. Policy

3.1 MINDMAPFOCUS understands the need to only provide care, support and treatment with consent from the Service User.

3.2 MINDMAPFOCUS ensures that when a Service User is asked for their consent, information about the proposed care, support or treatment will be provided in a way that they can understand.

3.3 The information will include details about the risks, complications and any alternatives. Only staff with the necessary knowledge and understanding of the care, support or treatment will provide this information so that they can answer any questions about it to help the Service User give valid consent.

3.4 MINDMAPFOCUS will consider that everyone is competent to take their own decisions about their care and support needs unless it can be shown otherwise.

3.5 Where a Service User lacks mental capacity to make an informed decision, or give consent, staff will act in accordance with the requirements of the Mental Capacity Act 2005 and associated code of practice. We will respect when Service Users, or a person acting lawfully on their behalf, refuses to give consent or withdraws it.

3.6 MINDMAPFOCUS recognises that consent may be implied and include non-verbal communication such as sign language or actions, such as someone offering their hand when asked if they would like help to move.

3.7 We will ensure that we treat consent as a process that continues throughout the duration of care, support and treatment, recognising that it may be withheld and/or withdrawn at any time. Staff will be trained to understand that capacity can fluctuate and this needs to be considered in the context of giving or refusing consent.

3.8 Discussions about consent will be held in a way that meets the Service User's communication needs. This may include the use of different formats or languages and may involve others such as a translator or independent advocate. The Accessible Information Standard (AIS) can be referred to for more information.

3.9 We will ensure that consent procedures do not pressure Service Users into giving consent and, where possible, plans will be made well in advance to allow time to respond to Service User questions and provide adequate information.

3.10 We will uphold the Service User's right to be involved in all decisions about their care, support and treatment.

3.11 MINDMAPFOCUS will work with other members of the multidisciplinary team when required, to ensure that best interest decisions are made and recorded for Service Users who lack mental capacity to give valid consent. Sharing of information with multidisciplinary partners will be done so in line with UK GDPR and Data Protection Policies and Procedures.

3.12 We will ensure that policies and procedures for obtaining consent to care, support and treatment will reflect current legislation and guidance and that staff follow them at all times.

4. Procedure

4.1 MINDMAPFOCUS recognises that consent is fundamental in ensuring person-centred care provision and treatment.

4.2 MINDMAPFOCUS understands the need to allow Service Users time to process information without feeling rushed or pressured, providing the opportunity for the individual or their legal representative to consider and formulate any questions that they have relating to their care provision and treatment.

5. Consent at Initial Point of Contact

5.1 MINDMAPFOCUS understands that there may be times when family members, friends or legal representatives of a Service User make contact with the service on a Service User's behalf.

5.2 MINDMAPFOCUS recognises that unless the person making contact has power of attorney for the Service User, and that Service User lacks capacity, consent must be obtained from the person the service is intended for, before any assessments, contracts or treatments are completed.

5.3 Throughout all stages of the care and treatment process, valid consent must be obtained from the Service User or their legal representative.

6. Consent Before a Service Commences

6.1 Before the service starts, MINDMAPFOCUS will explain the policies and procedures and discuss the Service User's rights in relation to the service they will be receiving. The Service User will receive information about MINDMAPFOCUS in a format that they can understand.

6.2 The registered manager will ensure that the staff responsible for the assessment, planning, treatment or care delivery Plan have the skills and knowledge to answer any Service User questions and to discuss valid consent with the Service User.

6.3 The staff member responsible for the initial assessment will ensure that mental capacity is assessed before the Service User is asked to provide consent for the service. Where the assessment identifies that the Service User lacks the mental capacity to give valid consent, it will be sought from the Service User's legally authorised representative (such as a person having power of attorney) where appropriate. The assessor must consider whether the lack of capacity is temporary or permanent and the Service User will be supported and encouraged to be involved, as far as they want to and are able, in decisions about their care and treatment.

6.4 MINDMAPFOCUS recognises that there may be times in which it may be appropriate to refer a Service User back to their GP when decisions need to be made about care and treatment, particularly if there are any doubts about a Service User's capacity to consent.

6.5 The Service User will be given the opportunity to read and understand the information given. Where there are communication or language barriers, measures will be taken to ensure that the Service User can understand the information that is being shared.

7. Consent and Mental Capacity

7.1 A Service User lacks capacity if their mind is impaired or disturbed in some way, and this means the Service User is unable to make a decision at that time.

7.2 The staff member responsible for the care, treatment or assessment will ensure that mental capacity is assessed before the Service User consents to care and support.

7.3 Where the mental capacity assessment identifies that the Service User lacks the mental capacity to give valid consent, consent will be sought from the Service User's legally authorised representative (such as a legal guardian or a person having a power of attorney) if appropriate.

7.4 The assessor will consider whether the lack of capacity is temporary or permanent and consider if there are occasions when capacity fluctuates.

7.5 The Service User will be supported and encouraged to be involved, as far as they want to and are able, in decisions about their treatment, care and support.

7.6 MINDMAPFOCUS recognises that there may be times in which it may be appropriate to refer a Service User back to their GP when decisions need to be made about care and treatment, particularly if there are any doubts about a Service User's capacity to consent.

8. Consent and Best Interest Decisions

8.1 Where a Service User is assessed as lacking capacity to give valid consent and has no-one formally appointed to make decisions on their behalf, the assessor will consider a best interest decision. This best interest decision is to consider whether to go ahead with the care, support or treatment. There are many important elements involved in trying to determine what a Service User's best interests are, including:

• Considering whether it's safe to wait until the Service User can give consent, if it is likely they may regain capacity at a later stage

• Involving the Service User in the decision as much as possible

• Trying to identify any issues the Service User would take into account if they were making the decision themselves, including religious or moral beliefs. These would be based on views the Service User expressed previously, as well as any insight close relatives or friends can offer

8.2 Best Interest decisions will also be undertaken in partnership with the multi-disciplinary team and the best interest decisions must be documented. The decision will be reviewed at regular intervals as agreed with MINDMAPFOCUS and the multi-disciplinary team. In the absence of a suitably available multidisciplinary team, the service user will be referred back to their GP for discussions about treatment and care options.

9. Care Plans and Care Delivery

9.1 Care Plans are formed as a collaborative approach with the Service User's wishes and more importantly, their consent.

9.2 MINDMAPFOCUS will ensure that the Service User's consent is to evidence that they agree with the care, support and treatment that is being proposed to meet their needs, which includes personal, health (including medication), social, psychological and spiritual needs. The Service User will be asked to sign the care plan or a consent form as appropriate, that clearly indicates what they are giving consent for.

9.3 Where a Service User is unable to sign, we will ensure that the Service User has provided valid consent.

9.4 Consent is often wrongly associated with a Service User's signature on a consent form. A signature on a form may not amount to valid consent if the Service User is rushed into signing a form on the basis of too little information. Similarly, if a Service User has given valid verbal consent, the fact that they are physically unable to sign the form is not a barrier to care and support being provided.

9.5 Consent can be confirmed or withdrawn by a Service User at any time. Staff will log in the notes that consent was obtained for tasks carried out with or on behalf of the Service User at each interaction.

10. Consent to Share Information

10.1 We will ensure that the Service User gives permission for information to be shared with other professionals or providers. If a Service User lacks capacity to make this decision, MINDMAPFOCUS, in consultation with any representatives, will need to make a best interests decision about sharing information. Examples of when information might be shared are:

• Transferring care between providers

• Discussing an acute medical condition or treatment provided with a GP

• Discussing mobility goals with a physiotherapist

10.2 We will also ensure that staff comply with the UK GDPR and Data Protection Act and that consent is sought from the Service User before sharing any information with inspectors or regulators. We will be aware of the need to maintain confidentiality and that a Service User's right to confidentiality continues even when they are deceased.

10.3 Service Users must understand what information is recorded about them and how MINDMAPFOCUS uses that information, stores it and whether the information is shared. The Service User will be asked to provide consent for any information about their health, care, support, treatment or personal identifiable information to be shared. We will consider this within the context of the UK GDPR.

11. Consent and Staff Assessments

11.1 MINDMAPFOCUS will ensure that the Service User's consent is sought prior to undertaking the following:

• Quality checks involving the Service User's Care

• Observational competency assessments for staff involving the Service User's Care

• Training in the Service User's care or treatment environment

This will be explained to the Service User in a way they can understand.

12. Duration of Consent

12.1 When a Service User gives valid consent to care, support or treatment, that consent remains valid unless the Service User withdraws it or there are circumstances that mean it can be treated as if it had been withdrawn.

12.2 Such circumstances would include the procedure having taken place or there being a significant gap since the consent was given. In addition, if new information becomes available regarding the proposed intervention (for example, new evidence of risks or new treatment options) between the time when consent was sought and when the intervention is undertaken, we will inform the Service User and reconfirm their consent.

12.3 Similarly, if a Service User's condition or circumstances have changed significantly in the intervening time, it may be necessary to seek consent again, on the basis that the likely benefits and/or risks of the care, support or treatment may also have changed.

13. Consent Refusal and Withdrawn Consent

13.1 MINDMAPFOCUS recognises that consent may be obtained from the Service User themselves or by a lawful legal representative. This can be given, refused and withdrawn at any time and must be respected.

13.2 If the process of seeking consent is to be a meaningful one, refusal must be one of the Service User's or lawful representative's options. A competent, adult Service User is entitled to refuse any care or treatment, except in circumstances governed by the Mental Health Act 1983.

13.3 If, after discussion of possible care, support or treatment options, the Service User refuses care or treatment (for example, personal care or medication), this fact must be clearly documented in their notes and escalated to the Registered Manager.

13.4 If a Service User has already signed a consent form but then changes their mind, this must be noted on the consent form, and where possible, it will be noted on the consent form by the Service User.

13.5 When care, support or treatment is refused and when company staff cannot follow the agreed care or treatment plan, staff must ensure that they follow the procedure for refusal of care, support or treatment at MINDMAPFOCUS to ensure that safeguarding issues do not arise. This should include:

• Reporting the refusal to the Registered Manager

• The Registered Manager will ensure that this is monitored to ascertain if certain patterns are forming and if the occurrence is regular, which may be detrimental to the Service User's health and wellbeing

• Following this, the Registered Manager or a senior staff member will liaise with the Service User if they have concerns relating to their health or wellbeing

14. Staff Obtaining Consent

14.1 The Registered Manager will ensure that staff understand the importance of ensuring that they obtain consent each and every time any aspect of care or treatment is delivered. This consent may be verbal or implied consent, e.g. saying 'yes' or using their body language to indicate consent.

14.2 Staff will be trained on what they should do if a Service User refuses consent.

14.3 Where Service Users have communication difficulties or lack capacity, the Care Plan will clearly state how ongoing consent will be obtained.

14.4 Service Users will be asked to give individual ('granular') options to consent separately to different purposes in line with the UK GDPR.

15. Recording Consent

15.1 Staff will ensure that consent is recorded as given or refused in the Service Users daily records at each episode of Service User Care.

15.2 MINDMAPFOCUS is responsible for ensuring that consent is gained in an informed and lawful way.

16. Advance Decisions

16.1 We will ensure that where a Service User has an advance decision in place, it is valid and that it is clearly documented what it relates to.

16.2 Where the advance decision relates to the Service User's decision not to resuscitate, this will be in writing, signed and dated, be witnessed, and state clearly that the decision applies even if life is at risk.

Appendix 1 — Mental Capacity Act & Deprivation of Liberty Safeguards

17. Introduction

17.1 The Mental Capacity Act 2005, covering England and Wales, lays out a legal framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they might lack capacity in the future.

17.2 Certain parts, such as the right to make an advance decision to refuse treatment or appoint attorneys under a Lasting Power of Attorney, only relate to people aged 18 and over.

17.3 Most of the MCA applies to people from the age of 16 upwards.

17.4 All staff paid to work with any person aged 16 or above, who might lack mental capacity to make certain decisions at the time they need to be made due to a disability or disorder of mind or brain, must 'have regard to' the MCA code of practice.

17.5 It sets out who can take decisions, in what situations, and how they should go about this.

17.6 To protect the rights of people who might lack mental capacity, when they may be deprived of their liberty in their best interests.

18. The 5 Principles of the Mental Capacity Act

18.1 The presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have the capacity to do so unless it is proved otherwise.

18.2 Individuals must be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions.

18.3 Individuals must be able to make what might be seen as eccentric or unwise decisions, without this being used as the sole reason to say they lack capacity.

18.4 Best interests – anything done for, or on behalf of people who lack capacity must be in their best interests.

18.5 Least restrictive option – before any act is done or a decision is made, staff must consider if they have found the option that, while meeting the need, is the least restrictive possible of the person's basic rights and freedoms.

19. The Court of Protection

19.1 The Court of Protection has jurisdiction relating to the whole Act and is the final arbiter for capacity matters. It has its own procedures and nominated judges.

20. Deprivation of Liberty

20.1 If MINDMAPFOCUS conducts a capacity assessment or is aware of a Service User being subject to a Deprivation of Liberty Safeguard, the Registered Manager has overarching responsibility to assess and confirm that the deprivation of liberty appears necessary and proportionate. A DoLS is only to be applied for or implemented when unavoidable after exhausting all other possibilities, they must notify the commissioners and ask them to apply appropriately and in a timely way to the Court of Protection for authorisation and it may not be appropriate for every Health and Social Care environment to apply.

20.2 The Human Rights Act states that no one can be "deprived of their liberty" except in certain situations and only when very specific procedures are in place which must be used. This is to protect a service user from being deprived of their liberty without anyone looking at the circumstances and approving the actions.

20.3 The 2014 Supreme Court Cheshire West judgement widened and clarified the definition of a deprivation of liberty, known as the 'acid test'. The Care Quality Commission (CQC) issued a briefing note for health and social care providers which can be read here: http://www.cqc.org.uk/sites/default/files/20140416_supreme_court_judgment_on_deprivation_of_liberty_briefing_v2.pdf

This briefing note for health and social care providers should be used in conjunction with advice from the supervisory body, i.e. the local authority (LA). In summary, the 'acid test' confirms two key questions to ask for people lacking the capacity to consent to the arrangements for care and/or treatment:

• Is the person subject to continuous supervision and control?

• Is the person free to leave? (The person may seem happy to stay, but the issue is about how staff would react if the person did try to leave.)

• It is now clear that, if a person lacking the capacity to consent to the arrangements is subject both to continuous supervision and control and is not free to leave, they are deprived of their liberty.

20.4 The Supreme Court also ruled that the following factors are not relevant to whether or not someone is deprived of their liberty:

• The person's compliance or happiness or lack of objection.

• The suitability or relative normality of the placement (after comparing the person's circumstances with another person of similar age and condition).

• The reason or purpose leading to a particular placement, although, of course, all these factors are still relevant to whether or not the situation is in the person's best interests and should be authorised.

20.5 When a service user is assessed as being deprived of their liberty the local authority will apply to the court of protection for a deprivation of liberty order. The application to the court of protection is usually made by a social worker or community health nurse. If the service user's care is entirely privately funded (such as personal injury compensation) the rules still apply.

20.6 In the majority of cases, there will be no need for anyone to go to Court – it should all be decided by the paperwork the Judge receives. In some cases, such as where there may be a disagreement then a hearing will be needed. Once the order is made it will usually be for one year and then will be renewed again if still required at the end of this period.

21. The Registered Manager will:

21.1 Ensure that the Service User and their relatives understand what restrictions have been authorised, and how they can challenge any aspect of the authorisation with the help of an IMCA (Independent Mental Capacity Advocate).

21.2 Ensure, where relevant, that the status of the Deprivation of Liberty Safeguard is communicated with relevant staff.

21.3 Record the end date set by the Court of Protection and arrange to convene at least a month earlier discussions with commissioners or the local authority about whether a new authorisation will be needed.

21.4 Notify the Care Quality Commission of the Court of Protection application and its outcome.

21.5 Record any conditions and ensure that they are incorporated into the service users records.

22. Liberty Protection Safeguards

22.1 Under the Mental Capacity (Amendment) Act 2019, the DoLS will be replaced by the Liberty Protection Safeguards (LPS). The Liberty Protection Safeguards will provide protection for people aged 16 and above who are or who need to be deprived of their liberty to enable their care or treatment and lack the mental capacity to consent to their arrangements. They were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the Deprivation of Liberty Safeguards (DoLS) system.

22.2 The Liberty Protection Safeguards will deliver improved outcomes for people who are or who need to be deprived of their liberty. They have been designed to put the rights and wishes of those people at the centre of all decision-making on deprivation of liberty.

22.3 LPS will apply to a deprivation of liberty, for a person aged 16 and above, in any setting in England and Wales. That includes:

• Care homes – registered care homes in which care is provided

• NHS hospitals – a health service hospital that is part of the national health service

• Education facilities – including day and residential schools and sixth form colleges

• Independent hospitals – a hospital that is not an NHS hospital, for example, one run by a private company or a charity

• A person's own home – when a person is receiving care or treatment in their own home. This includes:

  • Supported living – services designed to help individuals with disabilities keep their independence in their local community

  • Shared lives – carers sharing their home and family life with individuals using a shared lives arrangement

22.4 This change ensures that all individuals who need to be deprived of their liberty will be protected under the Liberty Protection Safeguards, regardless of where they reside, without the need to go to court.

23. LA Mental Capacity Act assessment team and safeguarding

23.1 If a Deprivation of Liberty Safeguards application is required, please contact Lancashire County Council.

24. Restrictive Practices

24.1 Staff refer to the associated policies and procedures at this service, such as restraint / physical interventions and restriction of freedom of movement, when considering capacity and best interest decision making and ensure that their actions are in accordance with the MCA. Staff know how the Mental Capacity Act defines restraint, and that restraint can be:

• Physical or mechanical

• Environmental

• Chemical

24.2 Any intervention must be agreed as part of a multidisciplinary decision involving external health professionals and senior managers in the organisation. Staff must follow strategies as detailed by an approved, credited training provider and follow local policies and procedures.