Consent to Treatment Policy

Read alongside

Sickness Absence Policy

Consent to treatment - Children and young people

1.0 Introduction

1.1 Clinical Partners recognises the legal and ethical principle that valid consent must be obtained before starting assessment and treatment for a person. This principle reflects the right of patients to determine what happens to them and is a fundamental part of good practice. All healthcare professionals working for Clinical Partners are required to respect this principle and follow guidance issued by their professional bodies. 

1.2 Regulation 11 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (Regulated Activities) Regulations 2008 states that "Care and treatment of service users must only be provided with the consent of the relevant person". Clinical Partners provides consultation, assessment, talking therapies and prescribing services to people and will only do so with valid consent. 

1.3 The Mental Capacity Act 2005, (Appendix A Overview of the Mental Capacity Act) which came fully into force on 1 October 2007, sets out a statutory framework for making treatment decisions for people who lack the capacity to make such decisions themselves. The Act establishes overarching statutory principles governing these decisions, setting out who can make them and when. It sets out the legal requirements for assessing whether a person lacks the capacity to make a decision.  It is unlikely that Clinical Partners would provide care or treatment to adult patients who are unable to give consent due to lack of capacity.

2.0 Purpose

2.1 To ensure that Clinical Partners and its staff obtain valid consent before treating patients.  

2.2 That patients and others accessing the service will receive adequate information about care and treatment options to give informed consent. 

2.3 Consent will be obtained following best practice guidance from professional bodies and in accordance with legislation.

3.0 Definitions

3.1 Medical treatment

The management and care of a patient for the purpose of combating disease, injury, or disorder. It involves therapies that are designed to improve a person’s health problem. It can include examination and treatment by a qualified physician or other health professional, hospitalisation, surgery, medication, or other procedures that are medical, therapeutic, or diagnostic in nature.

3.2 Capacity

The ability to make a decision about a particular matter at the time of the decision needs to be made. The legal definition of a person who lacks capacity is set out in section 2 of the Mental Capacity Act 2005. 

3.3  Lasting Power of Attorney 

A Power of Attorney created under the Act (see Section 9(1)) appointing an attorney (or attorneys) to make decisions about the donor’s personal welfare (including healthcare) and/or deal with the donor’s property and affairs. 

3.4  Independent Mental Capacity Advocate (IMCA) 

Someone who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service is established under section 35 of the Mental Capacity Act and the functions of IMCAs are set out in section 36. It is not the same as an ordinary advocacy service.

3.5 Express consent

Express consent is where the service user gives permission to do a specific task on their behalf (Assessments). We need express consent as we are using identifiable information and sharing this with other organisations, ICB’s Trusts and GP’s. Express consent can be given verbally, written or by a opt in/out process.

If given verbally this should be kept as a detailed record in their notes.

3.6 Implied consent

Implied consent is where the service user has not expressly spoken or written their consent but by engaging in treatment, care or another service that consent is implied. As we gather identifiable information we require express consent

If you are not sure whether you have implied consent, you should always get express consent.

4.0 Principles of consent

4.1 For Clinical Partners to consider consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the treatment in question (this will be the patient or someone with parental responsibility for a patient under the age of 18, someone authorised to do so under a Lasting Power of Attorney (LPA) or someone who has the authority to make treatment decisions as a court appointed deputy). Acquiescence where the person does not know what the intervention entails is not ‘consent’. 

4.2 For both adults and younger people to give valid consent, the person giving consent needs to understand the nature and purpose of the procedure. Any misrepresentation of these elements will invalidate consent.  

4.3 Consent must be given voluntarily and freely, without pressure or undue influence being exerted on the person either to accept or refuse treatment. Such pressure can come from partners or family members, as well as health or care practitioners. Clinicians should be alert to this possibility and where appropriate should arrange to see the person on their own in order to establish that the decision is truly their own. 

4.4 Although completion of a consent form is in most cases not a legal requirement (exceptions include certain requirements of the Mental Health Act 1983 and of the Human Fertilisation and Embryology Act 1990 as amended by the Human Fertilisation and Embryology Act 2008) the use of such forms is good practice where certain treatments are to be undertaken.  

4.5 The validity of consent does not depend on the form in which it is given. Written consent merely serves as evidence of consent: if the elements of voluntariness, appropriate information and capacity have not been satisfied, a signature on a form will not make the consent valid. 

4.6 A person with capacity is entitled to withdraw consent at any time.

4.7 Clinical Partners Adult Exclusion Policy indicates that people who are currently self-harming or who have recently attempted suicide and who's capacity to consent might not be clear might not be seen by the service.  Patients will periodically move in and out of wellness and may become unsuitable and capacity may fluctuate. If this happens then they should be carefully managed into the correct level of care by the Clinical Partner who is looking after them. The triage person who arranged their treatment is usually able to support this process.

4.8 The legal position concerning consent and refusal of treatment by those under the age of 18 is different from the position for adults. For the purposes of this policy ‘children’ refers to people aged below 16 and ‘young people’ refers to people aged 16-17. 

4.9 By virtue of section 8 of the Family Law Reform Act 1969 people aged 16 or 17 are presumed to be capable of consenting to their own medical treatment. As for adults, consent will be valid only if it is given voluntarily by an appropriately informed young person capable of consenting to the particular treatment. However, unlike adults, the refusal of a competent person aged 16–17 may in certain circumstances be overridden by either a person with parental responsibility or a court. 

4.10 If the 16/17-year-old is capable of giving valid consent then it is not legally necessary to obtain consent from a person with parental responsibility for the young person in addition to the consent of the young person. It is, however, good practice to involve the young person’s family in the decision-making process – unless the young person specifically wishes to exclude them. 

4.11 The legal position concerning consent and refusal of treatment by those under the age of 18 is different from the position for adults. For the purposes of this policy ‘children’ refers to people aged below 16 and ‘young people’ refers to people aged 16–17.

4.12 By virtue of section 8 of the Family Law Reform Act 1969 people aged 16 or 17 are presumed to be capable of consenting to their own medical treatment. As for adults, consent will be valid only if it is given voluntarily by an appropriately informed young person capable of consenting to the particular treatment. However, unlike adults, the refusal of a competent person aged 16–17 may in certain circumstances be overridden by either a person with parental responsibility or a court.

5.0 Process for adult patients

5.1 The clinician providing the treatment or investigation is responsible for ensuring that the appropriate person has given valid consent before treatment begins. They must also be able to determine whether the person has the capacity to make the decision in question and what steps need to be taken if the person lacks the capacity to make that decision. Details of the assessment of capacity, and the conclusion reached, must be recorded in the case notes. 

5.2 The clinician must ensure that the patient or their legal representative has received sufficient information in a format that they can understand. This should include any risks or benefits of the treatment. The information given and any discussions must be recorded. 

5.3 Some people may wish to know very little about the treatment that is being proposed. If information is offered and declined, it is good practice to record this fact in the notes. However, it is possible that individuals’ wishes may change over time, and it is important to provide opportunities for them to express this. GMC and BMA guidance encourages doctors to explain to patients the importance of knowing the options open to them while respecting a person’s wish not to know, and states that basic information should always be provided about what the treatment aims to achieve and what it will involve. 

5.4 Patients and their legal representatives must be given as much time as they need to consider and assess the information provided and there must be no pressure for them to consent.  

5.5 Clinicians are reminded that consent must also be obtained for any visual or audio recording, including photographs or other visual images that may happen as part of the assessment process such as video consultations. Clinical Partners current stance is that NO recordings of consultations or therapy sessions are made.

5.6 Consent to treatment by Clinical Partners is generally implied.  Clinical Partners may ask for written consent should any contract arrangements require this. In these circumstances a copy of the consent should be given to the patient or legal representative and a copy retained in the patient record. 

5.7 The seeking and giving of consent is usually a process, rather than a one-off event. Clinicians should check that that consent is ongoing especially when a patient may be feeling particularly vulnerable as there may be real doubt as to its validity. 

5.8 A person with capacity is entitled to withdraw consent at any time.

6.0 Consent process for younger Adults 16-17

6.1 If the 16/17-year-old is capable of giving valid consent then it is not legally necessary to obtain consent from a person with parental responsibility for the young person in addition to the consent of the young person. It is, however, good practice to involve the young person’s family in the decision-making process – unless the young person specifically wishes to exclude them.

6.2 For valid consent the triage team must discuss with the younger adult their consent preferences regarding their rights to consent to their own care and treatment and have control over their own information and portal (Appendix 3 Discussion guide 16-17 7ear olds). This conversation must take place with the young adult to establish their wishes around management of their own care. This should include consent around:

• engagement with their parent - can Clinical Partners discuss their care and treatment with parents or nominated other

• a second triage with their parent

• access rights to the patient portal

6.3 This discussion must me recorded in the patient record. There must also be a conversation with the parent or legal guardian to explain the legal position of consent for 16- 17-year-olds. Care treatment and access to records must be directed by the competent 16 -17 old.

7.0 Process for young children (under 16)

7.1 For children under 16 the concept of Gillick competence must be considered. In the case of Gillick, the court held that children who have sufficient understanding and intelligence to enable them to understand fully what is involved in a proposed intervention will also have the capacity to consent to that intervention. This is sometimes described as being ‘Gillick competent’. A child of under 16 may be Gillick competent to consent to medical treatment, research, donation or any other activity that requires their consent.

7.2 The understanding required for different interventions will vary considerably. A child under 16 may have the capacity to consent to some interventions but not to others. The child’s capacity to consent should be assessed carefully in relation to each decision that needs to be made. In some cases, for example because of a mental disorder, a child’s mental state may fluctuate significantly, so that on some occasions the child appears Gillick competent in respect of a particular decision and on other occasions does not. In cases such as these, careful consideration should be given as to whether the child is truly Gillick competent at the time that they need to take a relevant decision.

7.3 If the child is Gillick competent and is able to give voluntary consent after receiving appropriate information, that consent will be valid and additional consent by a person with parental responsibility will not be required. It is, however, good practice to involve the child’s family in the decision-making process, if the child consents to their information being shared. (Appendix 2 CAMHS consent form).

7.4 Where a child under the age of 16 lacks capacity to consent (i.e. is not Gillick competent), consent can be given on their behalf by any one person with parental responsibility (if the matter is within the ‘zone of parental control’) or by the court. As is the case where patients are giving consent for themselves, those giving consent on behalf of child patients must have the capacity to consent to the intervention in question, be acting voluntarily and be appropriately informed. The power to consent must be exercised according to the ‘welfare principle’: that the child’s ‘welfare’ or ‘best interests’ must be paramount. Even where a child lacks capacity to consent on their own behalf, it is good practice to involve the child as much as possible in the decision-making process.

7.5 The Children Act 1989 sets out persons who may have parental responsibility. These include:

• the child’s mother

• the child’s father, if he was married to the mother at the time of birth

• unmarried fathers, who can acquire parental responsibility in several different ways:

For children born before 1 December 2003, unmarried fathers will have parental responsibility if they:

• marry the mother of their child or obtain a parental responsibility order from the court

• register a parental responsibility agreement with the court or by an application to court –

For children born after 1 December 2003, unmarried fathers will have parental responsibility if they:

• register the child’s birth jointly with the mother at the time of birth

• re-register the birth if they are the natural father

• marry the mother of their child or obtain a parental responsibility order from the court

• register with the court for parental responsibility

• the child’s legally appointed guardian

• a person in whose favour the court has made a residence order concerning the child

• a local authority designated in a care order in respect of the child

• a local authority or other authorised person who holds an emergency protection order in respect of the child. Section 2(9) of the Children Act 1989 states that a person who has parental responsibility for a child ‘may arrange for some or all of it to be met by one or more persons acting on his or her behalf ’. Such a person might choose to do this, for example, if a childminder or the staff of a boarding school have regular care of their child. As only a person exercising parental responsibility can give valid consent, in the event of any doubt then specific enquiry should be made. Foster parents do not automatically have parental responsibility.

8.0 Monitoring

8.1 This policy will be kept under review by the Clinical Governance Group.

8.2 Audits of compliance will be conducted as part of the improvement programme.

9.0 References

https://www.legislation.gov.uk/ukdsi/2014/9780111117613/regulation/11

https://www.gov.uk/government/publications/reference-guide-to-consent-for-examination-or-treatment-second-edition

https://www.gov.uk/government/news/new-mental-health-act-code-of-practice

https://www.legislation.gov.uk/ukpga/2005/9/contents

https://www.legislation.gov.uk/ukpga/1969/46

https://www.legislation.gov.uk/ukpga/1989/41/contents

https://www.cqc.org.uk/guidance-providers/gps/gp-mythbuster-8-gillick-competency-fraser-guidelines

https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/good-medical-practice

https://www.cqc.org.uk/guidance-providers/regulations-enforcement/regulation-11-need-consent

https://www.legislation.gov.uk/ukpga/2008/22/contents

https://www.legislation.gov.uk/ukpga/1990/37/contents

https://www.rcpsych.ac.uk/docs/default-source/improving-care/better-mh-policy/college-reports/college-report-cr154.pdf?sfvrsn=e196928b_2

Appendix 1: Mental Capacity Act Principles 

Five basic principles

1. Always assume the person is able to make the decision until you have proof they are not.

2. Try everything possible to support the person make the decision themselves.

3. Do not assume the person does not have capacity to make a decision just because they make a decision that you think is unwise or wrong.

4. If you make a decision for someone who cannot make it themselves, the decision must always be in their best interests.

5. Any decisions, treatment or care for someone who lacks capacity must always follow the path that is the least restrictive of their basic rights and freedoms.

It's also important to remember that a person may have capacity for some decisions but not others, or they may not have capacity right now but may regain it in the future with support. This means all capacity decisions should be regularly reviewed to make sure they still reflect the person's ability to make decisions.

Does the person have capacity? 

The Mental Capacity Act 2005 defines a person who lacks capacity as a person who is unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain. It does not matter if the impairment or disturbance is permanent or temporary. A person lacks capacity if:  

• they have an impairment or disturbance (for example a disability, condition or trauma or the effect of drugs or alcohol) that affects the way their mind or brain works,  

• that impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.  

An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. A person is unable to make a decision if they cannot do one or more of the following things: 

• understand the information given to them that is relevant to the decision

• retain that information long enough to be able to make the decision 

• use or weigh up the information as part of the decision-making process 

• communicate their decision – this could be by talking or using sign language and includes simple muscle movements such as blinking an eye or squeezing a hand.   

People may have capacity to consent to some interventions but not to others or may have capacity at some times but not others. Under the Mental Capacity Act, a person must be assumed to have capacity unless it is established that they lack capacity. If there is any doubt, then the healthcare professional should assess the capacity of the patient to take the decision in question. This assessment and the conclusions drawn from it should be recorded in the patient’s notes. Guidance on assessing capacity is given in chapter 4 of the Mental Capacity Act (2005) Code of Practice. 

A person’s capacity to consent may be temporarily affected by factors such as confusion, panic, shock, fatigue, pain or medication. However, the existence of such factors should not lead to an automatic assumption that the person does not have the capacity to consent. 

Capacity should not be confused with a healthcare professional’s assessment of the reasonableness of the person’s decision. Under the Mental Capacity Act and the common law, a person is not to be treated as unable to make a decision merely because they make an unwise decision. A person is entitled to make a decision which may be perceived by others to be unwise or irrational, as long as they have the capacity to do so.  

However, if the decision that appears irrational is based on a misperception of reality, as opposed to a different value system to that of the health practitioner – for example a patient who, despite the obvious evidence, denies that his foot is gangrenous, or a patient with anorexia nervosa who is unable to comprehend their failing physical condition – then the patient may not be able to comprehend, weigh or make use of the relevant information and hence may lack the capacity to make the decision in question. 

The Mental Capacity Act also requires that all practical and appropriate steps are taken to enable a person to make the decision themselves. These steps include the following: 

• Providing relevant information. For example, if there is a choice, has information been given on the alternatives?  

• Communicating in an appropriate way. For example, could the information be explained or presented in a way that is easier for the person to understand?  

• Making the person feel at ease. For example, are there particular times of the day when a person’s understanding is better?   

The test of capacity is set out in the Mental Capacity Act. Once it has been determined that a person has the capacity to make a particular decision at a particular time, a further requirement (under the common law) for that consent to be valid is that it must be given voluntarily and freely, without pressure or undue influence being exerted upon them. 

When people are seen and treated in environments where involuntary detention may be an issue, such as prisons and mental hospitals, there is a potential for treatment offers to be perceived coercively, whether or not this is the case. Coercion invalidates consent, and care must be taken to ensure that the person makes decisions freely. Coercion should be distinguished from providing the person with appropriate reassurance concerning their treatment, or pointing out the potential benefits of treatment for the person’s health. However, threats such as withdrawal of any privileges, loss of remission of sentence for refusing consent or using such matters to induce consent may well invalidate the consent given, and are not acceptable.  

Has the person received sufficient information?  

To give valid consent, the person needs to understand the nature and purpose of the procedure. Any misrepresentation of these elements will invalidate consent. Where relevant, information about anaesthesia should be given alongside information about the procedure itself.  

It is particularly important that a person is aware of the situation when students or trainees carry out procedures to further their own education. Where the procedure will further the person’s care – for example taking a blood sample for testing – then, assuming the student is appropriately trained in the procedure, the fact that it is carried out by a student does not alter the nature and purpose of the procedure. It is therefore not a legal requirement to tell the person that the clinician is a student, although it would always be good practice to do so. In contrast, where a student proposes to conduct a physical examination that is not part of the person’s care then it is essential to explain that the purpose of the examination is to further the student’s training, and to seek consent for that to take place. 

Although informing people of the nature and purpose of procedures enables valid consent to be given as far as any claim of battery is concerned, this is not sufficient to fulfil the legal duty of care to the person. Failure to provide other relevant information may render the practitioner liable to an action for negligence if a person subsequently suffers harm as a result of the treatment received.  

In considering what information to provide, the health practitioner should try to ensure that the person is able to make an informed judgement on whether to give or withhold consent. Case law on this issue is evolving. It is therefore advisable to inform the person of any ‘material’ or ‘significant’ risks or unavoidable risks, even if small, in the proposed treatment; any alternatives to it; and the risks incurred by doing nothing.  

The GMC provides guidance on the type of information that patients may need to know before making a decision, and recommends that doctors should do their best to find out about patients’ individual needs and priorities when providing information about treatment options. It advises that discussions should focus on the patient’s ‘individual situation and risk to them’ and sets out the importance of providing the information about the procedure and associated risks in a balanced way and checking that patients have understood the information given. 

BMA guidance advises that if in doubt about the amount of information to give a patient, doctors ‘should contact their hospital lawyers or their medical defence organisation’. 

In the very rare event that the healthcare professional believes that to follow the guidance in full will cause the patient serious harm, the GMC guidance states that this view, and the reasons for it, should be recorded in the patient’s notes. When such concerns arise it is advisable to discuss the issue within the team caring for the patient. In individual cases the courts may accept such a justification but would examine it with great care. The mere fact that the patient might become upset by hearing the information, or might refuse treatment, is not sufficient to act as a justification. 

Some people may wish to know very little about the treatment that is being proposed. If information is offered and declined, it is good practice to record this fact in the notes. However, it is possible that individuals’ wishes may change over time, and it is important to provide opportunities for them to express this. GMC and BMA guidance encourages doctors to explain to patients the importance of knowing the options open to them while respecting a person’s wish not to know, and states that basic information should always be provided about what the treatment aims to achieve and what it will involve. 

Appendix 2: CAMHS Consent Form

Appendix 3: 16-17 conversation guide

Consent process for portal and data access for 16 – 18-year-olds

Scope

All young people 16 – 17 years and 364 days who are being assessed by CP or receiving care and treatment.  (This should be both NHS and Private patients).

1. Triage process/SOP

The SOP for Triage will need to include:

Parents or legal guardian.

Explain to the parent/legal guardian that their 16 – 18-year-old child can give consent to being examined or treated in the same way that adults can and we will need to talk to their child to discuss this. We also need to explain that if their child agrees to a particular assessment or treatment, the psychiatrist or psychologist does not have to ask for parents for consent as well.

Even if the young adult is able to give consent, our policy would always be to encourage them to include their parents in any decisions. If they know what is happening, they will be able to help their child think through decisions and provide support. However should their child not want us to share information with their parents or guardian then we will not be allowed to share it unless there are exceptional circumstances.

Possible script for discussion and amendment as required.

 As Patient is age they can give consent to being examined or treated in the same way that adults can and we will need to talk to xx to discuss this. We also need to tell you that if Patient agrees to a particular assessment or treatment, the psychiatrist or psychologist does not have to ask for your consent as well.

We would like to assure you that if Patient is able to give consent, our policy would always be to encourage them to include you in any decisions. However should Patient not want us to share information with you then we will not be allowed to share it unless there are exceptional circumstances.

What would be the best way to arrange a call with Patient?

Young Adult

Triage will need to be able to describe the assessment process and the information stored and explain data retention as outline in the Privacy Notice.

Possible script for discussion and amendment as required.

Thank you for speaking with me today. I wanted to talk with you about your upcoming assessment with Clinical Partners .

As you are aged xx you can give consent to assessments or treated in the same way that adults can. If you agree to a particular assessment or treatment, the Clinician does not have to ask your parents/guardian(s) for consent as well. But if you decide to refuse a particular treatment, sometimes your parents may be involved if it is felt it’s in your best interest to do so.

If you choose to give consent yourself, it’s still a good idea to include your parents/guardian(s) in your decision. If they know what is happening, they will be able to help you think through your decision and to support you better. We would encourage you to involve your parents/guardian(s)

Clinical Partners need to know if you are happy for your parents/guardian to oversee your care by letting them have access to the portal where all your information and reports will be held or if you would prefer to manage the portal yourself? You or your parents will be able to see

• Your clinical report and download it

• Appointment details including clinicians, times, location and access to Zoom links for virtual appointments

• Completed pre-appointment questionnaires and informant’s questionnaires

You can change your mind about who has access to your portal, but you must let us know and it may not be possible to change access to your portal immediately.

When you are 18 you will automatically be given access to your portal and your parents/guardian’s access removed unless you tell us that this is not what you wish.

IT processes.

These need to take into account the logging of consent initially on Salesforce to record a discussion has taken place.

Amendments if required to the portal to enable under 18 to have access and also an alert or system to convert child to adult statue aged 18.