1.2.3 Capacity and Consent
SCOPE OF THIS CHAPTER
In this chapter guidance is offered in relation to the various situations in which consent is likely to be sought, with reference to previous legal judgements. This is a potentially complex practice arena and if the practitioner is in any doubt about gaining consent they should always seek further advice from managers and legal advice must be sought as necessary.
In February 2021 information was added in relation to NICE Quality Standard: Decision-Making and Mental Capacity.
Whenever a professional requires the consent of a client, whether adult or child, to a particular decision or course of action, the issue of their Capacity to respond appropriately to the request must be considered. Issues of Capacity and Consent may arise in various contexts. It may be necessary to consider the legal Capacity of parents and/or children/young people to make decisions and give valid, informed consent.
Legal Capacity can fluctuate and, for consent to be valid, it must be made by a person who has the legal Capacity to make that decision at that time, having a clear, fully-informed understanding of what it is they are consenting to. This will include the likely outcomes which may flow from the consent being given.
Issues of Capacity and Consent may arise, for example, in relation to:
- Assessments and Early Help interventions;
- Legal proceedings, e.g. where a Gillick competent child desires separate legal representation and/or their wishes differ from the views of their Guardian ad Litem;
- Dealing with parents with learning disabilities/mental health problems;
- Children becoming looked after, e.g. parental agreement to children being accommodated under section 20 Children Act 1989;
- Delegation of authority to carers in respect of day-to-day matters;
- Consent in relation to health assessments and medical treatment;
- Parental consent to adoption or a Special Guardianship Order;
- Deprivation of liberty of a child/young person.
For consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the particular intervention in question at that particular time.
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.
Acquiescence where the person does not fully understand what they are being asked to agree to is not 'consent'.
Consent to Information Sharing
Information sharing: advice for safeguarding practitioners includes a Myth-busting guide that states:
Wherever possible, you should seek consent and be open and honest with the individual from the outset as to why, what, how and with whom, their information will be shared. You should seek consent where an individual may not expect their information to be passed on. When you gain consent to share it must be explicit and freely given.
There may be some circumstances where it is not appropriate to seek consent, either because the individual cannot give consent, it is not reasonable to obtain consent, or because to gain consent would put a child or young person's safety or well-being at risk. Where a decision to share information without consent is made, a record of what has been shared should be kept.
For further information please refer to your Information Sharing (in the Safeguarding Children Partnership procedures).
Key considerations for practitioners seeking consent
- Whenever asking someone, whether adult or child, to give their consent ensure they are able, at that time, in that place and under those circumstances, to give it freely and voluntarily with a full understanding of the decision itself and the potential implications of the decision;
- For the detail regarding specific 'consents' check with the sections of this chapter below;
- If in doubt consult a manager;
- Consider whether someone being asked to give consent may need independent support (for example because they have learning difficulties, they use English as a second language);
- Consider whether someone being asked to give consent is able, at that time and in that place, to give it freely and with full understanding (for example, checking they are not under the influence of medication, drugs or alcohol at that time);
- Consider the mental health of the person being asked to give consent. Are they stressed, isolated, subject to delusions or hearing 'voices'? Are their symptoms intermittent or long term? Do they have access to support when being asked to give consent? Is medical advice regarding their ability to give consent required?
- Be prepared to explain what is being asked for and what the implications of consent may be;
- Be prepared to give time for seeking advice (from, for example, a solicitor) and to think carefully about the consent they are being asked to give;
- Be clear about the implications of not giving consent;
- Record what has been agreed, share and ask the person concerned to sign to say they have read and agreed to what has been recorded.
The UK GDPR and Data Protection Act 2018 do not prevent, or limit, the sharing of information for the purposes of keeping children and young people safe.
To effectively share information:
- All practitioners should be confident of the processing conditions, which allow them to store, and share, the information that they need to carry out their safeguarding role. Information which is relevant to safeguarding will often be data which is considered 'special category personal data' meaning it is sensitive and personal;
- Where practitioners need to share special category personal data, they should be aware that the Data Protection Act 2018 includes 'safeguarding of children and individuals at risk' as a condition that allows practitioners to share information without consent;
- Information can be shared legally without consent, if a practitioner is unable to, cannot be reasonably expected to gain consent from the individual, or if to gain consent could place a child at risk;
- Relevant personal information can be shared lawfully if it is to keep a child or individual at risk safe from neglect or physical, emotional or mental harm, or if it is protecting their physical, mental, or emotional well-being.
3. Legal Capacity in Relation to Parents/those with Parental Responsibility
3.1 Capacity in Relation to Adults
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; and
- 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.
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 practitioner'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 practitioner – for example a person with anorexia nervosa who is unable to comprehend their failing physical condition – then the person 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?
- Supporting the person. For example, can anyone else help or support the person to understand information and to make a choice?
A mental capacity assessment must be carried out when:
- There are indicators that the person may not be able to make the decision at the time that it needs to be made; and
- There is evidence that the person has (or may have) an impairment of, or disturbance in the functioning of the mind or brain; and
- The reason that the person may not be able to make the decision is related to (or may be related to) the impairment in, or disturbance of the functioning of the mind or brain.
3.2 Parents with a Learning Disability
A learning disability is a permanent life-long condition, which is defined by the Department of Health as:
- A significantly reduced ability to understand new or complex information, to learn new skills (impaired intelligence);
- A reduced ability to cope independently (impaired social functioning), which started before adulthood, with a lasting effect on development.
However, many people who have a diagnosed learning disability prefer to use the term 'learning difficulty'. They feel that the term 'learning disability' implies that they cannot learn at all.
There is a far wider group of parents with learning difficulties, who do not have a diagnosis and would not generally fit the eligibility criteria for support services in their own right.
Historically IQ testing was used as an assessment method in an attempt to categorise degrees of learning disability, however, modern assessments use a broader approach to assess strengths and needs, and should be part of a person-centred approach to care and support planning, leading to a person-centred plan describing what is important to and important for the individual to live a good life with as much choice and control as possible.
The case of A Local Authority v G (Parent with Learning Disability)  EWFC B94 identified five key features of good practice in working with parents with learning disabilities:
- Accessible information and communication;
- Clear and co-ordinated referral and assessment procedures and processes, eligibility criteria and care pathways;
- Support designed to meet the needs of parents and children based on assessments of their needs and strengths;
- Long-term support where necessary;
- Access to independent advocacy.
The case also highlighted the need for specialist:
Training - specialist training on dealing with parents with a learning disability, emphasising how best to work with the parents and how to deliver the right support.
Accessible information and communication:
Communication - communicating with parents in a way they understand.
This may include:
- Taking more time to explain things;
- Telling parents things more than once and checking their understanding of what has been said;
- Considering in advance how best to prepare for meetings, and discussing with parents whether they would like an Advocate to support them to prepare for the meeting and take part in it;
- Hands-on approaches, such as role-play, modelling, and filming tasks being completed;
- Step by step pictures showing how to undertake a task;
- Repeating tasks regularly and providing opportunities for frequent practice;
- Use of 'props', for example, containers which will hold the right amount of milk.
Parents should be told, in plain language, what any assessment is, what it is for, what it will involve, and what will happen afterwards. They may need to be told more than once, for example, a parent may need to be reminded what happened at the last meeting.
For further information please refer to your Children of Parents with Learning Disabilities.
The Working Together with Parents Network have produced an update of this guidance – Working Together with Parents Network Good Practice Guidance on Working with Parents with a Learning Disability (2016).
3.3 Parents with Mental Health Problems
Mental health problems are proportionately common in the overall population. The term does not in itself have one clear definition, and therefore the existence of mental health problems should not be taken as a risk factor without contextual information.
The state of a person's mental health is usually not static and can vary according to several factors, correspondingly their capacity to parent safely may also be variable, and therefore, an understanding of the factors which may increase risk is an important part of any assessment.
For further information please refer to your Children of Parents with Mental Health Problems.
3.4 Section 20 Accommodation - Obtaining Parental Consent
A Court of Appeal hearing (L B Hackney v Williams & Anor  EWCA Civ 26) confirmed that 'Consent' under any of the Section 20 provisions was not a statutory requirement as such. It stated that the local authority has a duty to provide accommodation for children, (subject to a parent being able to legally object and / or remove) where the person who had been caring for them was 'prevented (whether or not permanently and for whatever reason) from providing them with suitable accommodation or care'.
This, therefore, supports the local authority in its duties towards children on those occasions where 'parental consent' cannot, for a variety of reasons, be obtained at the time of a child's accommodation or parents cannot effect care of the child themselves.
Nevertheless, with regard to previous court judgments on 'consent', it reflected that they were, 'in short, good practice guidance and a description of the process that the family court expects to be followed'.
Therefore, obtaining parental consent as a matter of good practice remains an essential part of accommodating a child under this part of the 1989 Act. A number of court decisions have been particularly critical of local authorities' actions with regard to consent and great care needs to be undertaken to ensure parents have the appropriate capacity to do this.
Section 20 agreements are not valid unless the parent giving consent has capacity to do so, (in cases where the father also has Parental Responsibility, the consent of both parents should be sought). The consent needs to be properly informed and fairly obtained. Willingness to consent cannot be inferred from silence, submission or acquiescence - it is a positive action.
Detailed guidance on the obtaining of parental consent was given by the High Court in the case of Re CA (A Baby) (2012):
- The social worker must first be satisfied that the parent giving consent does not lack the mental Capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if they are unable:
- To understand the information relevant to the decision;
- To retain that information;
- To use or weigh that information as part of the process of making the decision; or
- To communicate their decision.
The High Court in Re S (Child as parent: Adoption: Consent)  EWHC 2729 (Fam) set out the relevant information that a parent would need to be able to understand, retain and weigh up in order to have competency to consent to the accommodation of a child:
- That the child will be staying with someone chosen by the local authority, probably a foster carer;
- That the parent can change their mind about the arrangements, and request the child back from accommodation at any time;
- That the parent will be able to see the child.
- If there is doubt about Capacity, no further attempts to obtain consent should be made at that time, and advice should be sought from a manager;
- If satisfied that the parent has Capacity, the social worker must be satisfied that the consent is fully informed:
- Does the parent fully understand the consequences of giving such consent?
- Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
- Is the parent in possession of all the facts and issues material to the giving of consent and can this be demonstrated?
- If not satisfied that the consent is fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;
- If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent is both fair and proportionate:
- What is the current physical and psychological state of the parent?
- If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
- Is it necessary for the safety of the child for her to be removed at this time?
- Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
Whether a person has capacity can sometimes be difficult to determine, as some individuals have a learning disability or mental health problem but can present as being more 'able' than in fact they are. Equally, within the context of 'assessing capacity', social workers should approach with great care relying on section 20 agreements from mothers after giving birth, (especially where there is no immediate danger to the child and where, in all probability, no order would be made).
Where there is any concern about a parent/carer's capacity, the social worker should ensure they discuss this issue with their team manager, or that the parent has information from a legal adviser or professional advice. Note: In Coventry City Council v C, B, CA and CH (2012) EWHC2190 (Fam) it was identified that, 'every social worker obtaining consent is under a personal duty (the outcome of which may not be dictated to by others) to be satisfied that the person giving consent does not lack the capacity to do so'.
Note that the High Court in Re S (Child as parent: Adoption: Consent) made clear that parental Capacity to consent to a child being accommodated under s.20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific.
Recording Parental Consent
In Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112 the (then) President of the Family Division, Sir James Munby sets out his view in respect of good practice in the recording of parental consent to a Section 20 agreement:
- Wherever possible the agreement of a parent to the accommodation of their child under section.20 should be properly recorded in writing and evidenced by the parent's signature;
- The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand;
- The written document should spell out, following the language of section 20(8), that the parent can 'remove the child' from the LA accommodation 'at any time';
- The written document should not seek to impose any fetters on the exercise of the parent's right under s.20(8). Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to the effect that 'I have read this document and I agree to its terms'.
3.5 Consent to Adoption
Relinquished Children (where parents are requesting that their child be placed for adoption)
The Local Authority as the Adoption Agency must be sure that the parent or the guardian is competent to give consent.
During the counselling sessions, care should be given to identifying whether the parent(s) are capable of giving consent, especially if there is evidence of: learning disabilities; mental health issues; cultural, ethnic or faith issues; consent being given conditionally, etc.
Where there is concern as to the parent's understanding, an additional and specialist assessment should be sought from another professional - preferably someone who already knows the parent, such as an approved mental health social worker; a disabilities social worker; GP; midwife or health visitor; psychiatrist / psychologist or someone who can offer a faith or cultural perspective.
If the issue of competency is known at the point of referral or at an early stage in the process, then the Local Authority should not ask Cafcass to witness consent, until any such issues are resolved. Where a parent is under 18 years (i.e. considered to be a 'child' themselves within the meaning of the Children Act 1989), they can be considered to give valid consent if assessed as competent by the counselling practitioner.
The High Court in Re S (Child as parent: Adoption: Consent)  EWHC 2729 (Fam) made clear that parental Capacity to consent to a child being accommodated under s.20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific. (That case concerned a 'child parent' (i.e. below 18 years of age) with learning disabilities. The principles, however, will be of relevance in considering parental capacity, irrespective of their age).
The court set out the salient or 'sufficient' information which is required to be understood by a parent regarding extra-familial adoption:
- Your child will have new legal parents, and will no longer be your son or daughter in law;
- Adoption is final, and non-reversible;
- During the process, other people (including social workers from the adoption agency) will be making decisions for the child, including who can see the child, and with whom the child will live;
- You may obtain legal advice if you wish before taking the decision;
- The child will live with a different family forever; you will (probably) not be able to choose the adopters;
- You will have no right to see your child or have contact with your child; it is highly likely that direct contact with your child will cease, and any indirect contact will be limited;
- The child may later trace you, but contact will only be re-established if the child wants this;
- There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted;
- For a limited period of time you may change your mind; once placed for adoption, your right to change your mind is limited, and is lost when an adoption order is made.
When determining the competence of a parent in these circumstances, 'all practicable steps' must be taken to help them to make the decision, for example using simple language, visual aids or other means. A parent will be treated as understanding the information relevant to a decision if they are able to understand an explanation of it given to them in a way which is appropriate to their circumstances.
The decision to consent to adoption is significant and life-changing. Before exercising their decision-making, the parent should freely and fully understand the information set out on the consent forms, which should be conveyed and explained to them in an appropriate way; there is no expectation that the parent would be able to understand the precise language of the consent forms.
If there is any doubt about the competence of a parent to give consent to adoption or placement for adoption, the issue should be referred to a court.
Where it is considered that the parent is not capable of giving informed consent but the Local Authority decide to place the child for adoption following their counselling and assessment, an application for a placement order must be made (see Section 22(1) Adoption and Children Act 2002).
(Please refer to your Court Reports in Placement Order Applications and in Adoption/Special Guardianship Guidance, Placement Order Application).
4. Legal Capacity in Relation to Children/Young People
4.1 Age 16 Years and above - Mental Capacity Act 2005
The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves. The accompanying Code of Practice provides guidance to anyone who is working with and/or caring for people who may lack capacity to make particular decisions.
A person's capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made and the lack of capacity to make a decision is caused by an impairment or disturbance that affects how the mind or brain works.
From the age of 16 years, the Mental Capacity Act 2005 applies. Everyone working with (or caring for) any young person from the age of 16 who may lack capacity must comply with the Mental Capacity Act and its associated Code of Practice.
The Mental Capacity Act applies whenever:
- There are doubts over the ability of a young person (from the age of 16) to make a particular decision at a particular time; and
- The young person has an impairment of, or a disturbance in the functioning of the mind or brain.
Section 3 of the Mental Capacity Act says that a young person (from the age of 16) is able to make their own decision if they can do all of the following four things:
- Understand information given to them;
- Retain that information long enough to be able to make the decision;
- Weigh up the information available to make the decision; and
- Communicate their decision.
For further information, see Mental Capacity Procedure.
4.2 Below 16 Years - Gillick Competence
Children and young people below the age of 16 years may be Gillick Competent to give consent.
- The determination of a child's competence must be decision-specific and child-specific;
- Just because the child lacks competence in one context does not mean they lack it in another;
- The assessment of competence must be made on the current evidence;
- The child should be of sufficient intelligence and maturity to:
- Understand the nature and implications of the decision and the process of implementing that decision;
- Understand the implications of not pursuing the decision;
- Retain the information long enough for the decision-making process to take place;
- Weigh up the information and arrive at a decision;
- Communicate that decision.
Note: Gillick competence is concerned with determining a child's capacity to consent. Fraser guidelines are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment.
5. Looked After Children
5.1 Delegation of Authority to Carers
Decisions about the care of a Looked After child are likely to fall into three broad areas:
- Day-to-day parenting, e.g. routine decisions about health/hygiene, education, leisure activities;
- Routine but longer term decisions, e.g. school choice;
- Significant events, e.g. surgery.
- Authority for day-to-day decision making about a Looked After child should be delegated to the child's carer(s), unless there is a valid reason not to do so*;
- A Looked After child's Placement Plan should record who has the authority to take particular decisions about the child. It should also record the reasons where any day-to-day decision is not delegated to the child's carer;
- Decisions about delegation of authority should take account of the Looked After child's views, and consideration should be given as to whether a Looked After child is of sufficient age and understanding to take some decisions themselves.
*'The carer' means the foster carer or registered manager of the children's home where the child resides.
For further information please refer to your Delegation of Authority to Foster Carers and Residential Workers.
5.2 Consent to Health Care Assessments
A valid consent will be necessary for a Health Care Assessment. Who is able to give this consent will depend on the age and understanding of the child. In the case of a very young child, the local authority as corporate parent can give the consent. An older child with mental capacity may be able to give their own consent.
Young people aged 16 or 17
Young people aged 16 or 17 with mental capacity are presumed to be capable of giving (or withholding) consent to their own medical assessment/treatment, provided the consent is given voluntarily and they are appropriately informed regarding the particular intervention. If the young person is capable of giving valid consent, then it is not legally necessary to obtain consent from a person with Parental Responsibility.
Children under 16 – 'Gillick Competent'
A child of under 16 may be Gillick Competent to give (or withhold) consent to medical assessment and treatment, i.e. they have sufficient understanding to enable them to understand fully what is involved in a proposed medical intervention.
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.
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.
Children under 16 - Not 'Gillick' Competent
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. Consent given by one person with Parental Responsibility is valid, even if another person with Parental Responsibility withholds consent. (However, legal advice may be necessary in such cases). Where the local authority, as corporate parent, is giving consent, the ability to give that consent may be delegated to a carer (foster carer or registered manager of the children's home where the child resides) as a part of 'day-to-day parenting', which will be documented in the child's Placement Plan (please refer to your Delegation of Authority to Foster Carers and Residential Workers Procedure).
For further information on consent, see Department of Health and Social Care Reference Guide to Consent for Examination or Treatment.
5.3 Deprivation of Liberty of a Child/Young Person
Local authorities need to consider whether any children in need, or looked-after children, (especially those in foster care or in a residential placement), are subject to restrictions which amount to a Deprivation of Liberty and, if so, how this is to be authorised.For further information see Deprivation of Liberty Procedure.
6. NICE Quality Standard: Decision-Making and Mental Capacity
NICE Quality Standard: Decision-Making and Mental Capacity, is a Quality Standard published by the National Institute for Health and Care Excellence (NICE) covering decision making in people aged 16 and over, using health and social care services who may lack capacity to make their own decisions (now or in the future). It aims to support implementation of the aims and principles of the Mental Capacity Act 2005 and relevant Codes of Practice. It is not a substitute for these.
The Quality Standard is based around four ‘Quality Statements’:
- Statement 1 People aged 16 and over who may lack capacity to make decisions are supported with decision making in a way that reflects their individual circumstances and meets their particular needs;
- Statement 2 People aged 16 and over at risk of losing capacity to make decisions, and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review;
- Statement 3 People aged 16 and over who are assessed as lacking capacity to make a particular decision at the time that decision needs to be made, have a clear record of the reasons why they lack capacity and the practicable steps taken to support them;
- Statement 4 People aged 16 and over who lack capacity to make a particular decision at the time that decision needs to be made have their wishes, feelings, values and beliefs accounted for in best interests decisions.
Against each quality statement are a set of Quality Measures which are designed to enable measurement of whether the Statements are being met, as well as an indication of what the Statement means for different audiences, including the relevant individuals themselves.