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.

AMENDMENT

In September 2023 amendments were made to reflect case-law in relation to assessing legal capacity.

1. Introduction

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;
  • Information sharing;
  • Legal proceedings, e.g. where a Gillick competent child desires separate legal representation and/or their wishes differ from the views of their children's Guardian ad Litem;
  • Parent's capacity to instruct solicitors and participate in court proceedings;
  • 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'.

Under the UK General Data Protection Regulations (UK GDPR), there must always be a lawful basis for sharing of personal information relating to children and families. The clear consent of the data subject is one of the available legal bases under which information can be shared - but there are five others, and it is important to always choose the lawful basis that most closely reflects the true nature of your relationship with the individual and the purpose of the processing / sharing.

The UK GDPR sets a high standard for consent to share information, and requires that it must be specific, time limited and able to be withdrawn.

Consent in this context would mean that children and families are offered real choice and control about whether their information will be shared or not.

It is not necessary therefore to seek consent to share information for the purposes of safeguarding and promoting the welfare of a child, providing there is another lawful basis for the sharing.

The statutory guidance Working Together to Safeguard Children (DfE) states:

You do not need consent to share personal information. It is one way to comply with the data protection legislation, but not the only way. The GDPR provides a number of bases for sharing personal information. It is not necessary to seek consent to share information for the purposes of safeguarding and promoting the welfare of a child provided that there is a lawful basis to process any personal information required.

The legal bases that may be appropriate for sharing data in these circumstances could be 'legal obligation' or 'public task' which includes performance of a task in the public interest or the exercise of official authority. Each of the legal bases under GDPR has different requirements.

For further information, see: North Somerset Children's Partnership Procedures, Information Sharing Procedure.

See: The UK General Data Protection Regulation (UK GDPR) and Data Protection Act 2018.

3.1 Capacity in Relation to Adults

See also Mental Capacity Act 2005 Resource.

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.

There is a 2-stage test to determine this:

  • Stage 1 – Is the  person unable to make a particular decision (the functional test)?
  • Stage 2 – Is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person's mind or brain? This could be due to long-term conditions such as mental illness, or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol (the diagnostic test).

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 through any means – this could be by talking or using sign language and includes simple muscle movements such as blinking an eye or squeezing a hand.

In order to make their own decision the person must be able to demonstrate their ability in all of the areas of the functional test.

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?

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) [2017] 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, see: North Somerset Safeguarding Partnership Procedures, Parents with Learning Disabilities Procedure.

See also: Good Practice Guidance on Working with Parents with a Learning Disability (Working Together with Parents Network)

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, see: North Somerset Safeguarding Partnership Procedures, Parents with Mental Health Problems Procedure.

See also:

3.4 Section 20 Accommodation - Obtaining Parental Consent

The Supreme Court in Williams and another (Appellants) v London Borough of Hackney (Respondent) [2018] UKSC 37 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) [2017] 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:
    1. That the child will be staying with someone chosen by the local authority, probably a foster carer;
    2. That the parent can change their mind about the arrangements, and request the child back from accommodation at any time;
    3. 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) [2015] 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) [2017] 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:

  1. Your child will have new legal parents, and will no longer be your son or daughter in law;
  2. Adoption is final, and non-reversible;
  3. 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;
  4. You may obtain legal advice if you wish before taking the decision;
  5. The child will live with a different family forever; you will (probably) not be able to choose the adopters;
  6. 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;
  7. The child may later trace you, but contact will only be re-established if the child wants this;
  8. There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted;
  9. 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 capacity 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).

See also: Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance, Placement Order Applications.

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:

  1. Understand information given to them;
  2. Retain that information long enough to be able to make the decision;
  3. Weigh up the information available to make the decision; and
  4. 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:
    1. Understand the nature and implications of the decision and the process of implementing that decision;
    2. Understand the implications of not pursuing the decision;
    3. Retain the information long enough for the decision-making process to take place;
    4. Weigh up the information and arrive at a decision;
    5. 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.

Principles:

  • 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, see: Delegation of Authority to Foster Carers and Residential Workers Procedure.

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 (see: 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.

The High Court in Herefordshire Council -v- M and F and others (Re YY (Children: Conduct of the Local Authority)) stated that the making of a decision which is likely to result in the death of a looked after child (such as the withdrawal of life support treatment) comes within a small category of cases where, notwithstanding the local authority's powers to exercise corporate parental responsibility under section 33(3)(b) Children Act 1989, the consequences of the exercise of that particular act of parental responsibility are so profound and have such an impact on the child, and/or the Article 8 rights of other parties who share parental responsibility, that the matter must come before the High Court for its consideration and determination. In such cases, therefore, urgent legal advice must be sought, even if all parties are in agreement that medical treatment should be withdrawn.

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.