Consent to Examination or Treatment Policy - Halton and St Helens ...

CLINICAL POLICY
For use in:
Target Audience:
Purpose
Document Author:
Approved by:
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Policy Indexed:
Consent to Examination or Treatment Policy
Controlled Document No:
PCT Wide
All Trust Clinical Staff
To identify the processes and systems
to ensure that the correct level of
consent has been provided between
health professionals and patients.
Professional Development Manager
Policy Sub Group
GAC
Version Number: 2.0
Effective From: March 2009
Review Date: March 2012
Statutory and legal requirements
Implementation Lead
Implementation Process
Healthcare Standards for Better Health
DoH Model Consent Policy
NHSLA Risk Management Standards
Report ‘Make It Happen’ published by
CASU
Mental Capacity Act 2006
Professional Development Manager
Refer to the attached plan
The Trust is committed to creating an environment that promotes equality and embraces
diversity, both within our workforce and in service delivery. This document should be
implemented with due regard to this commitment
This document seeks to uphold the duties and principles contained within the Human Rights
Act. All Staff within the PCT should be aware of its implications
This policy is due for review by March 2012. After this date, this policy and associated process
documents may become invalid. All users should ensure that they are consulting the current
version of this document.

Key individuals involved in developing the document
Name
Designation
Linda Spooner
Professional Development Manager
Debbie Fairclough
Assistant Chief Executive
Swati Chapman
Mental Capacity Lead
Circulated to the following individuals for comments
Name
Designation
Margaret Evans
Caldicott Guardian
Dot Keates
Head of Clinical Governance
Seamus McGirr
Executive Nurse
Michelle Bradshaw
Asst Director Child & Family Health
Ros Connolly
Asst Director Child & Family Health
Barry Hutton
Asst Director of Operations
Fiona Bremner
Divisional Manager
Vicky Heilbron
Divisional Manager
Philip Chalmers
Divisional Manager
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Table of Contents
Introduction ..................................................................................................................................4
Purpose........................................................................................................................................4
Scope...........................................................................................................................................4
Objectives ....................................................................................................................................5
Definitions ....................................................................................................................................5
Duties and Responsibilities ..........................................................................................................7
Process........................................................................................................................................8
Training......................................................................................................................................17
Implementation, monitoring and review......................................................................................17
Documentation...........................................................................................................................18
References.................................................................................................................................19
Appendix 1 .................................................................................................................................21
Appendix 2 .................................................................................................................................22
Appendix 3 .................................................................................................................................24
Appendix 4 .................................................................................................................................31
Appendix 5 .................................................................................................................................38
Appendix 6 .................................................................................................................................43
Appendix 7 .................................................................................................................................55
Appendix 8 .................................................................................................................................56
Appendix 9 .................................................................................................................................58
Appendix 10 ...............................................................................................................................59
Appendix 11 ...............................................................................................................................60
Appendix 12 ...............................................................................................................................63
Appendix 13 ...............................................................................................................................64
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INTRODUCTION
Patients have a fundamental legal and ethical right to determine what happens to their own
bodies. Valid consent to treatment is therefore absolutely central in all forms of healthcare, from
providing personal care to undertaking major surgery. Seeking consent is also a matter of
common courtesy between health professionals and patients.
PURPOSE
It is the responsibility of the professional providing the care to ensure that the correct level of
consent has been provided. “Consent” is a patient’s agreement for a health professional to
provide care or carry out an assessment. This policy identifies the processes and systems in
operation at NHS Halton and St Helens that should ensure “consent” is achieved when relevant.
SCOPE
The requirement to obtain consent can sometimes be a complex matter. This policy outlines
those occasions which may require consent and details the processes which must be
undertaken in different circumstances.
Patients may indicate consent non-verbally (for example by presenting their arm for their pulse
to be taken), verbally, or in writing. For the consent to be valid, the patient must:
be competent to make the particular decision
have received sufficient information to take it; and
not be acting under duress
The context of consent can take many different forms, ranging from the active request by a
patient for a particular treatment (which may or may not be appropriate or available) to the
passive acceptance of a health professional’s advice.
In some cases, the health professional will suggest a particular form of treatment or
investigation and after discussion the patient may agree to accept it. In others, there may be a
number of ways of treating a condition, and the health professional will help the patient to
decide between them. Some patients, especially those with chronic conditions, become very
well informed about their illness and may actively request particular treatments. In many cases,
‘seeking consent’ is better described as ‘joint decision making’. The patient and health
professional need to come to an agreement on the best way forward, based on the patient’s
values and preferences and the health professional’s clinical knowledge.
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Where an adult patient lacks the mental capacity (either temporarily or permanently) to give or
withhold consent for themselves, no one else can give consent on their behalf. However,
treatment may be given if it is in their best interests, as long as it has not been refused in
advance in a valid and applicable advance directive. For further details on advance directives
see the Department of Health’s Reference guide to consent for examination or treatment
(chapter 1, paragraph 19).
Policy Statement
This policy sets out the standards and procedures in NHS Halton and St Helens, which aim to
ensure that health professionals are able to comply with national guidance. While it is primarily
concerned with healthcare, social care colleagues should also be aware of their obligation to
obtain consent before providing certain forms of social care, e.g. Those that involve touching
the patient or client. Health professionals must also be aware of any guidance on consent
issued by their own regulatory bodies.
The Department of Health has issued a range of guidance documents on consent, (see
Appendix A) and these should be consulted for details of the law and good practice
requirements. ‘12 key points on consent: the law in England’ has been attached in full (see
Appendix B).
OBJECTIVES
This policy outlines the procedures and processes that have to be completed and actions that
must be taken by health professionals undertaking clinical procedures that require consent.
DEFINITIONS
Types of Consent
Consent is often wrongly equated with a patient’s signature on a consent form. A signature on
a form is evidence that the patient has given consent, but is not proof of valid consent. If a
patient is rushed into signing a form, on the basis of too little information, the consent may not
be valid, despite the signature. Patients may, if they wish, withdraw consent after they have
signed a form: the signature is evidence of the process of consent-giving, not a binding contract.
If a patient has given valid verbal consent, the fact that they are physically unable to sign the
form is no bar to treatment.
Implied Consent
Many examinations provided by health professional were carried out under implied consent.
This is no longer considered best practice as staff should not rely on a patient’s apparent
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compliance with a procedure as a form of consent, i.e. the fact that a patient lies down on an
examination couch does not in itself indicate that the patient has understood what is proposed
and why. For consent to be valid, the professional must demonstrate through documentation
that the patient understands the process, procedure, problems and outcome. If there is an
alternative to this procedure, this must also be fully discussed.
Verbal Consent
Verbal consent should be sought before any procedure takes place. A clear explanation of
what is to be done, any risks to consider and any alternative should be discussed with the
patient. The discussion which takes place should be recorded in the case notes. Written
evidence of consent should include how you tested that the patient understood what was going
to be done to them; this will demonstrate that informed consent was given. As with all entries to
case notes, the date and time must be recorded and the entry signed.
Written consent
There are no legal requirements in terms of specific procedures that require written consent.
However, as a matter of good practice, the General Medical Council guidance states that written
consent should be obtained in cases where:
The treatment is complex, or involves significant risks and /or side effects (the term ‘risk’
is used throughout to refer to any adverse outcome, including those which some health
professionals would describe as ‘side-effects’ or complications’)
The provision of clinical care is not the primary purpose of the investigation or
examination
There may be significant consequences for the patient’s employment, social or personal
life.
The treatment is part of research programme approved by the PCT
Minor surgery performed under local anesthesia. However, with the trend towards more
procedures, investigations and treatments being carried out on an outpatient or day case
basis, it should also include other treatments such as certain forms of drug therapy,
cytotoxic therapy and investigations or treatments involving ionizing radiations.
Legal Requirements
It is rarely a legal requirement to seek written consent but it should be regarded as best practice
and mandatory to do so if any of the circumstances indicated by the GMC Guidance (above)
apply.
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Mental Capacity Act 2006
This policy must be read in conjunction with the PCT policy on Mental Capacity Act and the
Mental Capacity Act Code of Practice. The Mental Capacity Act 2006 provides a legal
framework for acting and making decisions on behalf of people who lack the mental capacity to
make specific decisions for them. The Act provides a statutory framework to empower and
protect vulnerable people who may not be able to make their own decisions. It makes it clear
who can take decisions in which situations and how they should go about this. It enables people
to plan ahead for a time when they may lose capacity. There are 10 guiding principles set out in
the Act that must be followed when a member of PCT is assessing the capacity of an individual
to provide valid consent to treatment or refusal of treatment.
DUTIES AND RESPONSIBILITIES
PCT Board
The Board is responsible for ensuring that the PCT adheres to the specific Department of
Health Guidance and guidelines in all areas relating to consent.
Chief Executive
The Chief Executive has responsibility for meeting all statutory requirements and for
implementing guidance issued by the Department of Health in respect of Integrated and Clinical
Governance.
Director Clinical Standards
The Director of Clinical Standards is directly responsible for ensuring that the PCT has a formal
consent policy and that all healthcare professionals know of and apply the requirements of the
policy at all times.
Managers
All managers have a general responsibility to ensure that staff is familiar with the requirements
of all policies that apply to them. Any member of their staff who has been given particular
responsibilities regarding consent should have these reflected in their work objectives.
Clinical Executive Committee (CEC)
This sub-committee of the Board is responsible for reviewing and agreeing the processes for
managing clinical risk in the organisation and reporting to the Board. CEC is directly
responsible for advising the Board on the implementation of key Department of Health
Guidance such as Consent.
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Healthcare Professionals
It is a health professional’s own responsibility to ensure that when they require colleagues to
seek consent on their behalf they are confident that the colleague is competent to do so; and to
work within their own competence and not to agree to perform tasks which exceed that
competence.
PROCESS
For significant procedures i.e. commencement or course of treatment or new course of
treatment / care, it is essential for health professionals to document clearly both:
A patient’s agreement to the intervention, and
The discussions, which led up to that agreement
This may be done either through the use of a consent form (with further details in the patient
notes if required), or through documenting in the patient’s notes that they have given verbal
consent.
Completed forms should be kept with the patient’s notes.
Any changes to a form, made after the form has been signed by the patient, should be initialed
and dated by both patient and health professional.
It will not usually be necessary to document a patient’s consent to routine and low risk
procedures, such as providing personal care or taking a blood sample. However, it would be
advisable to do so if there is any reason to believe that:
The consent may be disputed later, or
If the procedure is of particular concern to the patient (e.g. if they have declined or have
become very distressed about similar care in the past).
Provision of Treatment
The provision of information is central to the consent process. Before patients can come to a
decision about treatment, they need comprehensive information about their condition, possible
treatments/investigations risks and benefits (including the risks/benefits of doing nothing); they
also need to know whether additional procedures are likely to be necessary as part of the
procedure e.g. a blood transfusion, or the removal of particular tissue.
Once a decision to have a particular treatment has been made, patients need information about
what will happen, where to go, how long they will be in hospital, how they will feel afterwards
and so on. Patients, and those close to them, will vary in how much information they want,
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anging from those who want as much detail as possible, (including details of rare risks), to
those who ask health professionals to make decisions for them.
Investigation
Once a decision to have a particular investigation is undertaken, the patient requires information
to determine what will happen with the results of the investigation should further treatment or
care be required. E.g. In the case of cervical screening.
In the case of obtaining blood for investigations where the outcome may have a life changing
effect on not only the patient but their family, children and any other contacts e.g. in the case of
testing for a notifiable disease or if Chlamydia or HIV test is being done.
There will always be an element of clinical judgment in determining what information should be
given; however, the presumption must be that the patient wishes to be well informed about the
risks and benefits of the various options. Where the patient makes it clear (verbally or nonverbally)
that they do not wish to be given this level of information, this should be documented.
Where the outcome may require contact tracing, full counseling must be given and consent
obtained to contact trace prior to any names being obtained from the patient. Written consent
must be obtained that the patient has been fully counseled and agrees to contacts being traced.
Once names have been obtained, it becomes the responsibility of the PCT to action
appropriately i.e. blood investigations where the outcome may have a life changing result.
When should consent be sought
When a patient formally gives their consent to a particular intervention, this is only the endpoint
of the consent process. It is helpful to see the whole process of information provision,
discussion and decision making as part of ‘seeking consent’. This process may take place one
stage at a time or over a series of meetings and discussions, depending on the seriousness of
what is proposed and the urgency of the patient’s condition.
Single stage process
In many cases, it will be appropriate for a health professional to initiate a procedure immediately
after discussing it with the patient, e.g., during an ongoing episode of care a physiotherapist
may suggest a particular manipulative technique, explain how it might help the patient’s
condition and whether there are any significant risks. If the patient is willing for the technique to
be used, they will then give their consent and the procedure can go ahead immediately. In many
such cases, consent will be given verbally.
If a proposed procedure carries significant risks, it will be appropriate to seek written consent.
Health professionals must take into consideration whether the patient has had sufficient chance
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to absorb the information necessary for them to make their decision. As long as it is clear that
the patient understands and consents, the health professional may then proceed.
Processes with two or more stages
In most cases where written consent is being sought, treatment options will generally be
discussed well in advance of the actual procedure being carried out. This may be on just one
occasion (either within primary care or in a hospital out-patient clinic), or it might be over a
whole series of consultations with a number of different health professionals. The consent
process will therefore have at least two stages:
The provision of information, discussion of options and initial (verbal) decision
The confirmation that the patient still wants to go ahead
The consent form should be used as a means of documenting the information stage(s), as well
as the confirmation stage.
Patients receiving elective treatment or investigations for which written consent is appropriate
should be familiar with the contents of their consent form before they arrive for the actual
procedure. They should also receive a copy of the page documenting the decision-making
process. They may be invited to sign the form, confirming that they wish treatment to go ahead,
at any appropriate point before the procedure i.e. in outpatients, at a pre-admission clinic, or
when they arrive for treatment. If a form is signed before patients arrive for treatment a member
of the healthcare team must check with the patient at this point whether they have any further
concerns and whether their condition has changed. This is particularly important where there
has been a significant lapse of time between the form being signed and the procedure.
When confirming the patient’s consent and understanding, it is advisable to use a form of words
which requires more than a yes/no answer from the patient e.g. “tell me what you’re expecting
to happen”, rather than “is everything all right?”
While administrative arrangements will vary, it should always be remembered that for consent to
be valid, the patient must feel that it would have been possible for them to refuse, or change
their mind.
It will rarely be appropriate to ask a patient to sign a consent form after they have begun to be
prepared for treatment (e.g. when preparations are being made to administer an injection),
unless this is unavoidable because of the urgency of the patient’s condition.
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Who is responsible for obtaining consent?
The health professional carrying out the procedure is ultimately responsible for ensuring that the
patient is genuinely consenting to what is being done, and it is they who will be held responsible
in law if this is challenged later.
When verbal or non-verbal consent is being sought at the time the procedure will be carried out,
this will naturally be done by the health professional responsible. However, teamwork is a
crucial part of the way the NHS operates, and where written consent is being sought, it may be
appropriate for other members of the team to participate in the process of seeking consent.
Availability of consent forms
Standard consent forms and forms for adults who are unable to give consent (for whatever
reason) are reproduced in Appendices C-F and are available on the intranet. There are three
versions of the consent form and a proforma for completion where a patient may lack capacity
or decisions are being made in the patient’s best interests.
Form 1 - for adults or competent children, requiring anesthesia
Form 2 - for parental consent for a child or young person
Form 3 - for cases where it is envisaged that the patient will remain alert throughout the
procedure and no anesthetist will be involved in their care
Clinical Proforma for the 2 stage assessment for mental capacity assessments and
best interest decisions -for adults who are unable to consent for investigation or
treatment
Form 3 may be thought more appropriate for use than form 1 in situations where patients:
Do not need to be made aware of issues surrounding general or regional anesthesia.
Will not need to make any advance decisions about additional procedures (because they
will be in a position to make any such decisions at the time if necessary)
Are having screening which may result in the need to contact trace.
Completing consent forms
The standard consent form (Form 1) provides space for a health professional to provide
information to patients and to sign confirming that they have done so. The health professional
providing the information must be judged competent to do so, either because:
They themselves carry out the procedure
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They have received specialist training in advising patients about this procedure or have
been assessed as competent
Or are aware of their own knowledge limitations and are subject to audit
Refusal of treatment
If the process of seeking consent is to be a meaningful one, refusal must be one of the patient’s
options. A competent adult patient is entitled to refuse any treatment, except in circumstances
governed by the Mental Health Act 1983. The situation for children is more complex -see the
Department of Health’s ‘Seeking consent: working with children’ for more detail. The following
paragraphs apply primarily to adults.
If, after discussion of possible treatment options, a patient refuses all treatment, this fact should
be clearly documented in their notes.
If the patient has already signed a consent form, but then changes their mind, the Health
professional (and where possible the patient) should note this on the form.
Where a patient has refused a particular intervention, the health professional must ensure
continued provision of any other appropriate care to which consent has been given. Health
professionals should also ensure that the patients realise they are free to change their mind and
accept treatment later if they wish to do so. Where delay may affect their treatment choices,
they should be advised accordingly.
If a patient consents to a particular procedure but refuses certain aspects of the intervention, the
health professional must explain to the patient the possible consequences of their partial
refusal.
If health professionals genuinely believe that the procedure cannot be safely carried out under
the patient’s stipulated conditions, they are not obliged to perform it. They must, however,
continue to provide any other appropriate care. If another health professional believes that the
can be carried out safely under the conditions specified by the patient, the patient’s care must
be transferred on request, if at all possible.
Emergencies
In emergencies, the two-stage consent process (discussion of options and confirmation that the
patient wishes to go ahead) will follow straight on from each other. In these circumstances, it
may also be appropriate to use the patient’s notes to document any discussion and the patient’s
consent, rather than using a form. If, at times of emergency, the patient’s situation limits the
quantity of information that can be given, it should not affect its quality.
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Specific areas of consent
Treatment of young children – parental responsibility
Only people with ‘parental responsibility’ are entitled to give consent on behalf of their children.
Health professionals should be aware that not all parents have parental responsibility for their
children, e.g. unmarried fathers do not automatically have such responsibility although they can
acquire it. If there is any doubt about the status of the person with the child in respect of their
parental responsibility for that child, health professionals MUST check.
Where it is not a scheduled appointment, or it is the first appointment, and a child is brought by
someone who does not have parental responsibility (PR), the clinician should check directly with
the person who has PR, to establish whether they consent to the treatment/have authorised this
other person to give consent. The only exception to that would be where a child is brought for
urgent/emergency treatment e.g. dental and podiatry by someone who has "care of" the child at
that particular time.
For more information about who has parental responsibility see Appendix 8
.
Immunisation of younger children
For young children not competent to give or withhold consent, such consent can be given by a
person with parental responsibility, provided that person is capable of consenting to the
immunisation in question and is able to communicate their decision. Where this person brings
the child in response to an invitation for immunisation, and, following an appropriate
consultation presents the child for that immunisation, these actions may be considered evidence
of consent. (See appendix 8 who has parental responsibility)
Immunisation in schools
Where immunisations are offered in the school setting the situation differs depending on the age
and competence of the individual child or young person.
1. Young people aged 16 and 17 are entitled to consent to their own medical treatment.
2. Younger children who understand fully what is involved in the proposed procedure
(referred to as “Fraser” or “Gillick” competent) can also give consent, although ideally
their parents will be involved.
3. If a person aged 16 or 17 or a ‘Fraser competent’ child refuses but the parent gives
consent, it is the parent’s view that has force. A court may also over-ride such a
child’s refusal. However, the power to over-ride cannot be exercised in all cases –
more detail is set out in paragraph 8 of the ‘Reference guide to consent for
examination or treatment’, (see appendix 1 for details of access to the guide)
4. If a person aged 16 or 17 or a ‘Fraser competent’ child consents to treatment, a
parent cannot over-ride that consent.
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5. An immunisation can be administered, to a Gillick competent child who gives their
consent, in the absence of parental consent. As a matter of good practice such
children should be encouraged to discuss the issue with their parents, in the hope of
obtaining their support for the vaccination. Parents are informed by way of issuing
letters / leaflets of what is involved with these vaccinations and when they are
planned to take place.
6. There is no need for immunisers to obtain positive parental consent to the
vaccination, once that information has been provided. If however, someone with
parental responsibility for the child registers a strong objection to any vaccination
proceeding, it is recommended that legal advice be sought prior to any vaccination
taking place. In the event of any complaints from those with parental responsibility,
these will be dealt with by the PCT Complaints and Clinical Governance Team.
7. If there are any concerns re ‘Parental Responsibility’ the Designated Nurse for
Looked after Children or the Designated Nurse Child Protection should be contacted.
They will inform staff of the necessary actions to be undertaken and the correct paper
work to complete.
Procedure when patients lack the capacity to give or withhold consent
The standard consent forms should never be used for adult patients unable to consent for
themselves.
Where an adult patient does not have the capacity to give or withhold consent to a
significant intervention, the Proforma for the 2 stage assessment for mental capacity
assessment and best interest decisions should be used (Appendix 6)
Health Professionals should note:
The assessment of the patient’s capacity
Why the health professional believes the treatment to be in the patient’s best
interests, and
The involvement of people close to the patient
For more minor interventions, this information should be entered in the patient’s notes
An apparent lack of capacity to give or withhold consent may in fact be the result of
communication difficulties rather than genuine incapacity. Health professionals should involve
appropriate colleagues in making such assessments of incapacity, such as specialist learning
disability teams and speech and language therapists, unless the urgency of the patient’s
situation prevents this. If at all possible, the patient should be assisted to make and
communicate their own decision, for example by providing information in non-verbal ways
where appropriate.
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Occasionally, there will not be a consensus on whether a particular treatment is in the best
interests of an incapacitated adult. Where the consequences of having, or not having the
treatment are potentially serious, a court declaration can be sought.
Seeking consent for anesthesia
When an anesthetist is involved in a patient’s care, it is their responsibility to seek consent for
anesthesia, having discussed the benefits and risks. However, in elective treatment it is not
acceptable for the patient to receive no information about anesthesia until their pre-operative
visit from the anesthetist. At such a late stage the patient will not be in a position to genuinely
make a decision about whether or not to undergo anesthesia. Patients should therefore either
receive a general leaflet about anesthesia at a previous visit, or have the opportunity to discuss
anesthesia in a pre-assessment clinic.
The anesthetist should ensure that the discussion with the patient, and their consent, is
documented:
In the anesthetic record, and
In the patient’s notes, or
On the consent form
Where the clinician providing the care is personally responsible for anesthesia (e.g. where local
anesthesia or sedation is being used), then he or she will also be responsible for ensuring that
the patient has given consent to that form of anesthesia.
Where general anesthesia or sedation is being provided as part of dental treatment, the General
Dental Council currently holds dentists responsible for ensuring that the patient has all the
necessary information. In such cases, the anesthetist and dentist will therefore share that
responsibility.
Provision for patients where English is not there first language
This PCT is committed to ensuring that patients whose first language is not English receive the
information they need and are able to communicate appropriately with healthcare staff. It is not
appropriate to use children to interpret for family members who do not speak English.
Language Line is used by Halton & St Helens PCT for interpretation service and translation of
documents, the contact number is 0845 310990. Each professional using the service has been
allocated a code to access the service. All new professionals can request a code from the
Executive Service Manager on 01744 457306.
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We also have access to Deaf Sign Language Service by St Helens Deaf Centre, they require
two weeks notice 01744 23887.
Consent forms in a variety of languages are available on the Department of Health website at
www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/ConsentConsentGenera
lInformation/ConsentGeneralArticle/fs/en
Access to health professionals between formal appointment
After an appointment with a health professional in primary care patients will often think of further
questions they would like answered before they make their decision. Contact details of the
health professional should be given to the patient for further discussion if necessary.
Clinical photography and conventional or digital video recordings
Photographic and video recordings of a patient made for clinical purposes form part of
that patient’s record.
Although consent to certain recordings, such as X-rays, is implicit in the patient’s consent to the
procedure, health professionals should always ensure that they make clear in advance if any
photographic or video recording will result from that procedure.
Photographic and video recordings of a patient which are made for treating or assessing
a patient must not be used for any purpose other than the patient’s care or the audit of that
care, without the express consent of the patient or a person with parental responsibility for the
patient.
The one exception to this principle is set out in paragraph 3 below;
To use such a recording for education, publication or research purposes, written consent must
be sought, ensuring that the person giving consent is fully aware of the possible uses of the
material. In particular, the person must be made aware that the health professional may not be
able to control future use of the material once it has been placed in the public domain.
If a child is not willing for a recording to be used, you must not use it, even if a person with
parental responsibility consents.
Photographic and video recordings, made for treating or assessing a patient and from which
there is no possibility that the patient might be recognised, may be used within the clinical
setting for education or research purposes without express consent from the patient, as long as
this policy is well publicised. However, express consent must be sought for any form of
publication.
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Photographic or video recordings of a patient made specifically for education,
publication or research purposes require written consent of the patient (or where appropriate
of a person with parental responsibility) for the recording to be made and for it to be used.
Patients must know that they are free to stop the recording at any time and that they are entitled
to view it if they wish, before deciding whether to give consent to its use. If the patient decides
that they are not happy for any recording to be used, it must be destroyed. As with recordings
made with therapeutic intent, patients must receive full information on the possible future uses
of the recording, including the fact that it may not be possible to withdraw it once it is in the
public domain.
The situation may sometimes arise where you wish to make a recording specifically for
education, publication or research purposes, but the patient is temporarily unable to give or
withhold consent, for example they are unconscious. In such cases, a recording may be made,
but consent must be given as soon as the patient regains capacity. The recording must not be
used until consent has been received, and if the patient does not consent to any form of use,
the recording must be destroyed.
Professional liability
Doctors and other health professionals involved in the administration of immunisation are
usually not negligent if acting within their competencies and within practice that conforms to that
of a responsible body of medical opinion held by practitioners skilled in the field in question 1,2
However, the courts are willing to be critical of a ‘responsible body’ of medical opinion and will
be the final arbiters of what constitutes responsible practice.
NB: This summary cannot cover all situations. For more detail, please see the ‘Reference guide
to consent for examination or treatment’, (For details of access to the guide please see
Appendix A).
TRAINING
The PCT will ensure that all members of staff receive the level of training necessary for them to
fulfill their individual responsibilities identified in this policy.
IMPLEMENTATION, MONITORING AND REVIEW
The Governance Assurance Committee will monitor the implementation of this policy. All
revisions to the document must be agreed through the PCT policy approval process.
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DOCUMENTATION
Related policies and procedures
This document should be read in conjunction with:
Accident and Incident Reporting and Management Policy
Comments, Concerns and Complaints Policy
Confidential Code for Reporting (Whistle blowing)
Health and Safety Policy
Consent to intimate treatment and Chaperoning Policy
Mental Capacity Act Policy
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REFERENCES
Reference
National Health Service Litigation Authority
Directions 2005
Relevance (whole
document or section,
please state)
Whole
Evidence Grade
NHS guidance
NHS Halton & St Helens Mental Capacity Act
Policy (2006)
Whole
Trust policy
DoH ‘Good Practice in Consent: Achieving the
NHS Plan Commitment to Patient-Centred
Consent Practice’ (HSC 2001/023)
Whole
DoH guidance
DoH – Good Practice in Consent
Implementation Guide: Consent to Examination
or Treatment Nov 2001
Whole
DOH guidance
DoH ‘ Seeking consent: Working with children’
2001
Whole
DoH guidance
DoH ‘ Seeking consent: Working with Older
People’ 2001
Whole
DoH guidance
DoH ‘ Seeking consent: Working with people
with learning disabilities’ 2001
Whole
DoH guidance
DoH ‘ Standards for Better Health’ Feb 2004 Whole DoH guidance
DoH ‘ Code of Practice for Mental Capacity Act
2005
General Medical Council ‘ Seeking Patient’s
consent: the ethical considerations ( Nov 1998)
Practice Note (Official Solicitor: Declaratory
Proceedings: Medical and Welfare Decisions for
Adults Who Lack Capacity) 2006
Whole
Whole
Whole
DoH guidance
GMC guidance
Page 19 of 64

Relevant links
The following documents have been used as guidance in compiling the policy.
http://www.dh.gov.uk/PolicyandGuidance/HealthAndSocialCareTopics/Consent/ConsentGenera
lInformation/fs/en
Page 20 of 64

APPENDIX 1
Access to Useful Reference Documents
1. Reference guide to consent for examination or treatment
This provides a comprehensive summary of the current law on consent, and includes
requirements of regulatory bodies such as the General Medical Council where these are
more stringent.
Copies are available from the NHS Response Line 0541-555-455 may also be accessed on
the internet at:
http://www.dh.gov.uk/PolicyandGuidance/HealthAndSocialCareTopics/Consent/ConsentGe
neralInformation/fs/en.
2. 12 key points on consent: the law in England
This has been distributed widely to health professionals working in England. This one-page
document summarises those aspects of the law on consent which arise on a daily basis
and is attached at Appendix B. Further copies are available from www.doh.gov.uk/consent.
3. Specific guidance, incorporating both the law and good practice advice, is available for
health professionals working with children, with people with learning disabilities and with
older people. Copies of these booklets are available on the Internet at
www.doh.gov.uk/consent.
Page 21 of 64

APPENDIX 2
12 Key Points on Consent: The Law in England
When do health professionals need consent from patients?
1. Before you examine, treat or care for competent adult patients you must obtain their
consent.
2. Adults are always assumed to be competent unless demonstrated otherwise. If you have
doubts about their competence, the question to ask is: “can this patient understand and
weigh up the information needed to make this decision? Unexpected decisions do not
prove the patient is incompetent, but may indicate a need for further information or
explanation.
3. Patients may be competent to make some health care decisions, even if they are not
competent to make others.
4. Giving and obtaining consent is usually a process, not a one-off event. Patients can
change their minds and withdraw consent at any time. If there is any doubt, you should
always check that the patient still consents to your caring for or treating them.
Can children give consent for themselves?
5. Before examining, treating or caring for a child, you must also seek consent. Young
people aged 16 and 17 are presumed to have the competence to give consent for
themselves. Younger children who understand fully what is involved in the proposed
procedure can also give consent (although their parents will ideally be involved). In other
cases, some one with parental responsibility must give consent on the child’s behalf,
unless they cannot be reached in an emergency. If a competent child consents to
treatment, a parent cannot over-ride that consent. Legally, a parent can consent if a
competent child refuses, but it is likely that taking such a serious step will be rare.
Who is the right person to seek consent?
6. It is always best for the person actually treating the patient to seek the patient’s consent.
However, you may seek consent on behalf of colleagues if you are capable of performing
the procedure in question, or if you have been specially trained to seek consent for that
procedure.
What information should be provided?
7. Patients need sufficient information before they can decide whether to give their consent,
e.g. information about the benefits and risks of the proposed treatment, and alternative
Page 22 of 64

8. Consent must be given voluntarily: not under any form of duress or undue influence from
health professionals, family or friends.
Does it matter how the patient gives consent?
9. No: consent can be written, verbal or non-verbal. A signature on a consent form does not
itself prove the consent is valid – the point of the form is to record the patient’s decision,
and also increasingly the discussions that have taken place. This information could also
be recorded electronically on the practice clinical system.
Refusal of treatment
10. Competent adult patients are entitled to refuse treatment, even when it would clearly
benefit their health. The only exception to this rule is where the treatment is for a mental
disorder and the patient is detained under the Mental Health Act 1983. A competent
pregnant woman may refuse any treatment, even if this would be detrimental to the fetus.
Adults who are not competent to give consent
11. No-one can give consent on behalf of an incompetent adult. However, you may still treat
such a patient if the treatment would be in their best interests. ‘Best interests’ go wider
than best medical interests, to include factors such as the wishes and beliefs of the
patient when competent, their current wishes, their general well being and their spiritual
and religious welfare. People close to the patient may be able to give you information on
some of these factors. Where the patient has never been competent, relatives, carers
and friends may be best placed to advise on the patient’s needs and preferences.
12. If an incompetent patient has clearly indicated in the past, while competent, that they
would refuse treatment in certain circumstances (an ‘advance refusal’), and those
circumstances arise, you must abide by that refusal.
This summary cannot cover all situations. For more detail, consult the Assistant Director
of Corporate Services on 01928 593726, or Operational Director of Nursing and Clinical
Governance 01744 457 221 or refer to Reference guide to consent for examination or
treatment, available from the NHS Response Line 08701 555 455 and at
www.doh.gov.uk/consent.
Page 23 of 64

APPENDIX 3
Click here to download and use the form and guidelines
Consent Form 1
Patient agreement to investigation
Or treatment
Patient details (or pre-printed label)
Patient’s surname/family name.………………………….
Patient’s first names.……………………………………….
Date of birth ………………………………………………….
Responsible health professional.……………………………
Job title ……………………………………………………….
NHS number (or other identifier)……………………………..
Male
Female
Special requirements ………………………………………
(E.g. other language/other communication method)
To be retained in patient’s notes
Page 24 of 64

Patient identifier/label
Name of proposed procedure or course of treatment (include brief explanation if medical
term not clear) ……………………………………………………………………………
………………………………………………………………………………………………………………
………………………
Statement of health professional (to be filled in by health professional with appropriate
knowledge of proposed procedure, as specified in consent policy)
I have explained the procedure to the patient. In particular, I have explained:
The intended benefits ……………………………………………………………..……….………
………………………………………………………………………………………
Serious or frequently occurring risks ……………………………………………...………………
...…………………………………………………………………………………..
Any extra procedures which may become necessary during the procedure
Blood transfusion…………………………………..…….……………………
Other procedure (please specify) ………………………………...……...……
…………………………………………………………………………...…………
I have also discussed what the procedure is likely to involve, the benefits and risks of any
available alternative treatments (including no treatment) and any particular concerns of this
patient.
The following leaflet/tape has been provided ……………….…………………………..…
This procedure will involve:
General and/or regional anaesthesia local anaesthesia sedation
Signed: ….……………………………………
Name (PRINT) ………………………. ………
Date ……………………….……….
Job title …….. …………
Contact details (if patient wishes to discuss options later) …..……………..
Page 25 of 64

Statement of interpreter (where appropriate)
I have interpreted the information above to the patient to the best of my ability and in a way in
which I believe s/he can understand.
Signed ………………………….……………………. Date ………………..…………….
Name (PRINT) …………………..………………………………………………………………
Top copy accepted by patient: yes/no (please ring)
Page 26 of 64

Statement of patient
Patient identifier/label
Please read this form carefully. If your treatment has been planned in advance, you should
already have your own copy of page 2 which describes the benefits and risks of the proposed
treatment. If not, you will be offered a copy now. If you have any further questions, do ask – we
are here to help you. You have the right to change your mind at any time, including after you
have signed this form.
I agree to the procedure or course of treatment described on this form.
I understand that you cannot give me a guarantee that a particular person will perform the
procedure. The person will, however, have appropriate experience.
I understand that I will have the opportunity to discuss the details of anaesthesia with an
anaesthetist before the procedure, unless the urgency of my situation prevents this. (This only
applies to patients having general or regional anaesthesia.)
I understand that any procedure in addition to those described on this form will only be carried
out if it is necessary to save my life or to prevent serious harm to my health.
I have been told about additional procedures which may become necessary during my
treatment. I have listed below any procedures which I do not wish to be carried out without
further discussion.
………………………………………………………………………………………………….……………
………………………………………………………………………………………………………………
………………………………………………………………………………
Patient’s signature …………………………………… Date………………………………
Name (PRINT) ………………………………………………………………………………
A witness should sign below if the patient is unable to sign but has indicated his or her consent.
Young people/children may also like a parent to sign here (see notes).
Signature ……………………………………… Date ……………………..….……………
Name (PRINT) ………………………………………………………………………………
Confirmation of consent (to be completed by a health professional when the patient is
admitted for the procedure, if the patient has signed the form in advance)
On behalf of the team treating the patient, I have confirmed with the patient that s/he has no
further questions and wishes the procedure to go ahead.
Page 27 of 64

Signed: …….……………………………………
Name (PRINT) ………………………. ………
Date... …………………….……….
Job title …….. ………………….…
Important notes: (tick if applicable)
See also advance directive/living will (e.g. Jehovah’s Witness form)
Patient has withdrawn consent (ask patient to sign /date here) ……………...……….
Page 28 of 64

Guidance to health professionals (to be read in conjunction with consent policy)
What a consent form is for
This form documents the patient’s agreement to go ahead with the investigation or treatment
you have proposed. It is not a legal waiver – if patients, for example, do not receive enough
information on which to base their decision, then the consent may not be valid, even though the
form has been signed. Patients are also entitled to change their mind after signing the form, if
they retain capacity to do so. The form should act as an aide-memoire to health professionals
and patients, by providing a check-list of the kind of information patients should be offered, and
by enabling the patient to have a written record of the main points discussed. In no way,
however, should the written information provided for the patient is regarded as a substitute for
face-to-face discussions with the patient.
The law on consent
See the Department of Health’s Reference guide to consent for examination or treatment for a
comprehensive summary of the law on consent (also available at www.doh.gov.uk/consent).
Who can give consent?
Everyone aged 16 or more is presumed to be competent to give consent for themselves, unless
the opposite is demonstrated. If a child under the age of 16 has “sufficient understanding and
intelligence to enable him or her to understand fully what is proposed”, then he or she will be
competent to give consent for him or herself. Young people aged 16 and 17, and legally
‘competent’ younger children, may therefore sign this form for themselves, but may like a parent
to countersign as well. If the child is not able to give consent for him or herself, some-one with
parental responsibility may do so on their behalf and a separate form is available for this
purpose. Even where a child is able to give consent for him or herself, you should always
involve those with parental responsibility in the child’s care, unless the child specifically asks
you not to do so. If a patient is mentally competent to give consent but is physically unable to
sign a form, you should complete this form as usual, and ask an independent witness to confirm
that the patient has given consent orally or non-verbally.
When NOT to use this form
If the patient is 18 or over and is not legally competent to give consent, you should use the proforma for
adults who are unable to consent to investigation or treatment) instead of this form. A patient will not be
legally competent to give consent if:
they are unable to comprehend and retain information material to the decision and/or
They are unable to weigh and use this information in coming to a decision.
You should always take all reasonable steps (for example involving more specialist colleagues) to
support a patient in making their own decision, before concluding that they are unable to do so.
Relatives cannot be asked to sign this form on behalf of an adult who is not legally competent to
consent for him or herself.
Page 29 of 64

Information
Information about what the treatment will involve, its benefits and risks (including side-effects
and complications) and the alternatives to the particular procedure proposed, is crucial for
patients when making up their minds. The courts have stated that patients should be told about
‘significant risks which would affect the judgement of a reasonable patient’. ‘Significant’ has not
been legally defined, but the GMC requires doctors to tell patients about ‘serious or frequently
occurring’ risks. In addition if patients make clear they have particular concerns about certain
kinds of risk, you should make sure they are informed about these risks, even if they are very
small or rare. You should always answer questions honestly. Sometimes, patients may make it
clear that they do not want to have any information about the options, but want you to decide on
their behalf. In such circumstances, you should do your best to ensure that the patient receives
at least very basic information about what is proposed. Where information is refused, you
should document this on page 2 of the form or in the patient’s notes.
Page 30 of 64

APPENDIX 4
Click here to download and use the form and guidelines
Consent Form 2
Parental agreement to investigation or
Treatment for a child or young person
Patient details (or pre-printed label)
Patient’s surname/family name.………………………….
Patient’s first names.……………………………………….
Date of birth ………………………………………………….
Age …………………………………………………………….
Responsible health professional.……………………………
Job title ……………………………………………………….
NHS number (or other identifier)……………………………..
Male
Female
Special requirements ………………………………………
(E.g. other language/other communication method)
To be retained in patient’s notes
Page 31 of 64

Patient identifier/label
Name of proposed procedure or course of treatment (include brief explanation if medical
term not clear) ……………………………………………
………………………………………………………………………………………………………………
………………………………………………
Statement of health professional (to be filled in by health professional with appropriate
knowledge of proposed procedure, as specified in consent policy)
I have explained the procedure to the child and his or her parent(s). In particular, I have
explained:
The intended benefits ……………………………………………………………..……….………
…………………………………………………………..…………………………..……………
Serious or frequently occurring risks ……………………………………………...………………
...………………………………………………………………………………………….………
………………………………….………………………………………………..………………
Any extra procedures which may become necessary during the procedure
Blood transfusion…………………………………..…….…………………………………
Other procedure (please specify) ………………………………...……...…………….…..
…………………………………………………………………………………………………..
I have also discussed what the procedure is likely to involve, the benefits and risks of any
available alternative treatments (including no treatment) and any particular concerns of this
patient and his or her parents.
The following leaflet/tape has been provided ……………….…………………………..
This procedure will involve:
General and/or regional anaesthesia local anaesthesia sedation
Signed: ….……………………………………
Name (PRINT) ………………………. ………
Date... …………………….……….
Job title …….. ………………….…
Contact details (if child/parent wish to discuss options later) ……………….……………
Page 32 of 64

Statement of interpreter (where appropriate)
I have interpreted the information above to the child and his or her parents to the best of my
ability and in a way in which I believe they can understand.
Signed ………………………….……………………. Date ………………..…………….
Name (PRINT) …………………..………………………………………………………………
Top copy accepted by patient: yes/no (please ring)
Page 33 of 64

Statement of parent
Patient identifier/label
Please read this form carefully. If the procedure has been planned in advance, you should
already have your own copy of page 2 which describes the benefits and risks of the proposed
treatment. If not, you will be offered a copy now. If you have any further questions, do ask – we
are here to help you and your child. You have the right to change your mind at any time,
including after you have signed this form.
I agree to the procedure or course of treatment described on this form and I confirm that I have
‘parental responsibility’ for this child.
I understand that you cannot give me a guarantee that a particular person will perform the
procedure. The person will, however, have appropriate experience.
I understand that my child and I will have the opportunity to discuss the details of anaesthesia
with an anaesthetist before the procedure, unless the urgency of the situation prevents this.
(This only applies to children having general or regional anaesthesia.)
I understand hat any procedure in addition to those described on this form will only be carried
out if it is necessary to save the life of my child or to prevent serious harm to his or her health.
I have been told about additional procedures which may become necessary during my child’s
treatment. I have listed below any procedures which I do not wish to be carried out without
further discussion. ……………………………………………………………………..
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………
Signature …………………………………………Date……………………………………….
Name (PRINT) …………………………………Relationship to child………………………
Child’s agreement to treatment (if child wishes to sign)
I agree to have the treatment I have been told about.
Name ……………………………………………Signature ……………………..….……
Date ………………………………………………………………………………….…….
Confirmation of consent (to be completed by a health professional when the child is admitted
for the procedure, if the parent/child has signed the form in advance)
Page 34 of 64

On behalf of the team treating the patient, I have confirmed with the child and his or her
parent(s) that they have no further questions and wish the procedure to go ahead.
Signed: …….……………………………………
Name (PRINT) ………………………. ………
Date…………………….……….
Job title …….. ………………….…
Important notes: (tick if applicable)
See also advance directive/living will (e.g. Jehovah’s Witness form)
Parent has withdrawn consent (ask parent to sign /date here) ……………...…
Page 35 of 64

Guidance to health professionals (to be read in conjunction with consent policy)
This form
This form should be used to document consent to a child’s treatment, where that consent is
being given by a person with parental responsibility for the child. The term ‘parent’ has been
used in this form as shorthand for ‘person with parental responsibility’. Where children are
legally competent to consent for themselves (see below), they may sign the standard ‘adult’
consent form (form 1). There is space on that form for a parent to countersign if a competent
child wishes them to do so.
Who can give consent?
Everyone aged 16 or more is presumed to be competent to give consent for themselves, unless
the opposite is demonstrated. The courts have stated that if a child under the age of 16 has
“sufficient understanding and intelligence to enable him or her to understand fully what is
proposed”, then he or she will be competent to give consent for him or herself. If children are
not able to give consent for themselves, some-one with parental responsibility may do so on
their behalf.
Although children acquire rights to give consent for themselves as they grow older, people with
‘parental responsibility’ for a child retain the right to give consent on the child’s behalf until the
child reaches the age of 18. Therefore, for a number of years, both the child and a person with
parental responsibility have the right to give consent to the child’s treatment. In law, health
professionals only need the consent of one appropriate person before providing treatment. This
means that in theory it is lawful to provide treatment to a child under 18 which a person with
parental responsibility has authorised, even if the child refuses. As a matter of good practice,
however, you should always seek a competent child’s consent before providing treatment
unless any delay involved in doing so would put the child’s life or health at risk. Younger
children should also be as involved as possible in decisions about their healthcare. Further
advice is given in the Department’s guidance seeking consent: working with children. Any
differences of opinion between the child and their parents, or between parents, should be
clearly documented in the patient’s notes.
Parental responsibility
The person(s) with parental responsibility will usually, but not invariably, be the child’s birth parents.
People with parental responsibility for a child include: the child’s mother; the child’s father if married to
the mother at the child’s conception, birth or later; a legally appointed guardian; the local authority if the
child is on a care order; or a person named in a residence order in respect of the child. Fathers who
have never been married to the child’s mother will only have parental responsibility if they have acquired
it through a court order or parental responsibility agreement (although this may change in the future).
Information
Information about what the treatment will involve, its benefits and risks (including side-effects and
complications) and the alternatives to the particular procedure proposed, is crucial for children and their
parents when making up their minds about treatment. The courts have stated that patients should be
told about ‘significant risks which would affect the judgement of a reasonable patient’. ‘Significant’ has
not been legally defined, but the GMC requires doctors to tell patients about ‘serious or frequently
Page 36 of 64

occurring’ risks. In addition if patients make clear they have particular concerns about certain kinds of
risk, you should make sure they are informed about these risks, even if they are very small or rare. You
should always answer questions honestly.
Guidance on the law on consent
See the Department of Health publications Reference guide to consent for examination or treatment and Seeking consent: working with children
for a comprehensive summary of the law on consent (also available at www.doh.gov.uk/consent).
Page 37 of 64

APPENDIX 5
Click here to download and use the form and guidelines
Consent Form 3
Patient agreement to Investigation or Treatment
Patient details (or pre-printed label)
Patient’s surname/family name………………………….
Patient’s first names……………………………………….
Date of birth ………………………………………………….
Age …………………………………………………………….
Responsible health professional.……………………………
Job title ……………………………………………………….
NHS number (or other identifier)……………………………..
Male
Female
Special requirements ………………………………………
(E.g. other language/other communication method)
To be retained in patient’s notes
Page 38 of 64

Patient/parental agreement to investigation or treatment
(Procedures where consciousness not impaired)
Name of procedure (include brief explanation if medical term not clear)
………………………………………………………………………………………………………………
…………………………………………………………………………………………
Statement of health professional (to be filled in by health professional with appropriate
knowledge of proposed procedure, as specified in consent policy)
I have explained the procedure to the patient/parent. In particular, I have explained:
The intended benefits …………………………………………………………………….…………
……………………………………………………………………………………………………
……………………………………………………………………………………………………
Serious or frequently occurring risks:
……………………………………………………….………………………………………
...……………………………………………………………………………………………
………………………………….…………………………………………………………………
I have also discussed what the procedure is likely to involve, the benefits and risks of any
available alternative treatments (including no treatment) and any particular concerns of those
involved.
The following leaflet/tape has been provided ……………………………………….……
Signed: Date ……... ………………………………
Name (PRINT) ………………………. ………. Job title ………………………………
Page 39 of 64

Statement of interpreter (where appropriate)
I have interpreted the information above to the patient/parent to the best of my ability and in a
way in which I believe s/he/they can understand.
Signed ……………….……….Date…….…………..Name (PRINT)…………….…………………..
Statement of patient/person with parental responsibility for patient
I agree to the procedure described above.
I understand that you cannot give me a guarantee that a particular person will perform the
procedure. The person will, however, have appropriate experience.
I understand that the procedure will/will not involve local anaesthesia.
Signature ……………………………………….
Name (PRINT) …………………………………
Date ……………………………..…
Relationship to patient ……………
Confirmation of consent (to be completed by a health professional when the patient is admitted for the
procedure, if the patient/parent has signed the form in advance)
I have confirmed that the patient/parent has no further questions and wishes the procedure to
go ahead.
Signed:
Date ……... ………………
Name (PRINT) ………………………..………..
Job title ……………………
Top copy accepted by patient: yes/no (please ring)
Page 40 of 64

Guidance to health professionals (to be read in conjunction with consent policy)
This form
This form documents the patient’s agreement (or that of a person with parental responsibility for
the patient) to go ahead with the investigation or treatment you have proposed. It is only
designed for procedures where the patient is expected to remain alert throughout and
where an anaesthetist is not involved in their care: for example for drug therapy where
written consent is deemed appropriate. In other circumstances you should use either form 1
(for adults/competent children) or form 2 (parental consent for children/young people) as
appropriate.
Consent forms are not legal waivers – if patients, for example, do not receive enough information on
which to base their decision, then the consent may not be valid, even though the form has been signed.
Patients also have every right to change their mind after signing the form.
Who can give consent?
Everyone aged 16 or more is presumed to be competent to give consent for themselves, unless
the opposite is demonstrated. If a child under the age of 16 has “sufficient understanding and
intelligence to enable him or her to understand fully what is proposed”, then he or she will be
competent to give consent for him or herself. Young people aged 16 and 17, and legally
‘competent’ younger children, may therefore sign this form for themselves, if they wish. If the
child is not able to give consent for him or herself, some-one with parental responsibility may do
so on their behalf. Even where a child is able to give consent for him or herself, you should
always involve those with parental responsibility in the child’s care, unless the child specifically
asks you not to do so. If a patient is mentally competent to give consent but is physically unable
to sign a form, you should complete this form as usual, and ask an independent witness to
confirm that the patient has given consent orally or non-verbally.
When NOT to use this form (see also ‘This form’ above)
If the patient is 18 or over and is not legally competent to give consent, you should use the clinical
proforma for adults who are unable to consent to investigation or treatment) instead of this form. A
patient will not be legally competent to give consent if:
they are unable to comprehend and retain information material to the decision and/or
They are unable to weigh and use this information in coming to a decision.
You should always take all reasonable steps (for example involving more specialist colleagues)
to support a patient in making their own decision, before concluding that they are unable to do
so. Relatives cannot be asked to sign this form on behalf of an adult who is not legally
competent to consent for him or herself.
Information
Information about what the treatment will involve, its benefits and risks (including side-effects
and complications) and the alternatives to the particular procedure proposed, is crucial for
patients when making up their minds about treatment. The courts have stated that patients
should be told about ‘significant risks which would affect the judgement of a reasonable patient’.
Page 41 of 64

‘Significant’ has not been legally defined, but the GMC requires doctors to tell patients about
‘serious or frequently occurring’ risks. In addition if patients make clear they have particular
concerns about certain kinds of risk, you should make sure they are informed about these risks,
even if they are very small or rare. You should always answer questions honestly. Sometimes,
patients may make it clear that they do not want to have any information about the options, but
want you to decide on their behalf. In such circumstances, you should do your best to ensure
that the patient receives at least very basic information about what is proposed. Where
information is refused, you should document this overleaf or in the patient’s notes.
The law on consent
See the Department of Health’s Reference guide to consent for examination or treatment for a
comprehensive summary of the law on consent (also available at www.doh.gov.uk/consent
Page 42 of 64

APPENDIX 6
Click here to download and use the form and guidelines
Consent Form 4
Form for Adults who are unable to consent
To investigation or treatment
Patient details (or pre-printed label)
Patient’s surname/family name.………………………….
Patient’s first names.……………………………………….
Date of birth ………………………………………………….
Age …………………………………………………………….
Responsible health professional.……………………………
Job title ……………………………………………………….
NHS number (or other identifier)……………………………..
Male
Female
Special requirements ………………………………………
(E.g. other language/other communication method)
To be retained in patient’s notes
Page 43 of 64

The Mental Capacity Act 2005 – Assessment and Documentation Guidelines
Context:
The Mental Capacity Act 2005 (the Act) provides the legal framework for acting and making
decisions on behalf of individuals who lack the mental capacity to make particular decisions
for them. Everyone working with and/or caring for an adult who may lack capacity to make
specific decisions must comply with this Act when making decisions or acting for that person,
when the person lacks the capacity to make a particular decision for themselves. The same
rules apply whether the decisions are life-changing events or everyday matters.
The whole Act is underpinned by a set of five key principles set out in Section 1 of the
Act:
1. A presumption of capacity – every adult has the right to make his or her own decisions
and must be assumed to have capacity to do so unless it is proved otherwise;
2. Individuals being supported to make their own decisions – a person must be given all
practicable help before anyone treats them as not being able to make their own
decisions;
3. Unwise decisions – just because an individual makes what might be seen as an unwise
decision, they should not be treated as lacking capacity to make that decision;
4. Best interests – an act done or decision made under the Act for or on behalf of a person
who lacks capacity must be done in their best interests; and
5. Least restrictive option – anything done for or on behalf of a person who lacks capacity
should be the least restrictive of their basic rights and freedoms.
Who can decide if someone lacks capacity to make a particular decision?
Since the legislation was passed on the 1 st October 2007, it is the responsibility of everyone
working with/ caring for adults who may lack capacity, to make sure that they have considered the
issues highlighted by the Act. This covers most of the staff who work for the PCT.
Anyone can complete an assessment to decide if a person has the capacity to make a particular
decision. It is perhaps easier, and wherever possible, should be considered best practice to complete
the process as part of a clearly documented multidisciplinary process, which gathers a wide range of
views and clinical opinions.
It is a statutory requirement for staff working within the framework of the Mental Capacity Act
2005 to have regard and make reference to the Mental Capacity Code of Practice. Those staff
involved in assessments should be conversant with the Code of Practice, especially Chapter 3.
Why do I need to fill out the form attached?
Page 44 of 64

The Halton and St. Helen’s PCT pro forma is designed to ensure that there is a consistent approach to
documenting assessments and best interest decision making processes, across Community Health
Services.
The pro forma also ensures that the correct process has been followed, and that this can be referred to
at a later date, if needed.
A form should be completed for each individual decision that the patient is required to make an informed
choice around. That is, just because a person lacks the capacity to decide about one thing, we cannot
assume that they lack the capacity to make all other decisions. Each decision must be treated as
individual, and an assessment carried out to establish the individual’s capacity to make that specific
decision.
It is also important to remember that capacity can fluctuate over time, (e.g.: dementia, psychosis etc.).
Things can get better as well as worse, so it is important to revisit capacity assessments, especially if
there have been any significant clinical changes.
All assessments, best interest meetings, meeting with family/ carers, discussions with other
professionals, and other contacts related to the Act within the patients’ care should be recorded within
the clinical notes, as per Trust Policy on Recordkeeping.
The pro forma should be completed in conjunction with the Guidance Notes and reference to the Trust’s
policy on Mental Capacity Act 2005, which is available on the intranet.
Sources of Information:
Information about the Mental Capacity Act 2005 can be found on the website below:
http://www.dca.gov.uk/menincap/legis.htm
The Code of Practice is available at the website below:
http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf
Contacts:
Debbie Fairclough (Assistant Chief Executive)
debbie.fairclough@hsthpct.nhs.uk
Dr. Swati Chapman (Clinical Lead Mental Capacity Act) swati.chapman@hsthpct.nhs.uk
Page 45 of 64

Mental Capacity Act 2005
Patient’s Name :
Pro-forma for the Two-Stage Test to Assess Capacity
DOB:
Address:
Contact Number:
GP(Name & Address) Gender: M F
NHS Number:
Ethnicity/ First Language:
Key Roles
Next of Kin
N/A
Lasting/
Enduring
Power of
Attorney (LPA
or EPA)
N/A
Independent
Mental Health
Advocate
(IMCA)
N/A
Court of
Protection
Deputy
(CPD)
N/A
Name
Role
Address
Tel
Details of the decision to be made:
Dated:
Key Roles
Person conducting
assessment
Supporting Clinician (if
applicable)
Manager/ supervisor
Other (please detail)
Name
Role
Address
Tel
Page 46 of 64

Assessment of Capacity
1. Does the patient have impairment or a disturbance in the functioning of the mind or brain?
Yes
No
(See guidance note 1)
Is the patient able to?
Understand the information relevant to the decision
Yes
No
Details
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………
(See guidance note 2a)
Retain that information
Yes
(See guidance note 2b)
No
Details
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………
Use that information as part of the decision making process, or understand the consequences
of not making a decision
Yes
No
Details
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………
Page 47 of 64

(See guidance note 2c)
And/ or:
Is the patient able to communicate their decision, whether by talking, using sign language or
any other means?
Yes
No
Details
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………
(See guidance note 2d)
Other:
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………
I consider that the patient does / does not* have capacity to make the decision detailed in this
document. (*Delete as appropriate).
Signed………………………….……
Print name.…………….…….…….
Position………………………………
Date………………………………….
If the individual is found to have capacity to make decision, no further action is required.
Where capacity is found to be lacking, complete the Best Interest Process overleaf before
deciding what is in their best interest.
Page 48 of 64

Mental Capacity Act 2005
Best Interest Checklist
Pro-forma for Best Interest Process
Yes no The patient has been encouraged and assisted to participate in the decision.
yes no All factors relevant to the decision have been considered
yes no Attempts have been made to find out the views of the patient including past and
present wishes and feelings.
yes no Decisions have not been based or influenced by the patient’s age, appearance,
diagnosis or behaviour.
yes no Consideration has been given to whether the patient may regain capacity, and if
so, if the decision can be delayed.
*For guidance on how to apply factors, see Guidance notes.
People who have
been contacted
before coming to a
decision
Name
Person 1 Person 2 Person 3 Person 4
Role/relationship to
patient
Address
Tel
People who were not being consulted and the reasons why:
………………………………………………………………………………………………………………………………………
…………………………………………………………………………………
Referral to IMCA required (NB: A referral is required by law if there are no family or friends who are able to act on
the patient’s behalf):
Yes No Referral date: ……………………………………………………………
Details of best interest decision made:
………………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………………
Signed………………………….……
Print name: …………….…….…….
Position………………………………
Date………………………………….
Page 49 of 64

Mental Capacity Act 2005- Clinical Guidance Notes;
To be used in conjunction with the Mental Capacity Act Proforma for Halton and St. Helen’s PCT
Community Health Services.
1. Examples of an impairment or disturbance in the functioning of the mind or brain
may include the following:
conditions associated with some forms of mental illness
dementia
significant learning disabilities
the long-term effects of brain damage
physical or medical conditions that cause confusion, drowsiness or loss of consciousness
delirium
concussion following a head injury, and
the symptoms of alcohol or drug use.
2. For a person to lack capacity to make a decision, the Act says their impairment or disturbance must affect
their ability to make the specific decision when they need to. But first people must be given all practical and
appropriate support to help them make the decision for themselves. Stage 2 can only apply if all practical
and appropriate support to help the person make the decision has failed. See Guidance Note 3 for
guidance on ways of helping people to make their own decisions.
2a. It is important not to assess a person’s understanding before they have been given relevant information
about a decision. Every effort must be made to provide information in a way that is most appropriate to
help the person to understand. Quick or inadequate explanations are not acceptable unless the situation is
urgent (see chapter 3 for some practical steps). Relevant information includes:
The nature of the decision
The reason why the decision is needed, and
The likely effects of deciding one way or another, or making no decision at all.
Take time to explain anything that might help the person make a decision. It is important that
they have access to all the information they need to make an informed decision.
Try not to give more detail than the person needs – this might confuse them. In some cases, a
simple, broad explanation will be enough. But it must not miss out important information.
What are the risks and benefits? Describe any foreseeable consequences of making the
decision, and of not making any decision at all.
Explain the effects the decision might have on the person and those close to them – including
the people involved in their care.
If they have a choice, give them the same information in a balanced way for all the options.
For some types of decisions, it may be important to give access to advice from elsewhere. This
may be independent or specialist advice (for example, from a medical practitioner or a financial
or legal adviser). But it might simply be advice from trusted friends or relatives.
2b. The person must be able to hold the information in their mind long enough to use it to make an effective
decision. But section 3(3) of the Code of Practice states that people who can only retain information for a
short while must not automatically be assumed to lack the capacity to decide – it depends on what is
necessary for the decision in question. Items such as notebooks, photographs, posters, videos and voice
recorders can help people record and retain information
Page 50 of 64

Suggested Assessment of Ability to Retain Information:
Present information and ask questions as above in 2a of the Guidance Notes
Ask same questions after 5 minutes; note responses for inconsistencies.
Facilitate memory with aids such as writing things down, pictures etc.
Ask same questions over three consecutive days to see if responses are cognisant and consistent.
2c. For someone to have capacity, they must have the ability to weigh up information and use it to arrive at a
decision. Sometimes people can understand information but an impairment or disturbance stops them
using it. In other cases, the impairment or disturbance leads to a person making a specific decision without
understanding or using the information they have been given.
Some Suggested Questions to Assess Level of Understanding:
Can you tell me about ……? (the decision).
What do you think is going to happen?
What do you think would happen if you did not do x or y/ move into a home/ tell someone something/
get the treatment etc.? (results of not deciding either way)
What are the benefits/ positive outcomes of doing this?
What negative consequences are there?
Are you okay with this happening?
What are your wishes?
2d. To help someone make a decision for themselves, all possible and appropriate means of communication
should be tried.
Ask people who know the person well about the best form of communication (try speaking to family
members, carers, day centre staff or support workers). They may also know somebody the person
can communicate with easily, or the time when it is best to communicate with them.
Use simple language.
Where appropriate, use pictures, objects or illustrations to demonstrate ideas.
Speak at the right volume and speed, with appropriate words and sentence structure. It may be
helpful to pause to check understanding or show that a choice is available.
Break down difficult information into smaller points that are easy to understand. Allow the person
time to consider and understand each point before continuing.
It may be necessary to repeat information or go back over a point several times.
Be aware of cultural, ethnic or religious factors that shape a person’s way of thinking, behaviour or
communication. For example, in some cultures it is important to involve the community in decisionmaking.
Some religious beliefs (for example, those of Jehovah’s Witnesses or Christian Scientists)
may influence the person’s approach to medical treatment and information about treatment
decisions.
Page 51 of 64

If necessary, consider using a professional language interpreter. Even if a person communicated in
English or Welsh in the past, they may have lost some verbal skills (for example, because of
dementia). They may now prefer to communicate in their first language. It is often more appropriate
to use a professional interpreter rather than to use family members.
Would an advocate (someone who can support and represent the person) improve communication in
the current situation? (See chapters 10 and 15 for more information about advocates.)
Suggested Communication Checklist:
In what way does the individual communicate?
In what way does s/he communicate an affirmative response?
In what way does s/he indicate a negative response?
In what way do they signal their preferences?
In what way can the information be presented to facilitate maximum comprehension?
3. One of the key principles of the Act is that any act done for, or any decision made on behalf of a person
who lacks capacity must be done, or made, in that person’s best interests. That is the same whether the person
making the decision or acting is a family carer, a paid care worker, an attorney, a court-appointed deputy, or a
healthcare professional, and whether the decision is a minor issue – like what to wear – or a major issue, like
whether to provide particular healthcare. As long as these acts or decisions are in the best interests of the person
who lacks capacity to make the decision for themselves or to consent to acts concerned with their care or
treatment, then the decision-maker or carer will be protected from liability.
3a. A person trying to work out the best interests of a person who lacks capacity to make a particular decision
(‘lacks capacity’) should:
a. Encourage participation
Do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in
making the decision.
b. Identify all relevant circumstances
Try to identify all the things that the person who lacks capacity would take
into account if they were making the decision or acting for themselves.
c. Find out the person’s views
Try to find out the views of the person, who lacks capacity, including:
i. The person’s past and present wishes and feelings – these may have been expressed
verbally, in writing or through behaviour or habits.
ii.
iii.
Any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to
influence the decision in question.
Any other factors the person themselves would be likely to consider if they were making the
decision or acting for themselves.
Page 52 of 64

d. Avoid discrimination
Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance,
condition or behaviour.
e. Assess whether the person might regain capacity
Consider whether the person is likely to regain capacity (e.g. after receiving medical treatment). If so, can the
decision wait until then?
f. If the decision concerns life-sustaining treatment
Not be motivated in any way by a desire to bring about the person’s death. They should not make assumptions
about the person’s quality of life.
g. Consult others
If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and
to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to
consult:
anyone previously named by the person as someone to be consulted on either the decision in
question or on similar issues
anyone engaged in caring for the person
close relatives, friends or others who take an interest in the person’s welfare
any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the
person
any deputy appointed by the Court of Protection to make decisions for the person.
For decisions about major medical treatment or where the person should live and where there is no-one who fits
into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted. When
consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a
right to keep their affairs private – so it would not be right to share every piece of information with everyone.
h. Avoid restricting the person’s rights
See if there are other options that may be less restrictive of the person’s rights.
Weigh up all of these factors in order to work out what is in the person’s best interests.
3b. To help someone make a decision for themselves, check the following points:
a. Providing relevant information
Does the person have all the relevant information they need to make a particular decision?
If they have a choice, have they been given information on all the alternatives?
Page 53 of 64

. Communicating in an appropriate way
Could information be explained or presented in a way that is easier for the person to understand (for
example, by using simple language or visual aids)?
Have different methods of communication been explored if required, including non-verbal communication?
Could anyone else help with communication (for example, a family member, support worker, interpreter,
speech and language therapist or advocate)?
c. Making the person feel at ease
Are there particular times of day when the person’s understanding is better?
Are there particular locations where they may feel more at ease?
Could the decision be put off to see whether the person can make the decision at a later time when
circumstances are right for them?
d. Supporting the person
Can anyone else help or support the person to make choices or express a view?
4. There are two circumstances when the best interest principle will not apply:
a. The first is where someone has previously made an advance decision to refuse medical treatment
while they had the capacity to do so. Their advance decision should be respected when they lack
capacity, even if others think that the decision to refuse treatment is not in their best interests.
b. The second concerns the involvement in research, in certain circumstances, of someone lacking
capacity to consent.
Page 54 of 64

APPENDIX 7
How to seek a court declaration
you are unable to gain consent
(A court order may be needed if the patient’s
ability to give consent is in doubt)
Ensure that all negotiations and discussions with
the patient have been documented and signed
preferably in the presence of a witness
Is the treatment needed immediately? If yes, is it
out of hours?
Yes
No
The on-call Manager
contact Director on Call
to ring Halton and St
Helens PCT legal
advisors for immediate
advice
Contact PCT Legal
Adviser. They will
gain access to legal
advice
Page 55 of 64

APPENDIX 8
Who has parental responsibility?
1. Mothers automatically have parental responsibility for their children. Fathers also have
parental responsibility:
if they were married to the mother when the child was conceived or born, or
if they married her later.
2. By law, unmarried fathers do not automatically have parental responsibility.
3. Prior to 1 December 2003, they could only obtain this by:
Parental Responsibility Order granted by the court.
Residence Order granted by the court.
More than one person can have parental responsibility if a Residence Order is
granted, e.g. to a stepfather or other family relative with a Residence Order.
Parental Responsibility Agreement.
This must be signed by both parents, their signatures witnessed by an Officer of the Court
or a Magistrate and the form sent to the Principal Registry of the High court for registration
after which it becomes effective.
4. Since 1 December 2003, an unmarried father who is the natural father of the child can
also acquire parental responsibility if he is named as the father on the child’s birth
certificate.
5. Although the consent of one person with parental responsibility for a child is usually
sufficient for immunisation purposes (see section 2(7) Children Act 1989), if it appears that
one parent agrees to immunisation but the other disagrees, further discussions with both
parents are advised before proceeding.
6. The person with parental responsibility does not necessarily need to be present at the
time an immunisation is given. Although a person may not abdicate or transfer parental
responsibility, they may arrange for some or all of it to be met by one or more persons
acting on their behalf (section 2(9) Children Act 1989). There is no requirement for such
arrangements to be made in writing.
7. Children may be brought for immunisation by a person without parental responsibility, e.g.
a grandparent or child-minder. In this situation, the health professional would need to be
satisfied that the circumstances indicate that that person has the necessary authority, for
example:
Page 56 of 64

the person with parental responsibility has consented in advance to the immunisation
(i.e. they received all the relevant information in advance and arranged for the other
person to bring the child to the appointment)
the person with parental responsibility has arranged for this other person to provide
the necessary consent (i.e. they asked the other person to take the child to the
appointment, to consider any further information given by the health professional, and
then to agree to immunisation if appropriate)
If the child attends with an adult without parental responsibility for the first scheduled
immunisation appointment or unscheduled further appointments, it is important for the
immuniser to check that the parent or person with parental responsibility has given
their consent. This can be either in writing or by a telephone call to the parent to
confirm the position. It should then be documented in the record.
Alternatively, there may be evidence that the person with parental responsibility:
did not agree to the immunisation (e.g. the notes indicate that the parent(s) may have
negative views on immunisation) or
did not agree that the person bringing the child could give the necessary consent
(e.g. suggestion of disagreements between the parents on medical matters)
In these exceptional circumstances, it may be necessary to contact the person with
parental responsibility before proceeding.
8. A person giving consent on behalf of a child may change his or her mind and withdraw
consent at any time. Where consent is either refused or withdrawn, this decision must be
documented.
9. It is the duty of each healthcare professional to communicate effectively and share such
knowledge and information with other members of the primary health care team.
Page 57 of 64

APPENDIX 9
Advance refusals of treatment
Patients may have a “living will” or “advance directive” specifying how they would like to be
treated in the case of future incapacity. While professionals cannot be required by such
directives to provide particular treatments (which might be appropriate), case law is now clear
that an advance refusal of treatment which is valid and applicable to subsequent circumstances
in which they patient lacks capacity is legally binding. An advance refusal is valid if made
voluntarily by an appropriately informed person with capacity. Failure to respect such an
advance refusal can result in legal action against the practitioner.
If there is doubt about the validity of an advance refusal a rule should be sought from the court.
It is not legally necessary for the refusal to be made in writing or formally witnessed, although
such measures add evidentiary weight to the validity of the refusal. A health professional may
not over-ride a valid and applicable advance refusal of the on the grounds of the professional’s
personal conscientious objection to such a refusal.
Although the issue has not yet come before a court, it has been suggested that as a matter of
public policy individuals should not be able to refuse in advance, measures which are essential
to keep a patient comfortable. 12 This is sometimes referred to as “basic” or “essential care, and
includes keeping the patient warm and clean and free from distressing symptoms such as
breathlessness, vomiting, and severe pain. However, some patients may prefer to tolerate
some discomfort if this means they remain more alert and able to respond to family and friends.
However, although basic/essential care would include the offer of oral nutrition and hydration, it
would not cover force feeding an individual or the use of artificial nutrition and hydration. The
courts have recognised that a competent individual has the right to choose to go on a “hunger
strike”, although this may be qualified if the person has a mental disorder. Towards the end of
such a period an individual is likely to lose capacity (become incompetent) and the courts have
stated that if the individual has, whilst competent, expressed the desire to refuse until death
supervenes, the person cannot be force fed or fed artificially when incompetent. If the patient is
refusing food as a result of mental disorder and is detained under the Mental Health Act 1983,
different considerations may apply and more specialist guidance should be consulted.
Reference:
12 British Medical Association, Advance statements about medical treatment (1995) BMA
Publishing Group: London
Page 58 of 64

APPENDIX 10
Useful Contact Details
Debbie Fairclough Assistant Director Corporate Services 01928 593726
Legal Advisor
Margaret Evans Caldicott Guardian 01744 457 221
Swati Chapman Mental Capacity Act Lead 01928 582955
Helen Smith Head Safeguarding Adults 01744 621821
Charlie Whelan Designated Nurse Child Protection (H) 0151 495 5017
Ann Dunne Designated Nurse Child Protection (StH) 01744 627576
Linda Spooner Professional Development Mgr 01928 593640
Dot Keates Head Clinical Governance 01744 621822
Page 59 of 64

APPENDIX 11
Mental Capacity Act
There are 10 guiding principles set out in the Act that must be followed when a member of the
PCT is assessing the capacity of an individual to provide valid consent to treatment or refusal of
treatment.
Principle 1: “A person must be assumed to have capacity unless it is established that he
lacks capacity” (Mental Capacity Act, Section 1 (2). there must be clear proof that a person
lacks capacity about the particular decision they are being required to make. People may need
help to make the decision or to communicate it – but this does not mean that they lack the
capacity to make the decision.
Principle 2: “A person is not to be treated as unable to make a decision unless all
practicable steps to help him to do so have been taken without success” (Mental
Capacity Act, Section 1 (3)). This is a proactive duty on those who work with a person who
may be thought to lack capacity to make a particular decision - they must ensure that all
possible steps must be taken to assist the person to make the decision. Where complex
decisions are being taken, relating to a person’s accommodation or treatment (including the
giving of medication), these steps should be clearly described in the person’s case notes, with a
record of their success or failure and the reasons for this. These records should be signed and
dated by the staff member concerned and should be specifically countersigned by the manager
of the team/service.
The kind of support a person needs will depend on their circumstances. It may include:
using a different form of communication (such as non-verbal communication)
providing information in a more accessible form (such as photographs, drawing or tapes)
treating a medical condition which may affect a person’s capacity
having a structured programme to improve a person’s capacity to make particular
decisions.
This principle aims to stop people being automatically considered as lacking capacity to make
particular decisions. If they play as big a role as possible in decision-making, this will help
prevent unnecessary interventions in their lives.
Principle 3: “A person is not to be treated as unable to make a decision merely because
he makes an unwise decision” (Mental Capacity Act, Section 1 (4). This can be one of the
most difficult areas for families, carers and professionals alike. The Mental Capacity Act Code of
Practice (page 24) is clear, however:
Page 60 of 64

“Everybody has their own values, beliefs, preferences and attitudes. A person should not be
assumed to lack the capacity to make a decision just because other people think their decision
is unwise. This applies even if family members, friends or healthcare or social care staff are
unhappy with a decision”.
However, as with other aspects of the Act, the key issue is the context of the decision-making.
An unwise decision in itself may not indicate a lack of capacity, but it may be a trigger a fuller
examination of the person’s capacity to make a specific decision, or indeed of the information
that person may need in order to come to a fully informed decision for themselves.
Principle 4: “An act done, or decision made, under the Mental Capacity Act for or on
behalf of a person who lacks capacity must be done, or made, in his best interests”
(Mental Capacity Act, Section 1 (5)). This applies whoever is making the decision, and
whether the decision is a minor or a major one. It covers all aspects of financial, personal
welfare and healthcare decision making and actions.
To ensure best interests are addressed throughout, the Code of Practice (pages 65-66)
identifies a series of steps that should be taken by someone who is making a decision or taking
an action:
encourage the person to take part in – or improve their ability to take part in – making the
decision
find out the person’s views – including past and present wishes and feelings, and taking into
account any of the person’s beliefs or values, or any other factors the person themselves
would take into account, when making the decision
avoid discrimination – do not make assumptions about a person’s best interests simply on
the basis of their age, appearance, condition or behaviour
assess whether the person might regain capacity – and if so, consider whether the decision
can be delayed
consult others, where practical and appropriate – particularly someone previously named by
the person as someone to be consulted, anyone providing care for the person, close
relatives and others who take a close interest in the person’s welfare, a person with Lasting
or Enduring power of Attorney, and any deputy appointed by the Court of Protection
avoid restricting the person’s rights
where the decision concerns life-sustaining treatment, do not be motivated in any way by a
desire to bring about the person’s death, through assumptions about their quality of life.
Principle 5: “Before the act is done, or the decision is made, regard must be had to
whether the purpose for which it is needed can be effectively achieved in a way that is
less restrictive of the person’s rights and freedom of action” (Mental Capacity Act,
Section 1 (6)). This consideration – finding the least restrictive alternative, whilst continuing to
consider the person’s best interests – includes considering whether there is a need to act or
make a decision at all.
Page 61 of 64

ASSESSING CAPACITY
General issues: Mental capacity is the ability to make a decision, ranging from a minor
decision that affects daily life only, to a more significant decision with much wider implications,
including a decision that may have legal consequences for themselves or others. The starting
point is always to assume that a person has capacity to make a specific decision, although
possibly with health or support.
For the purposes of the Act, a person lacks capacity if at the time of the decision to be made:
they have an impairment or disturbance that affects the way their brain or mind works and
this impairment or disturbance means that they cannot make a specific decision
Hence the decision about a person’s capacity is 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.
Who should conduct assessments of capacity? Under the Mental Capacity Act, a decision
about one person’s capacity can be made by anyone who follows the criteria for assessing this
– it is no longer the specific responsibility of a psychiatrist or other doctor. This will usually be
the person most directly connected with the individual at the time the decision has to be made.
This will particularly be the case for day to day decisions.
Page 62 of 64

APPENDIX 12
EQUALITY IMPACT ASSESSMENT TOOL
To be completed and attached to any corporate document when submitted to the appropriate
committee for consideration and approval.
1. Does the policy/guidance affect one group less or
more favourably than another on the basis of:
Yes/No
Race No
Ethnic origins (including gypsies and travellers) No
Nationality No
Gender No
Culture No
Religion or belief No
Sexual orientation including lesbian, gay and
bisexual people
Age No
Disability - learning disabilities, physical disability,
sensory impairment and mental health problems
2. Is there any evidence that some groups are
affected differently?
3. If you have identified potential discrimination, are
there any exceptions valid, legal and/or
justifiable?
4. Is the impact of the policy/guidance likely to be
negative?
5. If so can the impact be avoided? N/A
6. What alternative are there to achieving the
policy/guidance without the impact?
7. Can we reduce the impact by taking different
action?
No
No
No
No
No
N/A
N/A
Comments
If you have identified a potential discriminatory impact of this corporate document, please refer it
to [insert name of appropriate person], together with any suggestions as to the action required
to avoid/reduce this impact. For advice in respect of answering the above questions, please
contact [insert name of appropriate person and contact details].
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APPENDIX 13
DISSEMINATION PLAN
Title of document:
Consent Policy
Dissemination Lead: (Print name and
contact details)
Date finalised: March 2009
Previous document already being used?
delete as appropriate)
Yes/No (Please
Linda Spooner
If yes, in what format and where?
On intranet and paper copies
Proposed action to retrieve out-of-date
copies of the document:
To inform all services updated document and to put new
document on Document Portal
To be disseminated to:
Who will
disseminate
it
Timescale
(Date)
Status
Paper
or
Electronic
Heads of Service L Spooner April 2009 Electronic
Comments
TRAINING PLAN
Event (Please provide details of where and training dates available to
educate staff about this policy)
Timescale Owner Status
Consent Training
2 April
8 July
8 October
Training Plan Lead (Please provide details of staff who will be responsible
for overseeing this training)
Linda Spooner
Additional information (Please provide details of any processes in place
to support implementation)
Denotes: Action not yet taken or deadline for action not met. Action plan to address this must be provided.
Denotes: Action partially implemented.
Denotes: Action complete.
Page 64 of 64