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As set out in our page on Information Sharing, we are required to obtain informed consent to share information about a person with other professionals. There may also be other occasions where there is a need for a parent or child (subject to age and understanding as set out below) to give their consent, for example for trips off the school site, medication being given in school, etc. and these will all require informed consent.
Informed consent is also a key issue when considering exploitation, for example peer on peer abuse, when looking at sexual harassment and violence, county lines, etc.
What is meant by informed consent, and how does this link with competence and capacity?
Informed consent
Article 4(11) of the General Data Protection Regulation defines consent:
any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.
A version of this definition is also present in the Sexual Offences Act 2003 (section 74):
a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
The definition in the Sexual Offences Act 2003 refers specifically to a person having capacity, whilst the GDPR definition refers to a person being informed, with the Information Commissioners Office suggesting that issues of capacity are “bound up in the concept of ‘informed’ consent”.
Capacity and competence
Capacity and competence refer to the same thing, a person’s ability to understand and use information to make a decision, however the term capacity is used for people aged 16 and over, whilst competence refers to children and young people under 16.
Amongst other principles, the Mental Capacity Act 2005 sets out that we should consider everyone to have capacity unless established otherwise, and that we should take all practicable steps to support people to make a decision (e.g. providing the information in a different format, thinking about the timing, about whether the person needs an advocate, etc.). This is no different to the requirements set out in the Public Sector Equity Duty, established by the Equality Act 2010 – the Duty applying to all schools whether maintained or an academy.
It is also important that we do not make assumptions about a person’s capacity, with s.2(3) of the Mental Capacity Act 2005 stating:
A lack of capacity cannot be established merely by reference to—
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
But how can we check that someone does have capacity? Section3 of the same Act sets out that to demonstrate capacity a person needs to be able to:
- understand the information that is relevant to the decision that they are being asked to make, and
- retain that information, and
- use or weigh up that information as part of the decision-making process, and
- communicate their decision.
Case law (i.e. where legal precedents have been set or the law has been reviewed by the highest courts in the land when hearing cases before them) sets out that this is the same test for a child or young person to demonstrate competence to make a decision. However, with children and young people under the age of 16 we must not assume that they have competence to make a decision, the onus is on professionals to prove that they are competent to make a decision.
Understand the information
As we saw above, there is a requirement that professionals do everything possible to make sure that the person being asked to make a decision has enough information to allow them to make the decision. The amount of information required is dictated by the severity of the decision that they are being asked to make.
For example, if you were thinking about whether to move home or change jobs you would gather a lot more information than if you were deciding where to eat out one night. This is because moving home or changing jobs has the potential to have an impact not only now but for years to come, whilst deciding where to eat out is something that can be changed very quickly with the only real impact being an immediate one.
So, when thinking about what information a person might need in order to decide whether to consent to a referral being made, this may include:
- What the reason for the referral is.
- Why you are wanting to refer now.
- What might happen as a result of the referral (i.e. what are the consequences of me saying yes).
- What might happen if they don’t consent (i.e. what are the consequences of me saying no).
You also need to make sure that you do everything that you can to assist them to understand (i.e. take all practicable steps). Therefore, you may need to communicate in ways other than talking, consider the context (e.g. part of a meeting or 1:1), consider whether the information needs to be provided several times, or look at whether the person needs an interpreter or an advocate.
In order to check understanding you can ask the person to tell you in their own words what it all means, check that they can tell you the consequences of agreeing and not agreeing / not making the decision.
Retain the information
This does not require the person making the decision to be able to hold it in their mind forever. If you think about the number of decisions that you make on a daily basis, you may revisit some of these and wonder why you made the decision you did. What is important is that the person is able to retain the information long enough to be able to use it to make their decision. The length of time is then dependent on the decision in question – in terms of making a decision about whether to consent to a referral being made, arguably the length of time a person is required to retain the information for is relatively short. When thinking about moving a child’s school however it is likely that the information may need to be retained for longer.
It is also important to acknowledge that retaining information does not necessarily mean keeping it all in your head and recalling it. Information can be retained in other ways, for example written records, photographs, videos, voice recorders, etc.
Using or weighing up the information
“I am making this decision because …” is a phrase that we hear a lot, particularly from senior managers and leaders when they are deciding to make changes. This however demonstrates that they have weighed up competing information and used that to inform their final decision, and this is what is required by the capacity test.
Sometimes a person can understand the information that they are being given, however for whatever reason they are not able to process it and will remain unable to reach an informed decision, instead continuing to make rash decisions. We therefore need to be sure that they are making the decision based on all the information. Equally however, just because the decision that they make is not necessarily the one we want them to make does not mean that we can say that they did not weigh up all the information presented to them. All of us can make unwise decisions from time to time, but this does not mean that we lacked capacity to make the decision.
Communicating the decision
We must remember that not all communication is verbal, and for some people communication may be through simple muscle movements. It is therefore important that when a person is asked to make a decision, they are able to communicate it in a way that is accessible to them.
If a person has difficulties with any of these stages
If you are concerned at any point that the person who you are asking to make the decision is not able to successfully complete any of these stages, then you must stop and seek advice from your DSL / Senior Leadership Team as to how best to proceed. There may be a need to get an advocate involved or for other processes to be followed in order to support the person. If you were to have concerns and not do anything about it then it can be argued that informed consent has not been given.
Gillick competence
As noted above, competence is where a child or young person under the age of 16 has the “understanding and intelligence to understand fully what is proposed”. This is at times called Gillick competence as this relates to the legal case where the principles were established.
There has been confusion about Gillick competence and Fraser guidelines. Gillick competence relates to when young people are able to make decisions. You should consider their ability and the complexity of the decision. Fraser guidelines relate specifically to a young person’s ability to understand and consent to contraceptive advice and treatment.
