The following information is intended as general guidance only and must not be regarded as a substitute for the code of practice under the Mental Capacity Act 2005 that providers must adhere to, nor is it a complete or authoritative statement of the law.
It has been put together to help providers understand what actions they may need to carry out and the evidence a Contract Officer will look for when they carry out contract monitoring in relation to consent.
Why consent is required
Consent is required by law under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and Mental Capacity Act 2005.
The provider must ensure a service user has given consent before any care or treatment, including when support with medication is provided and must make sure that they obtain consent lawfully.
It is also necessary to seek a service users consent to share information relating to their care and treatment on a need-to-know basis as required with other professionals involved.
If a service user does not have capacity to sign to give consent
If a service user has been assessed as lacking the mental capacity to make decisions around their care and support needs, decisions need to be made in the persons best interests. If the person does not have a legal representative, for example, Lasting Power of Attorney, Health and Welfare Deputy, who is able to make health and welfare decisions on their behalf, a best interest decision around taking/administering medication will need to be made in consultation with a health care professional, for example, a GP and recorded. Providers must ensure they read, understand and follow the statutory principles in the Mental Capacity Act (2005) Code of Practice.
If there is no one able to legally sign on behalf of a service user
It should always be assumed that a service user has the capacity to make a decision about their care and support. If a service user makes a decision which may be considered unwise, this does not necessarily mean the service user lacks capacity to make the decision.
If the service user appears unable to make a decision for any part of their care and support the provider will need to carry out their own best interest assessment, if one has not already been completed, and decisions agreed.
If a service user has capacity but is physically unable to sign
It may be that a service user has capacity to make a decision but is unable to sign consent due to a physical illness or disability affecting their ability to write or hold a pen. In such circumstances the provider will need to record that the service user is unable to write or hold a pen and the reason why and record and evidence consent has been sought/given verbally or non-verbally.
Staff gaining consent before supporting a service user
Staff need to ensure that the service user agrees to accept support at the time it is offered through verbal agreement or implied positive body language and cooperative behaviour.
If the service user refuses support with their medication after written consent has been given
Further guidance, advice and support can be found in the Refusal to take medication guidance.