Consent

Under law you must seek the consent or permission of your service user before you carry out any assessment and/or intervention

The nature of the consent, whether verbal, non-verbal or written (signed), will vary according to the seriousness of the proposed intervention or the possible risks involved. However consent is given, it is vital that it is genuine and valid. This means that the service user must be capable of giving consent; that enough information is given in a way that the service user fully understands what he or she is giving consent to; and that consent is given freely and not under the influence of another person. Gaining consent is not a one-off event, but an ongoing process. Your service user should know that they can withdraw consent at any time.
 
Consent is also necessary before you share personal details or information related to your service users with those who are not part of the direct care team. This is covered in section 6 Record Keeping.
 

Mental capacity

You should never assume mental incapacity based on a service user’s diagnosis, wellbeing or age. The law assumes that an individual over the age of 16 years has the capacity to make his or her own decisions, unless it is proved otherwise.  In some circumstances a younger child can also be deemed competent to consent to intervention (Gillick competence).
 
If assessment or evidence shows that a service user does not have capacity to give valid consent, then any decisions made or action taken must be done in their best interest.
 
More information is available from:
COT/BAOT Briefings 60: Mental Capacity Act 2005 (COT 2007a)
COT/BAOT Briefings 68: Adults with Incapacity (Scotland) Act 2000 (COT 2006b)
COT/BAOT Briefings 96: Gillick Competence: the young person’s consent to treatment (COT 2007b)
COT/BAOT Briefings 121: Mental health legislation & policy - England (COT 2010b)
COT/BAOT Briefings 122: Mental health legislation & policy – Wales (COT 2010c)
COT/BAOT Briefings 123: Mental health legislation & policy – Northern Ireland (COT 2010d)
COT/BAOT Briefings 124: Mental health legislation & policy – Scotland (COT 2010e)
 

Your responsibilities

The Code of ethics and professional conduct (COT 2010a) sets out general responsibilities in relation to consent and mental capacity. You should work according to local policy, but be aware of your personal responsibilities under the law and guidance on consent and mental capacity that is relevant to your location and your area and level of work.
 

Recording consent

You should record when consent is sought and the outcome. However, a ‘tick in the box’ does not show that you have met the criteria for making that consent valid. You should document that you have fully informed the service user of any options and risks; any advice you have given; and any difficulties in obtaining consent that have arisen as a result of communication or capacity factors. Where your proposed intervention or activity poses significant risk to the service user, you are advised to obtain signed consent.
 

3. Consent - standards

Please note, it is recognised that it is not always possible to ascertain or accommodate your service users’ wishes for mental capacity or legal reasons. In such circumstances you must always act in your service users’ best interests and abide by legal and local requirements.
 

3.1  Your service users (or people acting on their behalf) are provided with sufficient information, in an appropriate manner, to understand the nature and purpose of the proposed intervention(s), including any possible risks involved

Criteria
3.1.1 You record any advice or information provided to your service users and/or their carers
3.1.2 You record the manner of the information given, i.e. verbal, printed
3.1.3 You provide information in languages and formats that are appropriate to your service users
3.1.4 You inform your service users of the benefits and possible risks of the proposed intervention
3.1.5 You record when a translator or advocate is involved
3.1.6 Every effort is made to enable those with reduced mental capacity to understand the nature and purpose of any proposed intervention
3.1.7 You record when your service users do not have the capacity to understand the information you could provide. Local policy or protocol is followed
 

3.2 Consent to occupational therapy must be obtained from your service users (or people acting on their behalf) in accordance with legislation and guidance. The gaining of consent, whether verbal or written (signed), should be recorded

Criteria
3.2.1 You participate in training or self-directed learning on legislation and your legal responsibilities in relation to mental capacity and gaining consent from your service users
3.2.2 You abide by the Code of ethics and professional conduct (COT 2010a) in relation to gaining consent from your service users
3.2.3 You abide by any local requirements and/or procedures in terms of gaining consent from service users
3.2.4 You obtain voluntary consent, without coercion or undue pressure, before occupational therapy is provided
3.2.5 You obtain written consent prior to any intervention when substantial risk is identified
3.2.6 You obtain consent before a student, trainee or volunteer observes or provides intervention
3.2.7 You obtain signed consent before any visual or sound recording is made of a service user
3.2.8 Any signed consent forms are kept securely in accordance with local policy
3.2.9 If your service users refuse consent, this is documented and the reasons given
3.2.10 If your service users refuse consent, you inform them of any possible ensuing risk to their safety or wellbeing
 

3.3  Where your service users’ capacity to give informed consent is restricted or absent, you must seek to act in their best interests. All decisions and actions taken must be documented

Criteria
3.3.1 You record when mental incapacity prevents gaining consent. Local policy or protocol is followed
3.3.2 You seek to ascertain and respect your service users’ preferences and wishes, and/or advanced decisions
3.3.3 You record if the service users’ preferences and wishes have not been met and why
3.3.4 You consult with those who have authority to make decisions about the intervention provided to your service users (second opinion appointed doctors/those with lasting power of attorney)
3.3.5 Your records show that any actions taken, or decisions made, in relation to occupational therapy are in your service users’ best interest
 
Right click and save Professional Standards Audit Tool - Consent
 
Right click and save Professional Standards Audit Tool - Progress Log
 
These standards link with:
Code of ethics and professional conduct, section(s) 2.2.4; 2.3 (COT 2010a)
Common core principles to support self care, principle(s) 1 (Skills for Care, Skills for Health 2008)
Doing well, doing better: Standards for health services in Wales, standard(s) 9 (Welsh Assembly Government 2010)
Guidance about compliance: essential standards of quality and safety, outcome(s) 1; 2 (CQC 2010)
National care standards – principles, principle(s) 3 (SCRC 2002)
Quality standards for health and social care, section(s) 6.3.2 (DHSSPS 2006a)
Standards of conduct, performance and ethics, standard(s) 9 (HPC 2008)
Standards of proficiency: occupational therapists, section(s) 1a.4 (HPC 2007)