Policy on Gaining Consent

Policy on Gaining Consent Authors: Roberta Wilson, Governance Lead, Medical Directorate Fiona Wright, Assistant Director Nursing Governance Mary McIntosh, Assistant Director Social Work and Social Care Governance Directorate responsible: Medical Directorate Date of version: November 2009 Date of review: November 2011

Policy Checklist Name of Policy: Purpose of Policy: Directorate responsible for Policy Name & Title of Author: Does this meet criteria of a Policy? Staff side consultation? Equality Screened by: Policy on Gaining Consent To ensure that health and social care staff are clear as to their responsibilities in gaining consent prior to examination, treatment or care, to ensure that staff understand the principles of consent and have read the DHSSPS associated consent guidance. Medical Directorate Roberta Wilson, Governance Lead, Medical Directorate Fiona Wright, Assistant Director Nursing Governance Mary McIntosh, Assistant Director Social Work and Social Care Governance Yes Yes Fiona Wright, Assistant Director Nursing Governance Date Policy submitted to November 2009 RM&PC: Members of RM&PC in Attendance: Policy Approved/Rejected/ Amended Communication Plan required? Training Plan required? Implementation Plan required? Any other comments: Approved No No training to be provided by Directorates Yes/no/not applicable Date presented to SMT November 2009 Policy on Gaining Consent Page 2 of 14

Director Responsible SMT Approved/Rejected/ Amended SMT Comments Dr Paddy Loughran, Medical Director Approved Date returned to Directorate Lead for implementation (Board Secretary) Date received by Board Secretary (HQ) for database/intranet/ Internet Date for further review November 2011 Policy on Gaining Consent Page 3 of 14

POLICY DOCUMENT VERSION CONTROL SHEET Title Supersedes Title: Policy on Gaining Consent Version: 1_0 Reference number/document name: Supersedes: Description of Amendments(s)/Previous Policy or Version: Previous legacy Trust Consent Policies Originator Roberta Wilson, Governance Lead, Medical Directorate Fiona Wright, Assistant Director Nursing Governance Mary McIntosh, Assistant Director Social Work and Social Care Governance RM/Policy Committee SMT approval Circulation & Circulation List: Referred for approval by: Date of Referral: RM/Policy Committee Approval (Date): November 2009 SMT approval (Date) November 2009 Issue Date: Circulated By: Issued To: As per circulation List (details below) Review Review Date: November 2011 Responsibility of (Name): Dr Loughran Title: Medical Director Author Roberta Wilson, Governance Lead, Medical Directorate Fiona Wright, Assistant Director Nursing Governance Mary McIntosh, Assistant Director Social Work and Social Care Governance Directorate Responsible for this Medical Directorate Document Policy Number 049-09 Date of Implementation Date of Review November 2011 Screened by Screening Document Reference Number Approved by (Signature) Policy on Gaining Consent Page 4 of 14

CONTENTS Introduction 6 Purpose and Aims 6 Policy Statement 7 Scope of the Policy 7 Principles of Valid Consent 7 Responsibilities 11 Relevant Policies & Procedures 12 Equality and Human Rights Considerations 13 Sources of Advice and Further Information 13 Appendices Policy on Gaining Consent Page 5 of 14

1 INTRODUCTION It is a general legal and ethical principle that valid consent must be obtained before commencing an examination, starting treatment or physical investigation, providing personal care or social care activities. Consent may also be required for sharing confidential information, participation in certain health and well being promotion activities. This principle reflects the right of individuals to determine what happens to their own bodies and any personal information held by the Trust and is a fundamental part of good practice. A health or social care professional who does not respect this principle may be liable to legal action by the person and action by his/her regulatory body. The employing organisation may also be liable for the actions of its staff. This is a policy for Southern Trust staff who are involved in health or social care activity for which consent is required. The policy is based upon the regional guidance Reference Guide to Consent for Examination, Treatment and Care, Department of Health, Social Services and Public Safety (March 2003) and the DHSSPSNI letter Consent in Social Care July 2004. The good practice guides published by the Department of Health, Social Services and Public Safety which accompany the regional guidance should be read in conjunction with this policy and can be accessed via: www.dhsspsni.gov.uk/public_health_consent This document has been developed in accordance with the Trust s key principles for policy development and developed in consultation with internal stakeholders. 2 PURPOSE AND AIMS Obtaining valid consent is a process rather than an isolated activity. This policy on Gaining Consent aims to support and direct staff who may be involved in health or social care activities for which consent may be required. The aim of this policy is to ensure that health and social care staff: - Are clear as to their legal and professional responsibilities in gaining consent prior to examination, treatment, care, information sharing or the promotion of health and well being; Understand the principles of gaining consent; Are aware of when it is appropriate to intervene without consent when this is required to meet the Trust s statutory duty to protect children or others from harm; Are aware of their responsibility to comply with the DHSSPS NI guidance documents which set out the principles and requirements for good practice, and Are supported in adherence to the policy. Policy on Gaining Consent Page 6 of 14

3 POLICY STATEMENT The Southern Trust recognises the right of every individual receiving Trust services to be given appropriate information to help them make informed choices about their care and treatment. All staff involved in health or social care activity for which consent is required, must adhere to the principles of consent, ensure that DHSSPSNI guidance is implicit in local arrangements for gaining consent and comply with their relevant code of professional conduct. This policy should be read in conjunction with DHSSPS guidelines for gaining consent. 4 SCOPE OF THE POLICY This policy applies to all health and social care staff, including locum and agency staff, employed by the Southern Trust involved in the examination, treatment, care, sharing of information, or promotion of health and well being of patients/clients accessing the services of the Southern Trust. 5 PRINCIPLES OF VALID CONSENT For consent to be valid it must be given voluntarily, by an appropriately informed person (the individual or, where relevant, someone with parental responsibility for a young person under the age of 16, or under 18 if the 16 /17 year old does not have sufficient capacity) who has the capacity to consent to the intervention in question. No person may give or refuse consent on behalf of another adult. Voluntary Consent must be given voluntarily and freely, without pressure or undue influence being exerted on the individual either to accept or refuse treatment or care. Such pressure can come from partners or family members as well as health or social care professionals. Professionals should be alert to this possibility and, where appropriate, should arrange to see the person on their own to establish that the decision is truly that of the patient/client. Coercion of any kind will invalidate the consent. Informed For consent to be valid the patient/client needs to understand the nature and purpose of the procedure and the risks, benefits, alternatives and implications of no treatment or care. Any misrepresentation of these elements will invalidate consent. Where relevant, information about anaesthesia should be given as well as information about the procedure itself. The Trust requires as evidence of good practice that patient/client records include a summary of the information given prior to gaining consent. Policy on Gaining Consent Page 7 of 14

Patients/clients from ethnic minority groups where language is an additional consideration should be supported by translation or interpreting services if considered necessary. The Southern Trust 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. Capacity For a person to have capacity to consent he or she must be able to - Comprehend and retain information relevant to the decision, - Understand the consequences - Weigh up the information and arrive at a choice - Communicate their choice This applies particularly as to the consequences of having, or not having, the intervention in question. Where a person submits to an examination, treatment or care process but does not communicate an understanding of what it entails or its consequences, he/she cannot be considered to have given a valid consent. The legal age to provide consent in Northern Ireland is 16 years and children / young people aged 16 years and over are presumed to be legally competent to give consent for themselves (Age of Majority NI Act 1969). A mature child under the age of 16 will also be competent to give, but not refuse, valid consent if he/she has sufficient understanding and intelligence to enable him or her to understand fully what is proposed (in Gillick or Fraser it is called a competent child). There is no specific age when a child becomes competent to consent to treatment as it depends on the individual child and the seriousness and complexity of treatment being proposed. If children / young people are competent to provide valid consent then consent should be sought directly from them but it is good practice to involve their parents in the process. Where an adult lacks the mental capacity (either temporarily or permanently) to give or withhold consent no one else can give or refuse consent on his/her behalf. However, treatment, health or social care 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. The DHSSPS Reference Guide to Consent for Examination, Treatment and Care, Department of Health, Social Services and Public Safety (March 2003) provides detailed guidance with regard to individual capacity to consent and action to be taken in circumstances of incapacity. Policy on Gaining Consent Page 8 of 14

5.1 Gaining Consent The person providing the treatment, examination, care, sharing information or promoting health and well being activity is responsible for ensuring that the individual patient/client has given a valid consent before treatment, care or activity begins. The GMC guidance states that where this is not practicable, the task of seeking consent may be delegated to another health professional, as long as that professional is suitably trained and qualified. In particular, he/she must have sufficient knowledge of the proposed investigation or treatment or care, and understand the risks involved, in order to be able to provide any information the individual may require. Inappropriate delegation (for example, where the professional seeking consent has inadequate knowledge of the procedure) may mean that the consent obtained is not valid. Each Southern Trust health and social care professional is professionally and personally responsible for acknowledging the limitations of his/her own competence and for seeking the advice of appropriate colleagues when necessary. Where consent covers a treatment or care plan to be carried out over a period of time, the patient/client record should reflect that the consent remains valid for the period of the intervention. In order to ensure that consent remains valid, a process should be in place whereby consent is reviewed and outcome recorded on a regular basis, particularly where the care or treatment regime needs to be amended to take account of the patient/client s changing health, social or medical care status. 5.2 Timing of Gaining Consent Consent must be sought before commencing examination, treatment or care of a patient/client. If consent is sought after a patient/client is given routine pre-operative medication it may be deemed to be invalid by this Trust. Consent may also be required for the sharing of confidential information and participation in certain health and well being promotion activities. For major activities, e. g., surgery under anaesthetic or moving to a nursing home, it is good practice to fully inform the individual about the implications, potential risks and benefits well in advance of the proposed activity. This will allow the individual time to reflect on the information about the activity or event and for the professional to respond appropriately to questions. The health or social care professional should again check, before the activity starts, that the consent is still valid and that the patient/client has not had a change of mind about proceeding. If consent is not gained until just before the activity care event is due to start, at a time when the patient/client may be feeling particularly vulnerable, there may be doubt as to the validity of the consent gained. Policy on Gaining Consent Page 9 of 14

5.3 Consent in emergency care In emergency situations, the need to initiate immediate treatment may limit the quantity of information necessary for the patient to give an informed consent. However, due care should be exercised to ensure that any legally binding wishes of the patient, expressed in advance of the emergency, are not overlooked. If the patient is well enough and has the sufficient capacity to understand the situation he/she has the right to refuse treatment, even if this decision may have a negative impact on health or wellbeing. Such decisions should be recorded in the patient s care plan and reflect the involvement of the patient in the decision-making process. If the patient is unconscious, or an emergency occurs when a patient is under general anaesthetic, staff may act in his/her best interests without consent in order to protect life and future health. On occasions, staff may need to seek legal advice before initiating treatment or care, although this may not always be practicable in an emergency situation. 5.4 Recording Information Provided on Gaining Consent The Southern Trust requires as evidence of good practice that information provided to the patient to help inform consent and any decision by the patient to withdraw or refuse of consent, is recorded in the patient/client record. It is important that a recording format is agreed and applied consistently within the discipline or profession. Records should also include the information given to the patient or client to aid his/her decision and where refusal of consent by a patient/client prevents care being given. Where a decision is taken to proceed without consent the reasons should be clearly recorded in the client file. 5.5 Recording Written Consent Southern Trust staff must obtain written consent for significant procedure such as a surgical operation or intervention, an audio or video recording session. Specific guidance in each of the above areas is provided in the accompanying Guidance for Staff. Further guidance with regard to consent for participating in a research project can be found in the Southern Trust Research Management System (February 2008). The DHSSPS has directed that Trusts should identify the circumstances in which it considers written consent must be obtained from the patient or client prior to examination, treatment, care or services. 5.6 Withholding, Refusing or Withdrawal of Consent Whilst it is important that health and social care professionals gain valid consent it is equally important to recognise that a patient or client who has the capacity to understand information given to him, has a legal right to withhold or refuse consent to be examined, treated or cared for, even if refusal is considered not to be in his/her best interests. Specific guidance on Policy on Gaining Consent Page 10 of 14

Withholding, Refusing or Withdrawal of Consent in is provided in the Trust s Guidance for Staff. Similarly, a patient or client may decide that they would refuse a particular treatment if something happened to them in the future and they were no longer capable of refusing consent. Health and social care staff are bound by this earlier decision (Living Will) even if it is contrary to professional opinion but must be checked for continuing validity and assurance that it is still in accordance with the patient/client wishes. There are certain exceptions to this in relation to the exercise of powers under the Children (NI) Order 1995 and the Adoption (NI) Order 1987 in relation to the protection of children from significant harm, and the exercise of powers under the Mental Health (NI) Order 1986. The Trust has a duty to exercise its powers under these Orders in certain circumstances where consent to care or treatment is refused. Trust staff must follow the relevant guidance in these circumstances. A further exception arises in relation to the sharing of information for the purposes of social work assessments of child care referral. Guidance in the letter dated 26 August 2008 from the Chief Social Services Officer should be followed by all Trust staff. 1 6 RESPONSIBILITIES 6.1 Responsibility of Chief Executive The Trust Chief Executive, as Accountable Officer has overall responsibility for ensuring that the aims of this policy are met. 6.2 Responsibility of Senior Management All Trust Directors, Assistant Directors, Service Heads and Senior Managers have responsibility for the effective application of this policy. They will ensure that resulting action plans are implemented and monitored and that information required in relation to affecting this policy is provided promptly and completely. 6.3 Responsibility of Trust Staff All Trust staff have a responsibility to adhere to the principles and aims of this policy and to comply with any direction in pursuit of this policy. 1 Information Sharing/Consent Issues child care concern reported to Children s Services social work staff: letter from DHSSPS Chief Social Services Officer 26 August 2008. Policy on Gaining Consent Page 11 of 14

7 RELEVANT LEGISLATION, PROCEDURES AND GUIDANCE Health and Social Care professionals must consider the following when complying with this policy: Adoption Order (NI) 1987 Age of Majority NI Act 1969. Children Order (NI) 1995 Data Protection Act 1998 Draft Code of Practice on Protecting the Confidentiality of Service User Information Version 7.1 May 2007 Department of Health, Social Services and Public Safety (March 2003) - Reference Guide to Consent for Examination, Treatment and Care, - Good Practice in Consent, Implementation Guide for Healthcare Professionals, Department of Health, Social Services and Public Safety - Seeking Consent: Working with Children, Department of Health, Social Services and Public Safety - Seeking Consent: Working with Older People, Department of Health, Social Services and Public Safety - Seeking Consent: Working with People with Learning Disabilities, Department of Health, Social Services and Public Safety - Seeking Consent: Working with Prisoners and Other Detainees, Department of Health, Social Services and Public Safety DHSSPSNI Chief Social Services Officer. Information Sharing/Consent Issues child care concern reported to Children s Services social work staff : letter dated 26 August 2008 DHSSPSNI Code of Practice on Protecting the Confidentiality of Service Users Information, January 2009. DHSSPSNI Consent in Social Care July 2004 Gillick Vs Westnorfolk and Wisbech AHA (1986) AC112 Human Rights Act 1998 Human Fertilisation and Embryology Act 1990 Human Tissue Act (2004) Mental Health (NI) Order 1986 Policy on Gaining Consent Page 12 of 14

Southern HSC Trust Record Keeping Standards, draft July 2008 Southern HSC Trust Research Management System (February 2008) 8 EQUALITY AND HUMAN RIGHTS CONSIDERATIONS This policy has been screened for equality implications as required by Section 75, Schedule 9, of the Northern Ireland Act, 1988. Equality Commission of Northern Ireland Guidance states that the purpose of screening is to identify those policies which are likely to have a significant impact on equality of opportunity so that greatest resources can be targeted at them. Using the Equality Commission s screening criteria no significant equality implications have been identified. This policy will therefore not be subject to an equality impact assessment. This policy has been considered under the terms of the Human Rights Act, 1998, and was deemed to be compatible with the European Convention of Human Rights contain in that Act. This policy will be included in the Trust s register of screening documentation and maintained for inspection whilst it remains in force. This document can be made available on request in alternative formats, for example Braille, disc, and audio cassette and in other languages to meet the needs of those who are not fluent in English as is the Patient Information Leaflet Consent It s up to you. 9 SOURCES OF ADVICE AND FURTHER INFORMATION Further advice and information regarding this policy can be obtained from the Medical Director, Executive Directors of Nursing/AHP and Social Work or from the Assistant Directors of Nursing, AHP and Social Work / Social Care Governance. Policy on Gaining Consent Page 13 of 14

APPENDIX 1 Southern HSC Trust agreed circumstances in which written consent is required as at June 2009 All procedures requiring the administration of a general anaesthetic; Electro-Convulsive Therapy, except where right to refuse is over ruled by the Mental Health Order (NI) 1986; All procedures with recognized signs of complications including those requiring the administration of a local anaesthetic by injection 2 ; The treatment of verrucae requiring the use of caustic preparations; All podiatry biomechanical assessments; All procedures requiring prior sedation; Hospital post-mortem examination 3 ; Histopathological examination of early miscarriage/products of conception tissue; Hospital disposal of foetal remains and products of conception; All immunisations carried out by registered nurses, midwives or health visitors/specialist community public health nurses; All screening and general health checks carried out by members of the school health team; The medical examination of a child by a community medical officer where a parent or guardian is not present; Speech and language therapy referral for a medical child developmental assessment; Speech and language therapy assessment of a child or therapeutic intervention in any setting where the parent is not present; Prior to patient or client placement in a residential/nursing home; Interviewing children and young persons under Joint Protocol processes; Video evidence in child protection proceedings; Video recording of an assessment / examination, treatment or care procedure; Video evidence in adult protection proceedings, Clinical photography, photography and digital images of children and young people participating in health and well being promotional activities, and Exhibiting or publishing art or written work created by service users. This list is accurate at the time of policy ratification and circulation. However, it may be subject to amendment and additions as the need arises and staff will be advised of any subsequent changes to the list. This list will be reviewed on an annual basis. 2 Written consent is not required for local anaesthetic routinely administered for dental treatment. 3 For specific guidance refer to the Human Tissue Authority Code of Practice Consent DoH 2006, Post Mortem Examinations - A Code of Good Practice: Rights of Patients and Relatives and Responsibilities of Professionals DHSSPS at www.dhsspsni.gov.uk Policy on Gaining Consent Page 14 of 14