Consent and capacity

When to obtain consent

You do not always need consent to share information. Consent should only be sought in situations where you believe you have no other grounds (or powers) to share the information and the person has a ‘choice’ about whether or not you share their information. You must always ask yourself ‘if they say no, do I want to share it anyway?’

If the answer is yes, for example, because you have wellbeing or safeguarding concerns,  then it is not appropriate or necessary for you to ask for their consent. It is best practice to engage with people to try and get their agreement to share, where it is appropriate and safe to do so.

Consent is only valid if the person is fully informed and competent to give consent and they have given consent of their own free will and without coercion from others. Individuals have the right to withdraw consent at any time.

When not to obtain consent

You should not seek consent to disclose personal information in circumstances where:

  • someone has been hurt and information needs to be shared quickly to help them
  • obtaining consent would put someone at increased risk of harm
  • obtaining consent would prejudice a criminal investigation or prevent a person being caught or questioned for a crime they may have committed
  • the information must be disclosed regardless of whether consent is given, for example if a court order or other legal obligation requires disclosure.

Consent from under 16s

For a person to be able to give or refuse consent to the sharing of their information, they must be considered competent and have the mental capacity to make that decision.

Children under the age of 12 are not generally considered competent to make decisions regarding consent. In such circumstances consent must be sought from a person who has parental responsibility for that child.

Where a person is over 12 but under 16 years old, they must be assessed to see whether they are competent. If they are, then consent should be obtained from them. The young person should be encouraged to involve family members or other people close to them when making decisions regarding consent, where it is appropriate to do so.

Consent from over 16s and adults

Young people aged 16 years and over and adults 18 years and over are presumed in law to be competent to give or withhold consent to the sharing of their personal information, unless there is evidence to the contrary , that they lack the competence or mental capacity to provide such consent, for example through illness, impaired mental or physical health or condition, intoxication from alcohol, drugs or substance misuse.

If a person is considered not to have competence or capacity to make decisions about themselves, their views should still be sought as far as possible. In such cases it may be appropriate to seek consent from other individuals who are legally entitled to act on their behalf.

When assessing a person’s capacity staff must follow the Mental Capacity Act 2005 Code of Practice, in particular sections 4.11 – ‘What is the test of capacity?’ and 4.38 – ‘Who should assess capacity’.

Assessing competence

The following questions will help you decide whether a young person is competent to give valid and informed consent to the sharing of their information.

  • Do they understand the question being asked of them?
  • Do they have a reasonable understanding of:
    • what information might be shared
    • the main reasons for sharing the information?
    • implications of sharing that information and of not sharing it?

And can they:

  • consider the options that are open to them to agree or disagree
  • weigh up one side of the decision against the other
  • express their own opinion on the matter and not just repeat what someone else thinks they should do
  • be reasonably consistent in their opinion on the matter and not constantly changing their mind
  • fully understand the implications of their decision for themselves and others?

Parental responsibility

 If a child is not competent to give consent for themselves, consent should be sought (where appropriate) from a person with parental responsibility, often   but not always, the child’s parent. Consent is only required from one person with parental responsibility, although it is good practice to involve all those close to the child in the decision-making process.

In England and Wales, if the parents of a child are married to each other at the time of the birth, or if they have jointly adopted a child, then they both have parental responsibility. Parents do not lose parental responsibility if they divorce and this applies to both the resident and the non-resident parent.

According to current law, a mother always has parental responsibility for her child. A father however, has this responsibility only if he is married to the mother when the child is born or has acquired legal responsibility for his child through:

  • jointly registering the birth of the child with the mother (from 1 December 2003)
  • a parental responsibility agreement with the mother
  • a parental responsibility order, made by the court.

A person also has parental responsibility if they have been appointed as a guardian, by a Court or by the mother or other guardian; are a person in who a court has made a residence order concerning the child; are a local authority designated in a care order in respect of the child (but not where the child is being looked after under Section 20 of the Children Act 1989) or are a local authority or other authorised person who holds an emergency protection order in respect of the child.