KEY POINTS

  • Assessment and review activity should, as far as possible, take place with the consent of the person.
  • Where someone lacks capacity to consent, a best interests decision should be made to continue.
  • Where there is no formally empowered decision maker, the best interest decision maker is the assessor.
  • General Data Protection Regulations (GDPR) remove the requirement for consent in relation to processing personal information to carry out our statutory functions – people must have a Privacy Notice telling them how we use their information.

December 2018: This chapter was revised throughout as a result of local review.

1. Introduction

All Adult Care practice should be undertaken with the participation and informed consent of the customer where they are able to give it.

The MCA and the Code of Practice will be considered wherever a person appears to not have capacity to consent to us working with them. Where it is evident that a customer does not have capacity to give informed consent, the practitioner will need to clearly identify who is the decision-maker in relation to consent and capacity, see Section 1, Identifying the Decision Maker, Best Interests Decisions chapter.

2. Recording Consent and Capacity

We should obtain consent each time we undertake an assessment or review and record this in the Consent and Capacity section of the assessment and review forms in the customer record.

This section of the assessment and review form replaces the Consent and Capacity paper form which is now withdrawn from use.

3. What are People Consenting to?

The customer is asked to consent to us undertaking the assessment or review, including screening them for Continuing Health Care.

The consent and capacity section of the assessment includes a passage of text which should be explained and, if required, read to customers.

Assessment consent and capacity section explanatory note

This assessment is being undertaken under Lincolnshire County Council’s statutory duties. The assessment and any care and support planning that follows will require us to record information in our electronic systems and share information with organisations involved in your care and support.

As part of your assessment we will consider whether you are eligible to receive support from the NHS called Continuing Health Care funding. This will involve sharing relevant information from your assessment with the NHS.

‘General Data Protection Regulation’ provides the Council with a framework to safeguard your personal information. Please see the Council’s Privacy Notice issued prior to the assessment and available on the Council’s website  for information about how your information will be handled.

We ask for and record your consent before doing the assessment. For people who do not have capacity to consent we will record why we believe you lack capacity. We will also record details of any decisions to continue with the assessment, taken in your best interests by either your formally appointed representative or your assessor.

4. Information Sharing

The revised process for recording consent reflects changes introduced by the General Data Protection Regulations (GDPR). Whilst this explanatory note explains to people that we gather information, record and share it with people or organisations relevant to their care and support, we are not obtaining consent for information sharing.

GDPR does not require organisations to obtain consent to process personal information when it is collected and processed in carrying out statutory duties. Instead we are required to issue people with a Privacy Notice that states how we process and safeguard personal information.

Customers should usually be issued with a paper copy of the Privacy Notice (Assessments, Care and Support) as part of the information and advice they receive prior to a new assessment taking place. It is not necessary to issue a privacy notice every time we obtain consent, but all customers should be aware of where they can access a copy of the notice.

5. Where People Lack Capacity to Consent

In accordance with the Mental Capacity Act, where someone appears to lack capacity in relation to the specific decision of consenting to an assessment, an assessment of the person’s capacity should be done with reference to the two stage capacity test (see Mental Capacity Assessments chapter) and a best interest decision should be made.

The Consent and Capacity section of the assessment and review forms is designed to enable a proportionate assessment of capacity and best interest decision to be recorded for this specific decision. This proportionate approach should usually be sufficient and is predicated on the presumption that it is in the customer’s best interests to have an assessment or review.

Where no objection to the assessment has been raised by either the customer or anyone involved in the assessment, and you are satisfied that it is in the customer’s best interests to continue with the assessment, the assessment should proceed. The only exceptions to this are:

  • where the customer is refusing to cooperate with the assessment process;
  • where any other person involved with the customer expresses dissent from the presumption of best interests to proceed;
  • where the customer or a representative asks for the Capacity Assessment and Best Interest Decision paperwork to be completed.

In these situations, the Mental Capacity Assessment and Best Interests forms should be recorded.

Please note: This only relates to the specific decision to progress with assessments, recording and information sharing. Where the customer appears to lack capacity in relation to all other decisions relating to the customer’s support arrangements, those decisions are subject to the full Mental Capacity Assessment and Best Interest process.