CH54. Consent to Care and Treatment for Children Receiving a Domiciliary Care Service
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Consent to Care and Treatment for Children Receiving a Domiciliary Care Service (England) Policy
Policy Statement
This policy applies where a domiciliary care service agrees to meet the care and support needs of a child or children under the age of 18 years in line with its registration conditions. It should be read and used in relation to the service’s main Consent to Care and Treatment Policy.
The policy is needed because a domiciliary care service can apply to register a personal care service for children in one or more of three age bands:
- 0–3 years
- 4–12 years
- 13–18 years.
As a registered care service we must comply with Regulation 11: Need for Consent of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, with the accompanying guidance issued by the Care Quality Commission (CQC), and the Quality Statement, which forms part of the CQC’s single assessment framework under key domain Effective, ie:
“We tell people about their rights around consent and respect these when we deliver person-centred care and treatment.”
Regulation 11 expresses a requirement on all care providers to seek the consent of people using the service to carry out any proposed care and treatment, and to follow specific procedures in line with the Mental Capacity Act 2005 where people are unable to give their informed consent.
In line with its consent policy for adults, {{org_field_name}} applies the same principles regarding valid consent to any child or children whose needs for personal care it has agreed to meet.
It accepts that in law, a person’s 18th birthday draws the line between childhood and adulthood (Children Act 1989 s105). Regarding their health and care, an 18 year old enjoys as much autonomy as any other adult. 16 and 17 year-olds can also take medical decisions independently of their parents to a more limited extent.
However the right of younger children to provide independent consent must be proportionate to their competence not just age alone. This is often referred to as “Gillick competence”.
{{org_field_name}} will consider that everyone is competent to take their own decisions about their care and support needs unless it can be shown otherwise. It considers that valid consent is given when it is:
- given freely, without duress or coercion
- given by someone who is legally capable (or competent) of consenting
- specific and covers the care and support that has been proposed and planned
- informed, ie the person understands what is involved
- definite and lasting, ie the person agrees that what is being proposed is right for them at the time, and this will continue, but any changes to the plan will also require their consent.
Procedures
In applying these principles to a child or children, {{org_field_name}} will develop its procedures in line with the following.
Children under the age of 14 years
1. The service will seek and accept the consent of a person with parental responsibility for any child receiving its care under the age of 13 years (the first two of the CQC’s age bands). It uses the common definition of parental responsibility in terms of:
- the child’s mother or father
- the child’s legally appointed guardian
- a person with a residence order concerning the child
- a local authority designated to care for the child
- a local authority or person with an emergency protection order for the child.
{{org_field_name}} will not proceed to provide a service to any child in these age group without written parental consent, which might also be needed for specific activities that are part of the child’s care and support plan.
2. In line with good practice it will, in partnership with the parents or those with parental responsibility, communicate and discuss with and involve the child or children wherever practical in the proposed care plan and will continue to do so with the implementation of the care plan.
Children aged 14–16 years
3. With children aged 14–16 years {{org_field_name}} is aware of the idea of “Gillick Competence” as it applies to consent to medical treatment either in terms of requesting and seeking treatment or to receiving it. To decide if a child is competent to make their own decisions about their care needs {{org_field_name}} is aware that it must consider:
- the child’s age, maturity and mental capacity
- their understanding of their personal care needs and what they involves — including advantages, disadvantages and potential long-term impact
- their understanding of the risks, implications and consequences that may arise from their decision
- how well they understand any advice or information they have been given about their care and support needs
- their understanding of any alternative options, if available
- their ability to explain their reasoning and decision making.
4. Accordingly, it will actively engage with the child or children with the parents or those with parental responsibility to ensure that they understand the purpose and nature of the personal care being proposed as described on the care and support plan, and to seek their agreement in principle to it.
5. If a child is agreed to the idea of receiving personal care but not necessarily on the details, then the child’s concerns will be made subject to discussion and negotiation with the parties involved, and the care plan can be adjusted accordingly so that they are happy with it. Discussions will include any risks to the child’s safety of any aspect of the care plan with which the child is unhappy. The final agreement will be with written parental consent.
6. If the child is opposed to the idea of receiving personal care as proposed in the care plan and will not agree to it, {{org_field_name}} will discuss with the child, the parents or those with parental responsibility and where involved service commissioners if it is possible to reach an agreement that is in the child’s best interests over the plan as a whole or different aspects of fit.
7. The parties involved will try to reach an agreement based on:
- the child’s assessed needs
- their wishes and reasons
- their ability to understand the implications of any refusal to receive the care and support proposed
- the risks to their safety and wellbeing of not receiving a service
- the alternatives available
- the wishes of the parents or those with parental responsibility
- the implications for them including any added stresses of not receiving a service.
8. {{org_field_name}} will not proceed with the service without the explicit agreement of both those with parental responsibility and child, taking into account that consent must always be freely given and is invalid if given under duress or coercion.
9. In these circumstances {{org_field_name}} will try to accommodate any decision to proceed with the service. It will also reserve the right to withdraw its services if the child makes it clear that they will not consent or cooperate to their receiving the personal care proposed and if any attempts to do so could put its care workers at risk. The final agreement will also need to be with parental consent.
10. {{org_field_name}} recognises that in law young people over the age of 16 years are presumed to have sufficient capacity to decide on their own care and treatment, which includes receiving personal care, unless there is significant evidence to suggest otherwise.
11. This means that {{org_field_name}} will always seek the valid consent of a young person to provide them with personal care as it does to an adult with care and support needs. It will also check that the parents or those with parental responsibility accept the young person’s decision. It might ask for a reassessment of the care arrangements to which it has agreed if there are strong conflicts of interest that make it difficult to achieve the outcomes sought from the planned care and support because of any safeguarding concerns that result from them.
12. {{org_field_name}} recognises that the Mental Capacity Act 2005 applies from the age of 16 years and will seek consent to meet the care and support needs of any person from that age onwards who appears unable to give their valid consent because of mental incapacity with a best-interest decision taken as an outcome of the assessment.
13. {{org_field_name}} recognises that it has an overriding duty of care to refer a child or young person to the children’s safeguarding authority whom it believes might be at risk of harm because of their refusal to accept or receive the personal care that they have been assessed as needing despite all reasonable efforts to gain their consent.
14. It also recognises that an application to the Court of Protection might be needed where refusal of an incapacitated person to receiving personal care could put them at risk of significant harm.
15. The service will expect its care workers to actively seek the consent of a child’s parents and that of the child or children in all the acts of personal care in which they engage, and to record and report any difficulties or concerns that they might have in the course of their work.
Training
Consent issues are fully covered in {{org_field_name}}’s induction and training programmes in line with the guidance and standards produced by the relevant social and healthcare workforce development organisations.
{{org_field_name}} provides training in the Mental Capacity Act 2005 for all of its staff involved in the care of the people using the service. It allows only staff who have completed the training, and have shown that they are competent, to take part in “best interests” decision making in relation to people receiving care who cannot give their informed consent.
If {{org_field_name}} also provides a service to children and families it will ensure that staff involved in the service provision are aware of the issues around consent as outlined in this policy, and know how to obtain the necessary consent of the child or children and their parents.
Responsible Person: {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}
Reviewed on: {{last_update_date}}
Next Review Date: {{next_review_date}}
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