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HCS49-Consent to Care and Treatment Policy

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Consent to Care and Treatment Policy

1. Purpose

The purpose of this policy is to define how {{org_field_name}} upholds the legal and ethical principles of consent in all aspects of care and support. Our commitment is to ensure that the people we support are fully informed, involved in every decision about their care, and empowered to exercise their right to choose, accept, or refuse care or treatment at any time.

This policy supports our duty to promote autonomy, protect individual rights, and meet the standards of regulatory bodies. It guides our staff in understanding when and how to seek consent, how to support individuals who may have fluctuating or impaired capacity, and how to record and act on consent appropriately.

We are committed to ensuring that no care or treatment is provided without the person’s agreement, unless legally authorised and justified by law.

2. Scope

This policy applies to all staff employed or contracted by {{org_field_name}} who are involved in delivering care or support, including:

It also applies to external professionals and family members who are involved in supporting or representing the people in our care.

The policy relates to all areas of care delivery, including but not limited to:

3. Related Policies

This policy should be read in conjunction with:

4. Legal and Regulatory Framework

Our approach to consent complies with the following legislation, standards and guidance applicable to Care at Home services in Scotland:

The Health and Social Care Standards clearly expect that people experience care and support that is right for them, are treated with dignity and respect, are fully involved in decisions about their care and support, and have their human rights upheld. Staff must therefore seek consent in a way that is meaningful, accessible and specific to the care or support being provided.

5. Policy Statement

{{org_field_name}} is committed to ensuring that consent to care and treatment is:

We ensure that staff are trained and supported to recognise the legal and ethical importance of consent, to respond appropriately where consent is refused or withdrawn, and to act lawfully where legal authority applies.

In Scotland, where an adult lacks capacity, decisions must not be described simply as being made in the person’s “best interests”. Any intervention must comply with the Adults with Incapacity (Scotland) Act 2000 principles, including that the intervention must benefit the adult, be the least restrictive option, take account of the adult’s present and past wishes and feelings, involve consultation with relevant others, and encourage the adult to exercise decision-making skills as far as possible.

6. How We Manage Consent Efficiently and Responsibly

6.1. Obtaining Informed Consent

At {{org_field_name}}, informed consent is sought before any care or support begins. This involves:

We understand that consent is not a one-off event, but an ongoing dialogue. Consent is revisited regularly, particularly during care reviews or when there is a change in the care plan.

Consent must be treated as an ongoing process rather than a one-off signature. Staff must check the person’s agreement at the point of care, especially where the care is intimate, intrusive, new, changed, high-risk, or not part of the person’s usual routine. Where a person appears reluctant, distressed, confused or resistant, staff must pause, communicate in a way the person understands, offer reassurance, and seek advice from a senior member of staff before proceeding, unless there is an immediate risk requiring urgent action.

If a person refuses care, this is respected and recorded. Staff must never proceed with care against a person’s wishes unless legal authority applies.

6.2. Supporting People to Give Consent

We ensure that people are supported to give informed consent by:

We train staff to use supported decision-making approaches, which help individuals feel confident in expressing their preferences and understanding their options.

Supported decision-making must be used wherever possible. Staff must not assume that a person cannot consent because they have dementia, a learning disability, mental ill health, communication difficulties, sensory impairment, acquired brain injury or fluctuating capacity. The starting point is that the person should be supported to make their own decision unless there is clear evidence that they are unable to do so for the specific decision at the specific time.

We follow HSCS Standard 2.12: “If I am unable to make my own decisions at any time, the views of those who know my wishes, such as my carer, independent advocate, formal or informal representative, are sought and taken into account.”

6.3. Consent and Capacity

We recognise that capacity is decision-specific, time-specific and may fluctuate. A person may have capacity to make some decisions but not others. Staff must begin from the presumption that the person has capacity unless there is evidence to the contrary. A person must not be treated as lacking capacity simply because they make a decision that others consider unwise, risky or unusual.

Where there is doubt about an individual’s capacity to consent, the following process must be followed:

Staff are trained to work within legal boundaries and seek management support when capacity is in question. They are reminded that lack of capacity does not mean lack of rights, and all actions must reflect the least restrictive option and the person’s known values and preferences.

6.4. Medical Treatment, Medication and Section 47 Certificates

Where care or support involves medical treatment, nursing care, medication support, wound care, clinical monitoring or treatment delegated by a healthcare professional, staff must be clear about the legal basis for proceeding if the person cannot consent.

Where an adult lacks capacity to consent to medical treatment, treatment must be authorised in accordance with Part 5 of the Adults with Incapacity (Scotland) Act 2000. This will usually require a section 47 certificate of incapacity completed by an authorised healthcare professional. Care staff must not decide independently that treatment can proceed under AWI. Staff may only assist with treatment or medication where this is within their role, training, competence, care plan, medication policy, and any instruction or delegation from the relevant healthcare professional.

If there is a welfare attorney, welfare guardian or intervention order holder with relevant powers to consent to the treatment, their consent must be sought by the responsible healthcare professional unless it is not reasonable or practicable to do so. Staff must record the existence and scope of any such authority in the personal plan.

If the person resists or objects to treatment, staff must stop and seek urgent advice from the manager and relevant healthcare professional, unless immediate action is necessary to prevent serious harm. Force or restraint must not be used unless there is clear legal authority, it is immediately necessary, proportionate, the least restrictive option, and it is recorded and reported in line with policy.

6.5. Consent to Share Information

Personal information will usually be shared with the person’s consent. However, consent is not the only lawful basis for sharing information. Information may also be shared where there is another lawful basis under UK GDPR and Data Protection Act 2018, where sharing is necessary to protect vital interests, to comply with a legal obligation, to perform a public task, to support adult protection, or where there is a substantial risk of harm.

At the point of initial assessment, we:

If a person refuses consent to share information that may impact their safety or wellbeing, we assess whether a duty of care or legal justification overrides that refusal. Such cases are always discussed with a manager and recorded in detail.

Where there is an adult support and protection concern, staff must not delay sharing relevant information because consent has been refused or cannot be obtained. Staff must escalate the concern to the Registered Manager and follow the Adult Support and Protection Policy, local multi-agency procedures and any legal duties to co-operate or share information. The reason for sharing, or not sharing, must be clearly recorded.

6.6. Withdrawing Consent

A person may withdraw their consent at any time, either verbally or in writing. When this happens:

In some situations, such as the refusal of essential medication or personal care, we may involve the individual’s GP, social worker, or advocate to support the person in making an informed decision, while continuing to respect their autonomy.

Withdrawal of consent must not be treated as non-compliance. Staff must respect the person’s autonomy and use a rights-based, trauma-informed and person-centred approach. Where the refusal relates to essential care, medication or treatment, staff must seek advice promptly from the Registered Manager and, where appropriate, the GP, pharmacist, community nurse, social worker, mental health team, advocate or legal proxy.

6.7. Consent, Restrictive Practice and Restraint

Staff must not use restraint, restrictive practice, locked doors, physical intervention, medication, equipment, surveillance or environmental restrictions as a substitute for consent. Any restriction on a person’s independence, choice, privacy or movement must be lawful, necessary, proportionate, the least restrictive option and clearly recorded.

Where a person lacks capacity and a restriction is proposed to keep them or others safe, the decision must follow the Adults with Incapacity (Scotland) Act 2000 principles and any other relevant legal framework. The person must still be involved as far as possible, and the views of relevant others must be sought where appropriate.

Where a person has capacity and refuses a proposed restriction, staff must respect this unless there is a clear legal basis to act otherwise. Any concern about serious risk must be escalated to the Registered Manager and relevant professionals.

All restrictions must be included in the personal plan, risk assessment and review process. The plan must explain the reason for the restriction, the legal basis, the alternatives considered, how the restriction will be monitored, and when it will be reviewed.

6.8. Staff Training and Awareness

All staff at {{org_field_name}} receive comprehensive training in:

Consent is discussed in staff supervision and team meetings to ensure good practice is continuously embedded and reviewed.

The SSSC Codes of Practice require workers to protect and promote the rights and interests of individuals and carers, respect people’s views, wishes and choices, promote people’s control over their lives and informed choices, communicate using the person’s preferred method and language, respect confidential information, work lawfully and safely, maintain clear and accurate records, and seek support where they are unsure how to proceed.

7. Roles and Responsibilities

Registered Manager

Has overall responsibility for ensuring that all care delivered by {{org_field_name}} is based on informed consent. This includes overseeing training, monitoring practice, and supporting staff in complex or high-risk decisions.

The Registered Manager must ensure that the service has effective systems for recording consent, refusal, withdrawal of consent, legal authority, capacity concerns, information sharing decisions and any restrictions. The Registered Manager must ensure that staff know when to escalate concerns and that advice is sought from health, social work, advocacy, legal proxy or adult protection professionals where required.

Deputy Manager and Team Leaders

Support staff in seeking, recording, and reviewing consent. Ensure that care plans reflect consent appropriately and that concerns about capacity or refusal are escalated and addressed.

They must check that personal plans clearly identify how consent is obtained for each relevant area of care and support, including medication, personal care, moving and assisting, use of equipment, sharing information, financial support and contact with representatives.

Care Staff

Care staff are responsible for seeking consent before each care activity, communicating in a way the person understands, respecting refusal or withdrawal of consent, recording significant consent decisions, and escalating concerns about capacity, risk, safeguarding, legal authority or refusal of essential care. Care staff must not assume that family members can consent unless there is evidence of legal authority or the person has agreed to their involvement.

People We Support

Have the right to be fully involved in all decisions about their care and to give or withhold consent at any time, with appropriate support.

People we support also have the right to be supported to understand information, to communicate their wishes, to change their mind, to involve an advocate or representative, and to have any legal proxy arrangements respected where these are valid and relevant.

7.1 Recording Requirements

Consent records must be clear, accurate, dated and proportionate. The personal plan and associated records must show:

Consent records must be reviewed as part of personal plan reviews, following any significant change in need, following refusal or withdrawal of essential care, following safeguarding concerns, and at least every six months in line with personal planning requirements.

8. Policy Review

This policy will be reviewed at least annually and sooner where there is a change in legislation, national guidance, Care Inspectorate expectations, Mental Welfare Commission guidance, SSSC Codes of Practice, local adult protection procedures, or organisational learning from incidents, complaints, audits or inspections.

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}}
Copyright © {{current_year}} – {{org_field_name}}. All rights reserved.

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