1. Consent and governance (1)
Care Quality Commission requirement – Health and Social Care Act 2008 (Regulated Activities Regulations 2014
Regulation 11:
Care and treatment of service users must only be provided with the consent of the relevant person.
Paragraph (1) is subject to paragraphs (3) and (4).
If the service user is 16 or over and is unable to give such consent because they lack capacity to do so, the registered person must act in accordance with the Mental Capacity Act 2005.
But if Part 4 or 4A of the Mental Health Act 1983 Act applies to a service user, the registered person must act in accordance with the provisions of that Act.
Nothing in this regulation affects the operation of section 5 of the Mental Capacity Act 2005, as read with section 6 of that Act (acts in connection with care or treatment).
CQC can prosecute a breach of this Regulation without sending a warning notice.

2. Consent and governance (2)
Francis report:
It is unacceptable for treatment to be given to a patient without his or her informed consent or other lawful authority…
[there should be a] system that ensures consent or other lawful authority is obtained for all treatment. As giving treatment without consent is unlawful, it is reasonable to require the system to be infallible, as redress for the patient and sanctions should follow automatically…

3. Consent and claims
“If you’d properly explained the risks associated with what you were going to do, I’d have said no!”
“If you’d properly told me why I needed treatment, I’d have agreed to it!”
Appears on most claim forms
Consent processes feed into NHSLA Risk Management Standard 5

4. Risks No information given at all = criminal/civil assault + battery
Some information provided = consent itself is valid, but failure to give sufficient information could be negligent
Breach of professional duties
GMC good medical practice paragraph 49
NMC code paragraph 4

5. Three elements to valid consent
Must be a voluntary decision: no undue influence
Patient must have capacity to consent
Patient must be informed
Consent is not just a signature on a consent form!

6. 1. No undue influence Valid consent has to be a voluntary decision:
no pressure
no coercion
no duress
Sources of coercion:
family members
friends
religious leaders
Clinicians?

7. Mental Capacity Act 2005 (MCA) s.1: The principles
Presumption of capacity unless proved to contrary
All practicable steps to help make decision
May have capacity even if unwise decision
Act/decision on behalf of P must be made in P’s best interests
Consider if purpose achievable in less restrictive way

8. MCAs. 2: People who lack capacity
“…a person lacks capacity ... if at the material time he is unable to make decision for himself in relation to the matter, because of an impairment of, or disturbance in the functioning of, the mind or brain.”
Loss of capacity may be temporary or permanent
May be capable of making some, but not all, decisions
Decide on balance of probabilities

9. Common Law: Capacity Re C (Adult: Refusal of Treatment) [1994]
The individual is presumed to have capacity to make a treatment decision; unless
unable to take in and retain the information material to the decision, especially as to the likely consequences of having or not having the treatment; or
is unable to weigh the information in the balance, as part of the process of arriving at the decision

10. MCA, s.3: Inability to make decisions
A person is unable to make a decision for himself if, at the material time, he is unable to
understand the information relevant to the decision
retain that information
use or weigh that information as part of the process of making the decision; or
communicate his decision

11. MCA, s.4: Best interests

12. Mental Capacity Act - Advance Decisions (1)

13. Mental Capacity Act - Advance Decisions (2)

14. Mental Capacity Act Advance Decisions (3)

15. Mental Capacity Act - Advance Decisions (4)

16. Mental Capacity Act - Advance Decisions (5)

17. Mental Capacity Act - Lasting Powers of Attorney (1)
P can create an LPA 
This gives the Donee (D) authority to make decisions for P on personal welfare (to include consenting to or refusing treatment) 
The LPA must be registered with the Court of Protection to be valid 
Under Section 10 – Donee must be over 18

18. Mental Capacity Act - Lasting Powers of Attorney (2)

19. Mental Capacity Act - Lasting Powers of Attorney (3)

20. Children – 16 and 17 year olds

21. Children - Under 16 years old

22. Parental Responsibility

23. Refusal of treatment by a child

24. What to tell the patient?

25. What makes consent informed?

26. What to tell the patient

27. Montgomery v Lanarkshire Health Board [2015]

28. Montgomery v Lanarkshire Health Board

29. Montgomery v Lanarkshire Health Board

30. Practical guidance on consent

31. How to obtain consent

32. Proving it

33. When consent is not needed