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Are you sure you’re sure?
There are many groups of service users who respond well to being consulted about their care and who can clearly make choices as to how support is given. But what about those whose capacity to give consent is not clear? The regulations require us to ensure that consent is based on an understanding of the choices and consequences of those choices, and to provide opportunities for people to change or stop care if they choose to. Human rights must be protected. This is indeed a noble sentiment but there are two points in the content of Outcome 2 that provide a potential loophole.
Able and Valid
CQC state that consent should be sought and gained for service users ‘where they are able’ and that the consent should be ‘valid’. These caveats could potentially exclude many profoundly disabled people, if their level of understanding was in question but for the existence of advocacy services and the provisions under the Mental Capacity Act for ‘best interest’ decision making. We have a responsibility to ensure that service users have access to these support mechanisms and that we record their use as part of our evidence of gaining consent.
Where service users appear not able to comprehend information about their care, the use of independent advocates or ‘best interest’ meetings can be useful. But before we rush into either of these options, I feel we must revisit our assumption that informed consent is not a possibility.
The Mental Capacity Act says before we look to ‘best interest’ methods, all practicable steps must first be taken to assist people to make decisions. We should establish the understanding of the person using a variety of means and involving people who know them very well. A service provider I know have begun to use ‘Talking Mats’ to increase service users capacity to make choices and share feelings about the things that are important to them. These are communication tools devised by speech and language therapists that use symbols and pictures to represent ideas and choices, allowing the service user to position these on a special mat in line with their importance and relevance to their feelings.
Using alternative and augmentative communication to gain and confirm consent demonstrates to CQC that you are sensitive to the potential of your user group. It says that you do not default automatically to legal process, but consider the individuals in your care on their own merit.
QCS provides a policy on consent relating to medical treatment, the content covers some of the potential pitfalls and steps to be taken to maintain rights and respect. Consider the ways you can explore capability and capacity to allow real participation of service users in their care.