Consent – Lasting Power of Attorney – Next of Kin

We are now some years following the implementation of GDPR (General Data Protection Regulation) and the MCA (Mental Capacity Act), but there remains confusion relating to consent and access to information. Many care home staff continue to seek the validation and consent to care and treatment for those who lack capacity to consent themselves from their family members or friends that may not have legal right to give this consent and they may receive information they may not be entitled to have.


The Health and Social Care Act Regulation 11 exists to make sure that people using the service and those lawfully acting on their behalf, have given consent before any care or treatment is provided. For the population at large this is not an issue. However, for those people who lack capacity to make informed consent the Mental Capacity Act comes into play and the principals of the act must be followed.


In the first instance you must assume that a person has capacity even if they make choices which others may consider to be unwise. Where mental capacity is believed to be lacking a mental capacity assessment should be undertaken. This is not a tick box exercise and you should always document the questions and answers used to make your decision. If in any doubt, you should involve other healthcare professionals such as GP, Social Worker, and IMCA.

Mental Capacity is decision specific for example, a person may not be able to make decisions about where to live, but they can consent to all other aspects of daily living, including care and treatment, what to eat, what to wear etc.       


If there is no person with Lasting Power of Attorney able to consent for care and treatment, a best interest decision must be taken, involving medical professionals, members of the care team, social worker or local authority representative along those family members involved in the residents care. There may be opportunities to involve advocates or a independent mental capacity assessor, depending on the decision being considered. Where the decision involves where a person is to live, an independent mental capacity assessor must always be involved.


The care plan should be updated to reflect the person’s wishes or decisions taken, so that the care giver is absolutely clear what is expected. Even with a decision in place, capacity must still be assumed and people should always be asked what their choice is.

How many times have you been given a cup of tea or coffee, ‘because that’s what you always have’, and not been offered a choice?


You should also consider that a person’s capacity to make decisions may fluctuate. They may be influenced by illness, circumstances, location, what the decision relates to and the way in which it is phrased. Staff need to be mindful to present facts clearly and not lead a person into making a decision without full possession of relevant information.