Consent for Professionals
There are three different types of consent: informed, implicit and explicit
Types of consent
There are three different types of consent:
The individual understands the concept of consent and the implications for them of giving or withholding their consent.
If an individual wishes to access services, which requires the sharing of information between professionals in order to deliver the services, then their initial consent during the assessment process can reasonably be taken to imply that they are content for that information to be shared with other professionals in the course of delivering the services.
This is where consent has only been given in relation to specific information and/or for that information to be used for a specific purpose. It is usually concerns sensitive personal information.
Article 8 of the Human Rights Act 1998 gives everyone the right to respect for his or her private and family life, home and correspondence. This right is subject to proportionate and lawful restrictions.
Good practice when gathering or sharing personal information, is that consent should be sought whenever possible. Exceptions to this are when there are concerns that a child/young person is at risk of, or suffering significant harm, or it would impede a Police investigation. (See Exceptions section below)
When seeking consent to gather or share information, it is important to be clear
- Why the information needs to be gathered or shared;
- Who it will be shared with;
- What information will be gathered or shared;
- What will the information be used for;
- What, if any, are the consequences for the individual or their family; and
- What are the implications for the individual if they withhold their consent
Consent once given, does not expire, however it is important that consent is revisited whenever circumstances change, particularly if new information is to be sought or if the previous information given, may be shared with someone different.
Even when consent has been given, it can later be withdrawn. However, if consent is withdrawn, practitioners need to assess if there is any child/ young person in need of protection under Article 66 of The Children (NI) Order 1995, and to act accordingly. (See Exceptions section below)
Can children give their own consent?
Children have the same rights as adults and should be consulted. Their ability to give or withhold consent is not based on their age. It is more important that they have sufficient intelligence and emotional understanding to understand the concept of consent and the implications of agreeing or withholding their consent, so they can make an informed decision. The Gillick Competence and Fraser Guidelines can be used to help to decide the child or young person’s competency.
A child, who is Fraser Competent, and their parent/s may have different views about giving consent; the complexity of this situation requires management and legal advice, in order to ensure the safety and welfare of the child or young person.
It is good practice to seek consent from children and young people but there are times when their consent may not be sought, (see Exceptions section below)
- If consent is considered to be unreasonably withheld.
- If there are concerns that a child/ young person is at risk of, or actually suffering significant harm, agencies should follow their safeguarding policy and procedures when making a decision to continue to share or seek information. They should seek management and legal advice to ensure that this is a defensible decision and their reasons should be recorded.
- If there are concerns that withholding consent would impede a Police investigation, the Police will also have to make a clear, recorded defensible decision about why they would continue to share or seek information.
If consent is not sought at all
- In very exceptional circumstances, where it is felt that to seek consent from adults would place a child or young person at risk of significant harm, particularly immediate harm, then consent may not be sought, but the parent/adult should be informed as soon as it is safe to do so. Agencies should seek management and legal advice and have clear, justified recorded reasons for this decision.
- In very exceptional circumstances, it may be necessary to dispense with an child/young person's consent in order to protect them. E.g. Medical advice/treatment may not be kept confidential, if a child/young person is in the care of a HSCT or vulnerable to sexual exploitation. Again, there should be clear, justified recorded reasons for this decision.
Consent and Sexual Activity
In NI the age of consent to sexual activity is 16 years.
For the purposes of the Sexual Offences (NI) Order 2008, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice.
- It is the person seeking consent who is responsible for ensuring that consent is given.
- Consent is an on-going process, not a ‘one-off’ event.
- Consent to engage in one sexual activity does not mean consent to engage in other sexual activity.
- Consent can be both verbal and non-verbal. Sometimes the loudest ‘no’ you will hear is silence.
- Consent can be withdrawn at any time.
- Presumption can be made that consent was not given under the following circumstances, unless you can prove otherwise:
- If you use violence, or threaten immediate violence, to the other person or a third party.
- If the person was held against their will.
- If the person was asleep or unconscious.
- If the person had a physical disability which would have prevented them communicating consent.
- If any drugs were used which could have stupefied the person.