Consent in Home Care: CQC Regulation 11 Guide

Consent is the person's permission for the care they receive. In England, Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 makes it a legal requirement for every provider the Care Quality Commission regulates, including a registered home care agency.

A domiciliary agency meets that requirement in a way a hospital or a care home does not. The care happens in the person's own home, usually with one carer present, on a schedule that repeats several times a day. Consent is asked for, given or refused at the door, at the bathroom and at the medicines, and the office often only learns about it from the visit record.

This guide follows the regulation and CQC's guidance on Regulation 11. It covers England only. Agencies registered in Scotland, Wales or Northern Ireland work under their own regulators, set out in home care compliance in the four UK nations. Use your own legal advice for a specific case.

What Regulation 11 says

The regulation is short. Paragraph (1) says care and treatment of service users must only be provided with the consent of the relevant person. The rest sets out the exceptions and how they work:

• If the service user is 16 or over and is unable to give consent because they lack capacity to do so, the registered person must act in accordance with the Mental Capacity Act 2005.
• If Part 4 or 4A of the Mental Health Act 1983 applies to the service user, the registered person must act in accordance with that Act.
• Nothing in the regulation affects the operation of section 5 of the Mental Capacity Act, read with section 6, which covers acts in connection with care or treatment.

CQC states the intention plainly: everyone using the service, and those lawfully acting on their behalf, should have given consent before any care or treatment is provided. Providers must obtain consent lawfully, and the person who asks for it must have the knowledge and understanding of the care they are asking about.

CQC also says it can prosecute for a breach of this regulation, or part of it, and can move directly to prosecution without first serving a Warning Notice. It must refuse registration if a provider cannot satisfy it that it can and will continue to comply.

Consent is a process, not a signature

The guidance that sits under paragraph (1) is the part a home care agency works with day to day. CQC says:

• Information about the proposed care must be given in a way the person can understand, including the risks, complications and any alternatives. Someone who understands the care should give it, so they can answer questions.
• Conversations about consent must meet the person's communication needs. That may mean different formats or languages, and may involve others such as a speech and language therapist or an independent advocate.
• Consent may be implied and can be non-verbal. CQC's own examples include someone offering their hand when asked if they would like help to move.
• Consent must be treated as a process that continues throughout the care, recognising that it may be withheld or withdrawn at any time.
• Consent procedures must make sure people are not pressured into giving consent. Where possible, plans should be made well in advance so there is time to answer questions and provide information.
• Policies and procedures for obtaining consent must reflect current legislation and guidance, and staff must follow them at all times.

The NHS page on consent to treatment describes valid consent in three parts: it must be voluntary, informed, and given by someone with the capacity to make the decision. It is written about medical treatment, but the same three tests are a useful way to check a care conversation.

For an agency, the practical consequence is that a signature on the care plan at the first assessment is the start of the record, not the end of it. The person agreed to a plan. Whether they agree to a wash this morning is asked again this morning.

When someone refuses or withdraws consent

CQC's guidance says that when a person using the service, or someone acting lawfully on their behalf, refuses to give consent or withdraws it, all people providing care and treatment must respect this.

The guidance also recognises a tension. CQC says that acting strictly in accordance with consent will, in some cases, mean that other regulations cannot be met, and gives nutrition and person-centred care as examples. It then adds that providers must not provide unsafe or inappropriate care just because someone has consented to care that would be unsafe.

In a home care setting that usually shows up as a declined task: a meal, a medicine, a shower, a pressure-area check. CQC's guidance does not set out a call-by-call procedure, so the steps below are a suggested policy outline rather than a requirement:

• The carer respects the refusal, and does not try to persuade the person beyond explaining what the task is for.
• The carer records what was offered, what was declined, and anything the person said about why.
• The carer tells the office, using a route the procedure names, if the refusal could leave a risk, or if it is a change from what the person usually wants.
• The office decides whether the care plan, a risk assessment, a health professional or the person's representative needs to be involved.

If refusing care puts the person at risk of harm, or there is any sign that they are being pressured by someone else, that may also be a safeguarding concern.

When the person may lack capacity

Regulation 11 hands this to the Mental Capacity Act 2005. Section 1 of the Act sets out its principles:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
4. An act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
5. Before the act is done or the decision is made, regard must be had to whether the purpose can be achieved as effectively in a way that is less restrictive of the person's rights and freedom of action.

The third principle matters on a care call. A person who declines a meal or a wash is not, by that alone, showing a lack of capacity. Capacity is about a particular decision at a particular time.

Where an adult does lack capacity for a decision, section 4 sets out how to work out their best interests, and section 5 covers acts done in connection with their care or treatment. The Mental Capacity Act Code of Practice explains how the Act works in practice.

CQC's guidance on paragraphs (2) to (5) says providers must make sure staff who obtain consent are familiar with the principles and codes of conduct of the Mental Capacity Act 2005, and can apply them when appropriate for any of the people they care for. That is a training expectation as much as a policy one. It sits alongside the wider requirements in mandatory training for care workers.

What to have in place

Read against the regulation and the guidance above, a home care agency's consent arrangements usually need:

• A consent policy and procedure that reflect current legislation and guidance, as CQC requires, and that staff actually follow.
• A record of the person's agreement to their care plan, and of who explained it to them and how, including any communication support used.
• A clear note where the person, rather than the agency, manages something, so carers know what they are and are not being asked to do.
• A way for carers to record a refusal on the visit and to raise it with the office the same day when it matters.
• Review points where consent to the plan is checked again, for example when the plan changes or after a hospital stay.
• Mental Capacity Act training so staff who ask for consent can apply the Act's principles, as CQC's guidance expects.
• A note of anyone with legal authority to make decisions for the person, such as a lasting power of attorney, and which decisions it covers.

NICE's guideline on people's experience in adult social care services is a useful companion for the wider point behind consent: that people using care and support should be involved in decisions about it.

Where software helps, and where it does not

Consent is a conversation between people. Software cannot ask for it, judge capacity or decide what is in someone's best interests.

What it can do is keep the record in one place. Care plans in HomecareOS are written in sections with their own review dates, every change is timestamped and attributed, and documents such as ReSPECT forms can be filed on the plan and shown to carers during a visit. Carers record what happened on each task at the visit itself. That is a description of the product on its features page. The consent decisions, and the policy behind them, remain with the registered manager. If you are weighing up systems, our guide to care planning software in the UK covers what else to look for.

To see how a plan and a visit record look together, book a short demo or call 01905 674704.

Sources

• Regulation 11, Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, for the text of the regulation.
• Regulation 11: Need for consent, Care Quality Commission, for the intention of the regulation, the guidance on 11(1) and 11(2) to 11(5), and CQC's enforcement and registration position.
• Consent to treatment, NHS, for the three parts of valid consent.
• Section 1, section 4 and section 5, Mental Capacity Act 2005, for the principles, best interests and acts in connection with care or treatment.
• Mental Capacity Act Code of Practice, GOV.UK, for how the Act works in practice.
• People's experience in adult social care services (NG86), NICE.
• Digital care plans and reviews, for how HomecareOS holds a care plan and its documents. That page describes the product.