Consent issues can be complex and a lack of clarity about them can sometimes lead practitioners to assume incorrectly that no information can be shared. This section gives further information to help you understand and address the issues.
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- What constitutes consent?
- Whose consent should be sought when the information is about a child or young person?
- When consent should not be sought
- Is there sufficient public interest to share the information?
What constitutes consent?
Consent must be 'informed'. This means that the person giving consent needs to understand why information needs to be shared, what will be shared, who will see their information, the purpose to which it will be put and the implications of sharing that information.
Consent can be 'explicit' or 'implicit'. Obtaining explicit consent for information sharing is best practice and ideally should be obtained at the start of the involvement, when working with the individual or family to agree what support is required. It can be expressed either verbally and confirmed in writing or in writing at the onset. This must be recorded
The approach to securing consent should be transparent and respect the individual. Consent must not be secured through coercion or inferred from a lack of response to a request for consent.
Whose consent should be sought when the information is about a child or young person?
You may also need to consider whose consent should be sought. Where there is a duty of confidence, it is owed to the person who has provided the information on the understanding it is to be kept confidential. It is also owed to the person to whom the information relates, if different from the information provider. A child or young person, who has the capacity to understand and make their own decisions, may give (or refuse) consent to sharing.
Children aged 12 or over may generally be expected to have sufficient understanding. Younger children may also have sufficient understanding.
The following criteria should be considered in assessing whether a particular child or young person on a particular occasion has sufficient understanding to consent, or to refuse consent, to sharing of information about them:
Can the child or young person understand the question being asked of them?
Do they have a reasonable understanding of:
- what information might be shared;
- the main reason or reasons for sharing the information; and
- the implications of sharing that information, and of not sharing it?
- appreciate and consider the alternative courses of action open to them;
- weigh up one aspect of the situation against another;
- express a clear personal view on the matter, as distinct from repeating
what someone else thinks they should do; and
- be reasonably consistent in their view on the matter, or are they constantly changing their mind?
Where parental consent is required, the consent of one such person is sufficient. In situations where family members are in conflict you will need to consider carefully whose consent should be sought. If the parents are separated, the consent would usually be sought from the parent with whom the child resides.
If you judge a child or young person to be competent to give consent, then their consent or refusal to consent is the one to consider, even if a parent or carer disagrees.
When consent should not be sought
There will be some circumstances where you should not seek consent from the individual or their family, or inform them that the information will be shared. For example, if doing so would:
- place a person (the individual, family member, yourself or a third party) at increased risk of significant harm if a child, or serious harm if an adult; or
- prejudice the prevention, detection or prosecution of a serious crime; or
- lead to an unjustified delay in making enquiries about allegations of
- significant harm to a child, or serious harm to an adult.
You should not seek consent when you are required by law to share information through a statutory duty or court order.
Is there sufficient public interest to share the information?
Even where you do not have consent to share information, you may lawfully share it if this can be justified in the public interest. Seeking consent should always be the first option. However, where consent cannot be obtained or is refused, or where seeking it is inappropriate or unsafe the question of whether there is a sufficient public interest must be judged by the practitioner on the facts of each case, and you should discuss this with your Manager.