Implied consent – What next?

Following on from my last post, I can understand why it may be assumed that a person who lacks capacity to consent to going into a care home is giving consent if they are not objecting. However, as we know, this is clearly not the case and this is brought into sharp focus when such a person arrives and decides they don’t want to be there after all. It is my experience that this person may well be prevented from leaving. So what we see is a case where the person apparently had capacity to consent to going in but when they ask to leave they lack capacity!! This could be within the same minute. The court case Derbyshire CC v AC, EC and LC guides us as to the relevant information that should be given to the person in order to establish if they are giving informed consent. So each time a person goes into a care home I strongly urge that consideration of consent must always made and documented and if the person lacks capacity the correct MCA processes must be applied. A quick plug: Our decision support tools address the specific issue of capacity to consent to going into care, provide guidance and produce a written report on the matter for care records.