Consent

It is best practice to gain someone’s consent before sharing their personal information. This is regardless of whether they are a child or an adult. The person must be fully informed and competent to give consent, and must be able to do so of their own free will, without undue pressure from others. They also have the right to withdraw their consent at any time, and should be made aware of this.

Specific guidance exists for gaining consent to share personal information relating to a child (aged under 18). Please see below for further information.

Cases where you do not need to gain consent

Under certain circumstances it may not be safe or appropriate to gain consent. You do not need to gain someone’s consent (in the case of a child, their own consent and/or parental consent) if any of the following apply:

  • if someone has been hurt and information needs to be shared quickly in order to help them
  • if there is a risk of harm to the person, or others, and seeking consent would threaten their safety
  • if the person is being threatened or coerced
  • if sharing information could prevent a crime from being committed, prejudice a criminal investigation, or prevent someone from being caught or questioned in relation to a crime
  • if the person’s capacity to give consent is in doubt. If this is the case, and they are over 16 years old, the Mental Capacity Act (2005) will apply and the person’s mental capacity will need to be assessed. Please see below for further information about the Mental Capacity Act.

If it is safe to do so, you should explain your duty to share your concerns with the person. You should also make a record of your decision to share information without their consent.

  • Consent and children

    Unless the above circumstances apply, it is best practice to gain both child and parental consent if you wish to share personal information relating to anyone under the age of 16.

    Gaining a child’s consent 

    Children have the same personal data protection rights as adults, including the right to provide consent for the sharing of their personal data. They can exercise these rights as long as they are deemed to have the competence and mental capacity to do so. You should therefore discuss your desire to share a child’s personal information with them, and seek their consent.

    Children under 12 are not generally considered competent to make decisions over consent, and there may be circumstances where a child aged between 12 and 16 is also not considered competent. Under these circumstances consent should be sought on behalf of the child from a person holding parental responsibility.

    Gaining parental consent 

    If you are concerned about a child (including those aged 12 or over who are considered competent)  you must speak to someone with parental responsibility for the child before sharing their personal information.  Parental consent is not a prerequisite for sharing personal information about a child. However, a lack of parental consent can significantly impact the effectiveness of support services’ responses.

    These guidelines apply in most cases. You are not required to gain parental consent if specific child protection needs have been identified or if asking for parental consent would put the child at risk of harm or distress. Please see above for further information about situations where you do not need to gain child or parental consent.

  • The Mental Capacity Act (2005)

    If you have reasonable belief that someone lacks the capacity to make decisions about the sharing of their personal information, the grounds for this conclusion must be properly explored and recorded, with a ‘best interest’ decision made in line with the Act.

    If you need to make a ‘best interest’ decision, please refer to the best interest guidance developed by the Devon Safeguarding Adults Board.

    For further guidance please refer to the Mental Capacity Act Code of Practice (2005) and the advice listed on the Devon Safeguarding Adults Board website.

    Please note that the Mental Capacity Act applies to people over the age of 16.

  • What should I do if someone is reluctant to give consent?

    What if someone is reluctant to give consent?

    Explain the benefits of sharing information – could it enable them to access help and support?

    Discuss the consequences of not sharing information – could it result in someone being harmed?

    Reassure them that their information will not be shared with anyone who does not need to know.

    Reassure them that they are not alone and that support is available to them.

    What if, after discussing these points, someone is still unwilling to give consent?

    Unless circumstances dictate that you do not need to gain their consent (see above), you must respect their wishes.

  • What should I do if I suspect that someone is being exploited and that this is impacting on their ability to provide consent?

    Perpetrators of exploitation exert power, coercion and control over others. This can influence someone’s freedom and capacity to decide whether to tell others about their situation, and whether to allow someone to make a safeguarding referral on their behalf.

    People in an exploitative situation may be at high risk of further harm. You may feel that speaking to them about their situation or asking them to provide consent for a safeguarding referral would put them, or those around them, in danger.

    If you feel that someone is being exploited, or is at high risk of exploitation, and you are unable to gain their consent you should still consider making a safeguarding referral.

    For further guidance please follow this link to some useful case studies about exploitation and consent