Safeguarding disabled children guidance

If children are competent and able to give consent for themselves, you should seek consent directly from them.

You should aim to be involving the people who have parental responsibility for a child in decision-making from the start unless this in itself would be a safeguarding risk. You will need to explain this to the child.

Where a child is worried about sharing information with their parent or carer, or is telling you that you cannot, it is important to explore why and when you are able, allow them some space to consider the situation. Dependent on the age of the child you may make the decision to involve a parent or carer, whilst acknowledging the child's worry about this.

These decisions can be tricky, and you need to keep in mind that you cannot breach a child's right to confidentiality. You do not need to make these decisions on your own - you can seek some management and legal advice to help make the decision.   

You should never automatically assume that a child with learning disabilities is not competent to make their own decisions; many children will be competent if information is presented in an appropriate way and they are supported through the decision-making process: Think about the tools that will support them and support you. Think about advocacy and how this could help a child give their views.  

In England and Wales, the starting point in assessing whether a young person is able to make decisions about all aspects of their care and treatment is the Mental Capacity Act 2005.

The Mental Capacity Act starts with the premise that:  

All individuals over the age of sixteen have the capacity to make decisions for themselves, unless they can be shown to lack capacity.  

The Acts sets out a single clear test for assessing whether a person lacks capacity to make a decision at a particular time. 

The Code of Practice outlines a two-stage test of capacity: 

• does the person have an impairment of the mind or brain
• if so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made

In assessing an individual's ability to make a decision the following areas need to be explored: 

• does the person have a general understanding of what decision they need to make and why they need to make it? 
• does the person have a general understanding of the likely consequences of making, or not making, this decision? 
• is the person able to understand, retain, use and weigh up the information relevant to this decision? 
• can the person communicate their decision? (by talking, using sign language or by any other means). 

Before coming to a decision that a young person lacks capacity, appropriate steps must be taken to try and enable the young person to make the decision themselves. In circumstances when a young person lacks capacity, practitioners will be able to make decisions in relation to a young person's care and treatment, if such decisions are in the young person's best interests. 

When assessing the young person's best interests, the person providing care or treatment must consult those involved in the young person's care and anyone interested in their welfare, if it is practicable and appropriate to do so. This may include the young person's parents. As discussed above, care should be taken not to unlawfully breach the young person's right to confidentiality. 

When disagreements about the treatment, care or welfare of a young person aged sixteen or seventeen arise, the case may be heard in either the Court of Protection or the Family Courts, depending on the specifics of the case. A legal advisor will guide you here.  

Everyone working with or caring for any young person from the age of 16 whose capacity may be in doubt must comply with the Mental Capacity Act.

The CQC have published a 'myth-buster' to clarify the principles, laws and guidelines used when assessing children's ability to make decisions about their treatment, as well as the differences between Gillick competence and Fraser guidelines.

The NSPCC have published Gillick competency and Fraser guidelines to help people who work with children to balance the need to listen to children's wishes with the responsibility to keep them safe.

Competence:  

• Gillick - the principles of Gillick Competency apply to young people under 16. It is about determining a child's ability to consent. 
• Fraser - used in specific cases where deciding whether a child can consent to sexual or contraceptive health advice and treatment.  

Safeguarding duties allow professionals to override an individual's refusal of consent to share information or intervene if there is a risk of serious harm, abuse, or neglect, particularly regarding children.