I assume we are talking about consent to share/use information here. This
is something which we come across frequently in terms of Social Services
service users - both generally and in the Supporting People area (which is
probably closest linked to the original question as far as this Council is
concerned).
It depends on the capacity of the service user to consent. If that capacity
exists (though it might take a considerable amount of explaining the whys
and wherefores) then it will either be obtained or not. Hopefully, in most
cases, this will be in the service user's writing but doesn't have to be if
some sort of incapacity makes this impractical - the member of staff can
record how the consent was obtained (or not).
If the service user does not have the capacity to consent then other
avenues afforded by Schedule 2 (or 3 as appropriate) of the DPA need to be
explored. For example, para 5(b) of Schedule 2 or para 3 of Schedule 3
might be of use in a particular circumstance.
If another avenue cannot be found then can someone else give consent by
virtue of having power of attorney? In some cases it might be necessary to
go as far as involving the Court of Protection - but hopefully those would
be few and far between.
The bottom line guidance we use in training is to answer the question "What
will happen if I do share and what will happen if I don't?" - and to
carefully document the decision processes and actions taken to be able to
show that proper thought went into the matter.
You might find a flowchart on our web site useful - downloadable from
http://www.redcar-cleveland.gov.uk/YrCounc1.nsf/Web+Full+List/AD4D1221F7D4055B80256E770041D54A?OpenDocument
Regards,
Graham
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