Consent and mandated clients

Informed consent is a human right. But honouring it for clients who are mandated by a court or statutory agency can be a challenge. We look here at how your organisational policy on informed consent can be helpful.  

Is this you?

Your organisation has a policy on consent. It has never been an issue because you have always worked with voluntary clients.

But things have changed.

You are now funded to deliver a response to offending, family violence or other problem that used to be dealt with by formal statutory or court intervention. The alternative for the client, as the context for their engagement with you, was a formal or worse intervention (eg conviction, or prison).

What does this mean for your organisational policy on consent?

In these circumstances, consent is undoubtedly compromised. Yet you are required by the Social Services Accreditation Standards and Public Health and Disability Standards to have policy and procedures to ensure all clients (whether mandated or not) exercise their right to informed consent.

So what should your organisation’s policy provide and is there potential for it to help transform an involuntary and unequal situation into more of a voluntary one?  YES. A good informed consent policy can help guide empowering practice and authentic engagement with clients.  Here’s what we see as some key elements of this type of policy.

Consent is a process

Your policy needs to recognise that there are multiple points in the relationship with a client where consent can be sought. Each of these points offers the client the chance to re-assert their rights to autonomy and make decisions for themselves; to help equalise the situation.

While a person should be asked to consent when they enter a service, this should not be with carte blanche effect. It should only mark the beginning of the consent process. Your policy should require that consent is sought at every key point of involvement with the client. It should be supported and reinforced by other policies addressing client/whānau rights to participate and person/whānau centred responses.

Culture matters 

In the Anglo world, certainly in the liberal western tradition of thought, consent is seen in individualistic terms. But that’s just one perspective. Both the significance and process of giving consent can vary cross-culturally and this needs to be recognised in your policy. Important policy requirements include accessing cultural advice and asking the client about their expectations for giving consent.  Where collective cultural values are important, the consent process may need to allow for time and the participation of whānau and others.

Be real

Acknowledging the constraints on a client’s choices is important. It’s essential for building an open and honest relationship with a client/whānau. It’s integral to empowering the client within the consent process.

A consent policy should therefore require kōrero with the client about the reasons and conditions of the referral and consequences of non-compliance with those conditions.  And don’t forget to cover your agency’s role and responsibilities.

You must explain to the person ordered to attend a Family Violence Perpetrator programme or a young person attending your service as part of their Supervision with Activity order that your agency will have to report to the court/Oranga Tamariki if they don’t comply with the terms of service and likelihood of a court-imposed sanction.

Inform, inform

The Health and Disability and Social Services Accreditation Standards require informed consent. This means providing the full raft of information that a client needs to make their decisions and giving accurate and balanced information. Options should be canvassed and the consequences of giving or refusing consent (e.g risks, benefits, costs). The client should be encouraged to ask questions on the basis there are no silly questions

We all need support

The last but probably one of the most important policy requirements is that we should assume a client will need support to give consent. We work with clients often in mental distress or dealing with conditions or circumstances that can diminish their capacity to make decisions and give informed consent.

We should assume support will be needed unless there are grounds to show otherwise. What the support involves will depend on the client. It could range from whānau, communicative assistance, use of an Easy Read translation or linking a person to an advocate eg Health and disability advocate, Disability organisation, VOYCE for a young person in care or legal guardian.

Conclusion

We can’t avoid or shy away from the reality that we are often working with clients in coercive contexts. But there are still many opportunities for a client to exercise choice about engaging with your service.

Yes, engagement is about manaakitanga and skilled work. It’s also about respecting and supporting a person to make their own decisions and give or not give consent in an informed way.

Your Informed Consent policy is important not just to comply with accreditation standards but because it supports client empowerment and authentic and transformative relationships with clients.