What do educational psychologists consider to be best practice when gaining consent across the 0 to 25 age range?

ABSTRACT

Educational psychologists (EPs) have a legal and ethical obligation to gain informed consent prior to any psychological involvement. As EPs work across the 0 to 25 age range, the person giving consent may vary according to the needs of the individual service user and so it is necessary to be aware of relevant legislation and case law. This study explored what might be considered best practice for EPs in gaining consent across the 0 to 25 age range by conducting semi-structured interviews with six professionals as part of an expert reference group. The interviews were thematically analysed using a hybrid inductive-deductive approach. Six main themes were identified: ethical obligations; children’s rights; legal obligations; partnership; informed consent; and, barriers to best practice. There was considerable overlap between some of the main themes, reflecting the complexity of the issue. The findings are discussed in relation to literature in other areas of psychological practice. Implications for practice for individual EPs and EP services are considered, such as the possibility of developing a guidance document for use across the profession, as well as directions for further research.

KEYWORDS:

• Consent
• assent
• Gillick competence
• mental capacity
• UK GDPR
• children’s rights

Introduction

Educational psychologists (EPs) practising in the UK are required to be registered with the Health and Care Professions Council (HCPC) and to practise according to a set of Standards of Proficiency (Health and Care Professions Council, 2023) and Standards of Conduct, Performance and Ethics (Health and Care Professions Council, 2016). The British Psychological Society (BPS) also has a set of standards that psychologists must meet (British Psychological Society, 2017): these standards require EPs to obtain appropriate informed consent for all psychological work.

The Special Educational Needs Code of Practice (SENDCoP) (Department for Education, & Department of Health, 2015) led to the work of EPs being extended to cover children and young people (CYP) up to the age of 25. Working across this age range means that, in some cases, consent will be given by the young person themselves, and in others, consent may be given on their behalf by someone else. This varies, not simply by age, but by level of competence and mental capacity. Additionally, new data protection legislation (European Union, 2018) came into force in 2018, which impacts the way that EPs gather, store and use data from service users. This legislation, now known as UK GDPR, has been enshrined into UK law following the UK’s exit from the European Union.

Whilst there is literature available considering issues around ethical practice and consent in broader psychological and allied professional practice (for example, Drisko, 2021; Goddard et al., 2008; Martindale et al., 2009; Prendeville & Kinsella, 2022), there is a paucity of published research looking at the way EPs meet their legal and ethical obligations in obtaining consent or processing service users’ data. This preliminary study was commissioned by the Association of Educational Psychologists (AEP) to address this gap in understanding. See Table 1 for definitions of terms used in this research.

Table 1. Definitions and sources for terms used in research.

Term	Definition	Source
Consent and informed consent	Consent is a legally defined decision given by someone who is competent, who has been adequately informed (and has adequate understanding), and who is free from undue influence enabling them to make a voluntary decision. The person can provide consent themselves (provided they are competent). Otherwise, someone else who is empowered by law can provide it (e.g. a parent in the case of children). A child who is not capable of giving consent alone can still be involved in the decision-making process with others who are able, in law, to provide consent.	Medical research council and NHS Health Research Authority (2020). Principles of consent: Children and Young People - Consent and Participant information sheet preparation guidance. http://www.hra-decisiontools.org.uk/consent/principles-children.html
Assent	‘Assent is difficult to define and is used in diverse ways, e.g. compliance by a child as young as three, through to the active agreement of a young teenager etc. Assent is agreement given by a child/young person, or others who are not legally empowered to give consent. It is important to provide children/young people with information that matches their capacity when seeking assent’.	Medical research council and NHS Health Research Authority (2020). Principles of consent: Children and Young People - Consent and Participant information sheet preparation guidance. http://www.hra-decisiontools.org.uk/consent/principles-children.html
Parental responsibility	‘Parental Responsibility is defined in s 3(1) Children Act 1989 as being: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. The term ‘Parental Responsibility’ attempts to focus on the parent’s duties towards their child rather than the parent’s rights over their child. In most cases, decisions can be taken by one Parental Responsibility holder. It is not always necessary to seek the consent of another person if they have Parental Responsibility. For example, a school may only need consent from one person with Parental Responsibility to take the child on a school trip. If the other parent strongly objects, they could seek a Prohibited Steps Order from court to prevent this taking place; the court will make a determination for what they believe is in the child’s best interests. Parental responsibility protects children while they are unable to make decisions for themselves and it diminishes over time as children develop the necessary skills and understanding to exercise their own rights.	Child Law Advice (2021). Parental responsibility. https://childlawadvice.org.uk/information-pages/parental-responsibility/
Gillick Competence	The right of a child under 16 to consent to medical examination and treatment, including immunization, was decided by the House of Lords in Gillick v West Norfolk and Wisbech AHA [1986] where a mother of girls under 16 objected to Department of Health advice that allowed doctors to give contraceptive advice and treatment to children without parental consent. Their Lordships held that a child under 16 had the legal competence to consent to medical examination and treatment if they had sufficient maturity and intelligence to understand the nature and implications of that treatment. The rule in Gillick must be applied when determining whether a child under 16 has competence to consent. The aim of Gillick competence is to reflect the transition of a child to adulthood. Legal competence to make decisions is conditional on the child gradually acquiring both: Maturity That takes account of the child’s experiences and the child’s ability to manage influences on their decision making such as information, peer pressure, family pressure, fear and misgivings Intelligence That takes account of the child’s understanding, ability to weigh risk and benefit, consideration of longer term factors such as effect on family life and on such things as schooling.	Griffith (2015). What is Gillick competence? Human Vaccines & Immunotherapeutics, 12(1), 244–247. https://doi.org/10.1080/21645515.2015.1091548
Mental Capacity	Mental capacity is the ability to make decisions for yourself. People who cannot do this are said to ‘lack capacity’. This might be due to illness, injury, a learning disability, or mental health problems that affect the way their brain works. To have capacity a person must be able to: Understand the information that is relevant to the decision they want to make Retain the information long enough to be able to make the decision Weigh up the information available to make the decision Communicate their decision by any possible means, including talking, using sign language, or through simple muscle movements such as blinking an eye or squeezing a hand People should be assumed to have capacity unless there is clear evidence that shows otherwise’.	UK Government (2007). Mental Capacity Act 2005 Code of Practice. UK Government. https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

Parental responsibility, Gillick competence and mental capacity

Younger children are not considered able to consent to EP involvement due to the need to have a full understanding of what they are consenting to and the possible consequences. The Children Act (UK Government, 1989) details parental responsibility, making clear that, in the case of younger children, consent should be sought from the adults who hold parental responsibility (parent, carer or local authority in the case of looked after children) for the child to assent to any EP involvement.

Some CYP are considered able to have a full enough understanding to be able to consent to EP involvement themselves, without the need to seek permission from an adult, before they reach the age of 16. The term used in this situation is “Gillick competence” (Court of Appeal, & Civil Division, 1984) and it is usually the responsibility of the person gaining consent to determine if the young person is Gillick competent, although other services such as social care or a lawyer may be asked to determine competence in more complex cases or where there is a dispute.

Most of the literature available that relates to how Gillick competence is assessed is based in medicine, as this is where the issue first emerged into case law. There is no specific test to assess a younger person’s ability to make decisions; rather, it is a matter of professional judgement. Alderson (1992) looked at the ways in which medical professionals made determinations about children’s competence to make decisions about their own medical care. They found a range of attitudes, with some solely considering within-child factors and others looking at external factors that may influence competence in decision making. Within-child factors that some clinicians considered included intelligence and ability to understand the consequences of major surgery, usually through discussion of the decision and assessing the child’s understanding of the procedure and possible consequences. External factors that were considered included the family circumstances, such as parental expectations of responsibility. Factors related to the hospital were also considered, such as the amount of time devoted to offering choices and encouraging active participation in decision making. Alderson concludes that both internal and external factors should be considered, and that competence is not static and can be specific to certain decisions.

After the age of 16, all young people should be assumed to be able to consent to EP involvement, unless there is evidence to the contrary. Some young people in this age range may not be able to consent due to certain disabilities or impairments. In these cases, mental capacity legislation protects people in this age range (Northern Ireland Assembly, 2016; Scottish Government, 2000; UK Government, 2005).

Mental capacity legislation requires that everyone over the age of 16 should be assumed to have capacity to consent unless there is evidence to the contrary. A lack of capacity is when an individual is unable to make a specific decision. Mental capacity is domain specific, meaning that someone might have capacity to make decisions in some areas but not others. An individual might lack capacity due to a temporary or permanent impairment that impacts decision making. One of the main principles of mental capacity legislation across the UK is that individuals must be supported to be involved in decision making to the fullest extent that they are able, meaning that a person cannot be said to lack capacity if they have not had adequate support to make and communicate their decision.

Like Gillick competence, much of the literature around determining mental capacity is based in medicine, although there is also a growing body of research emerging from the field of adult social care. Bourne (2000) discusses the difficulties with translating theoretical knowledge about mental capacity into practical application. Ratcliff and Chapman (2016) discuss the complexity of assessing capacity and how many health and social care workers lack confidence in making determinations despite having extensive knowledge and training in mental capacity. These findings are relevant to the work of EPs as, whilst they may occasionally need to consider the capacity of individuals to consent to involvement, this is likely to occur infrequently and so they may have similar difficulties with confidence in making those determinations.

Data protection

As well as adhering to ethical obligations, EPs also have a legal obligation to have appropriate consent in order to collect and process the personal and special category data of any individual (UK Government, 2018). The Information Commissioner’s Office (Information Commissioner’s Office, n.d.-a; n.d.-b) distinguishes between personal data and special category personal data: the former is classified as any information that enables people to be identified, either directly (for example, name) or indirectly (for example, address); the latter is classified as sensitive personal data, such as race or ethnic origin, physical or mental health conditions, or criminal convictions that may pose a risk to individuals’ fundamental rights and freedoms (UK Government, 1974, 2010) if misused (Information Commissioner’s Office, n.d.-c).

Aims and research question

The present study aimed to address the gap in knowledge about how EPs apply the various professional guidelines, legislation and case law in order to ensure their consent gaining practices meet their legal and ethical obligations. The following research question was explored:

• What might be considered best practice for EPs in obtaining informed consent across the 0 to 25 age range?

Methodology

Ethical approval

Prior to commencing this research, ethical approval was obtained through the host institution Research and Ethics committee (March 2021: 2021–11302–17923.)

Design

The study used an exploratory, in-depth qualitative survey design, using semi-structured interviews to gather the views of an expert reference group on what they feel might constitute best practice for EPs in gaining consent across the 0 to 25 age range.

Participants

The study used purposive sampling, having already identified an expert reference group of professionals with a specific interest and/or expertise on the issue of best practice for EPs in gaining informed consent. All of the participants were based in England. The expert reference group consisted of:

• A senior member of a professional body representing educational psychologists,

• A principal educational psychologist in a local authority setting,

• A trainee educational psychologist,

• A newly qualified educational psychologist,

• An educational psychologist working in a multi academy trust,

• A solicitor specialising in education law.

Data gathering

Semi-structured interviews were used to gather data from the expert reference group, to identify best practice in obtaining informed consent across the 0 to 25 age range. The interview schedule was developed around certain assumptions about consent, such as that it must be informed and can be withdrawn at any time. The questions were designed to explore what the participants felt practice should be like in order to meet those assumptions, for example “What do you think EPs can do in terms of information sharing to ensure that consent is truly informed?”

Data analysis

The data were analysed using a hybrid inductive-deductive model of thematic analysis. This hybrid model is adapted from Boyatzis (1998) and Crabtree et al. (1992) and is described in detail in Fereday and Muir-Cochrane (2006). The research question was used to generate the initial set of a priori codes, as described by Boyatzis (1998). Following this, a second set of codes was generated from the raw data, as outlined by Crabtree et al. (1999). These codes were then used to identify patterns in the data during an in-depth analysis.

The process follows six steps:

1. Developing the codebook

2. Testing the reliability of the codes

3. Summarising the data and identifying the initial themes

4. Applying the template of codes and additional coding

5. Connecting the codes and identifying themes

6. Corroborating and legitimising coded themes

Findings

Analysis of the transcripts generated a total of 53 codes from 945 references. These codes were then condensed into six themes, each with multiple sub-themes. A thematic map (Figure 1) has been used to represent these themes and sub-themes visually.

Figure 1. Thematic map showing themes and sub-themes.

Theme one: ethical obligations

Sub-theme: the need for informed consent to involvement

Participants mentioned frequently that consent, or assent, should be obtained before all involvement with CYP. It was discussed how this could take different forms and be a less formal process depending on the age and stage of development of the CYP. Participants felt that consent of the CYP should usually be sought alongside the written consent of an adult with parental responsibility.

even if they’re not [Gillick competent], I think there’s still a need to make sure they’re as informed as possible and support them to give their opinion

For younger children or those with communication needs, consent for specific activities could be determined either verbally or from non-verbal communications such as behaviour. There was also consensus that, even when a person with parental responsibility had consented to the involvement, no individual activity could be undertaken if it was likely to cause distress to the CYP involved.

I would never force myself, ethically as an EP … on any child or young person.

Sub-theme: child’s best interests

Participants discussed some scenarios that dealt with the competing obligations of requiring consent or assent for involvement, but also acting in the child’s best interests. It was accepted that there are some situations where CYP are not able to understand or make a choice about EP involvement.

sometimes, with the best will in the world, no matter how many visuals or ways I try and explain, we can never get to a time where I can explain what my role is and the long term … like what happens after that because actually, that’s beyond their scope of understanding.

Some participants also discussed how there could be times when they go against the wishes of non-Gillick competent CYP if they feel that it is in their best interests.

you can still say, “Well, no, I don’t agree with that because actually I’ve got responsibilities to look at your best interests and I don’t think that’s in your best interests”.

Sub-theme: dimensional aspects of consent

Participants discussed consent as an ongoing process, not a one-off event, that can change according to time, place and activity. All agreed that it is not enough to rely on a consent signature obtained at one point in time, but that there should be regular check ins to ensure that consent is still ongoing and to give the opportunity for consent to be withdrawn.

I try and get the consent through the formal processes, the paperwork, and then I have the consent on the day at the time because actually, they might consent to something a week ago, but they might be having a bad day, they might not want to speak to you. So, I always ask a child or young person or the adult or whoever, “Are you still happy to meet with me?”

Theme two: informed consent

Sub-theme: communication

Participants talked in detail about what informed consent looks like in practice and that it should be embedded in all aspects of casework.

I think it’s more than just a policy and a procedure, it’s about having that whole thing, that whole approach embedded within you and having the skills and the training to support it.

Participants also discussed the need to recognise non-verbal communications and be aware of when someone may be uncomfortable with what is happening in the involvement and take time to explore this, answer questions and ensure that the consent is still valid.

It’s about us using our … just our skills as humans … to know whether you want to be around somebody … so I know that’s not necessarily consent … to … the whole process of who we are and the involvement. But it is consent to … do I want to be here right now with you? Do I want to talk to you? Do I want to share those views and those feelings and those ideas?

Sub-theme: accessibility

There was consensus that privacy notices must be differentiated to meet the needs of consent givers.

the practitioner has a responsibility to … choose appropriate activities for enabling that child to speak up and express their views and opinions.

Several of the participants discussed the use of one-page profiles, which explain their role and the work they might do with the young person. These are often used for young people to support their participation.

I do have … different versions … I have one that uses Makaton symbols for more specialist provision perhaps, or Early Years or just children who use other forms of communication. I’ve got one that’s quite colourful and maybe primary focused, roughly. And then one that’s young people focused.

Sub-theme: factors affecting validity of consent

Factors that could affect the validity of consent, such as power dynamics, were raised by several participants. One participant raised this as a particular concern among some cultures or communities where professionals may be regarded as authority figures and families may feel that providing consent is their only option.

we’re culturally quite diverse, so we have a lot of families who are quite passive … if a professional tells you that your child needs this, then you just say, “Yes”.

This was also considered a possible issue when young people are consenting to involvement and may not realise that consent is optional.

there’s always a power imbalance. So, you’re an adult in a school … and I am expected to do what an adult in school says.

There was discussion around the timings of when information needed for consent is provided. It was suggested that having time to think could help to support the processing and understanding of the information.

They might … get them into the school, give them the information sheet and say, you know, briefly explain it and say, “Oh, would you mind signing the form?”

Theme three: children’s rights

Sub-theme: assent

A point that participants felt strongly about was obtaining assent, even from the youngest children or those with very limited capacity to communicate, for all activities that required their participation.

I’m with the United Nations, all children, if I can express a like and a dislike, then I can express a view about whether you’re sat in a room with me.

It was highlighted how some of the structures in place in education are not set up to encourage CYP to consider issues of consent until they are old enough to exercise their rights. Participants felt an important part of the role of the EP is not just to capture the voices and views of CYP, but to have consent processes embedded in their practice that prepare children and young people to be able to exercise their rights around consent from a very young age.

it’s not always kind of common practice, I don’t think, to involve children and young people in decision-making about anything, never mind kind of their own choices about their life.

Sub-theme: engaging CYP in the consent process

Another sub-theme suggested that best practice should see children and young people being involved in the general consent process, from the referral stage onwards, not just looking for consent or assent for individual activities that form part of the EP’s involvement.

children should be encouraged to express their views and have their thoughts and feelings taken into account from a very, very … well just right from the beginning

One participant felt that encouraging CYP to be involved in consent processes and decision making from an early age would help to prepare them for later life when they are expected to be competent and make decisions.

we expect that young people might get to sixteen or eighteen and they can look after themselves and perhaps consent and go to the doctors and all these different things, but actually we don’t prepare them for that through making small decisions even in education and just generally in their lives.

Theme four: legal obligations

Sub-theme: data protection (GDPR)

UK GDPR (UK Government, 2018) is a relatively new legal obligation and as such was not discussed as widely by the practising EPs in the expert reference group. However, it was acknowledged that there are important implications for practice and how service users’ data are processed.

whenever you’re processing data you have to comply with the principles set out under Article 5 of the GDPR and the first principle is: lawfulness, fairness and transparency. So it’s the last element of the first principle and it’s about just being able to explain what’s going to happen, be frank with the people who are engaging in the process. What is your purpose? How will I use this? Who am I potentially going to share it with outside this room?

Sub-theme: Gillick competence

All participants thought that Gillick competence was an important issue in EP practice and that young people who are Gillick competent should be given the opportunity to consent for themselves. It was agreed that Gillick competence can be difficult to assess in practice, as it does not begin at any specific age and needs to be determined on an individual basis.

this whole area, it’s not straight cut, is it? You might be meeting a young person in Year 8 say … that actually may struggle to understand what you’re explaining a lot more than somebody in Year 4 in a primary school

This individual determination of Gillick competence has its own complexities as it comes down to a professional judgement. Some services have created their own resources to document the professional justification of Gillick competence, while others have an awareness of what is required but no formal process for implementing or recording the decision-making process.

we’ve got Gillick competence checklists, … it asks whether they meet that criteria and then it asks for like a justification … or like professional opinion to backup why they think they are or are not Gillick competent.

Sub-theme: mental capacity

Participants had varying practice in terms of how mental capacity should be determined. One participant discussed following a two stage test to determine if there is a temporary or permanent difficulty that means that the service user does not have capacity to provide consent.

is there an impairment and is that through illness or it’s been induced by drugs or drink … and then … is that impairment that’s been identified … something which is impeding the ability of the individual to be able to deal with a specific issue so … .in the context of what it is that you’re doing in terms of engaging in that process of assessment for EP or for support work, it’s being able to tick that two-stage approach.

One participant highlighted the need to look at the individual service user’s accessibility needs to engage with the consent process, and not make a determination of mental capacity based on undifferentiated processes.

unless you’ve created every opportunity for that … individual to be able to … understand and subsequently express themselves in the most accessible way. [you can’t say that they don’t have capacity]

Theme five: partnership

Sub-theme: working with families

Several participants noted that they prefer to have consent from young people under 16 as well as their parents, whether they are considered Gillick competent or not. Then, if there were to be any disagreement between the young person and their parents, professionals could look to whether the young person was Gillick competent to decide whether the involvement should proceed or not.

where a child’s below sixteen, I like to try and get buy-in from both … but if the parent says no and the pupil says yes, well then we have to fall onto Gillick competence.

Some participants considered that it would be unethical for CYP to meet an EP without having any prior knowledge of their role, and what they would be doing or the chance to give their views about what they would like to gain from the involvement. It was also discussed how involving everyone together would lead to more support and consistency between home and school.

it increases the level of support for the pupil as well. So if the parents have bought in and the pupil’s bought in, you know, there’s a continuation of what’s happened in the assessment, they’ve talked to someone at home about what’s going on and that’s the best scenario.

Co-parenting issues between parents who are not currently in a relationship was discussed as one aspect that could be potentially complex. Participants discussed how they might not be able to move forward if one parent is opposed but that schools could keep an open dialogue with families to try to find an agreement that everyone supports. Some participants cited situations where it has appeared that one parent has not been given the opportunity to object if they know this is likely to happen.

I was in a meeting and mum and dad had separated and dad actually didn’t know … and he hadn’t been informed and … that was quite distressing in that … obviously it was quite a difficult situation so dad got really, really upset.

Sub-theme: working with referrers

Special Educational Needs Coordinators often request EP involvement for CYP and so are instrumental in the very early stages of the consent process. They might be the ones to explain the role of the EP, to give information about the service and to obtain consent to the referral and the sharing of data in the first instance. Therefore, having a solid foundation for the consent processes embedded in that partnership was seen as vital.

it’s included in any sort of SENCO training, so that they don’t just hand over the form and say, “Can you sign this?” But that actually they should be looking at consent issues as well

Participants also discussed partnership in terms of wider school staff. EPs often work with lots of different school staff, including class teachers and teaching assistants as well as administration staff. It was felt that best practice would involve everyone in the school being aware of the consent process so as to avoid issues such as with information being shared without consent or CYP being pressured into engaging in activities they are not comfortable with.

if we’re thinking about this as like a model of good practice or whatever then having that awareness and buy-in from senior leadership, from … you know, school staff in general, them knowing the boundaries and the issues around consent and privacy and stuff and them understanding and following that … .is so important.

Theme six: barriers

Sub-theme: complexity

One issue that participants raised that could be viewed as a potential barrier to best practice was the level of complexity involved in working with such a diverse range of service users across a wide age range. It was felt that this complexity could mean that some situations arise very rarely, leading to services being unprepared when they do occur.

you keep putting it off because you’ve not had to address it but at some point, I suspect, we will and I’m sure there are EP services who … already have … had this issue.

Another issue cited was the recent changes within the profession. First, the SENDCoP requiring EPs to work with young people up to the age of 25 and second, the introduction of UK GDPR changing the way that services collect and process service users’ information. Whilst EPs do now work with these older age groups, most of their work is still with younger children, so opportunities to become familiar with the processes and legislation for older service users may have been infrequent. Some participants thought that many services likely have one consent form, aimed at gaining consent from those with parental responsibility, that they use across the whole 0 to 25 age range.

until recently … most … the majority of young people that EPs will work with are probably under 16 and there’s a whole range of other legislation about adults and so … I think it becomes more and more significant, doesn’t it, in the sort of 16 to 25 age group … and that’s a much smaller group of children, of young people who EPs work with.

Sub-theme: uncertainty and inconsistency

Several of the participants raised the issue of feeling uncertain about how to approach some situations in relation to consent. In terms of Gillick competence, because there is no clearly defined age or test, some participants felt that it could become overwhelming for EPs to make and record a judgement.

I feel like because there is clear kind of laws and guidance when children get older about mental capacity and whether psychologists think is that our role, do we need to be really clear if we’re allowing a young person to consent, that how do we measure that they’re able to do that? And I think sometimes that’s used as a barrier to us even asking for assent because where do you record it all?

Another issue raised was around inconsistent practice between different services as well as differences in the way EPs practice even within services, particularly in the way that information is communicated.

how do we … I don’t know if advertise is the right word, but how do … what information do we share with the public about our service? And I think there’s some services who do that really well and I think there’s other services where we’re this kind of hidden entity.

One participant also discussed how colleagues in one service might disagree on some issues, particularly when it came to Gillick competent young people and whether those with parental responsibility should be kept informed against the wishes of the young person.

Personally, I would say, “Right, if you don’t want this information shared with your parents, then I won’t share it with your parents”, whereas other EPs in the team will say, ‘No, parents need to know”.

Discussion

Summary of findings

The themes that were identified during this study illustrate the complexity involved in delivering best practice when gaining consent, whereby Table 2 provides a useful summary of the ways in which consent processes and data processing should be differentiated according to age, Gillick competence and mental capacity across the 0 to 25 age range. The differentiation across stages of development of competence, the large number of relevant pieces of legislation, case law and professional standards as well as the need for partnership with others involved in the consent gaining process contribute to this complexity. This research also highlights several barriers to best practice when gaining consent, including uncertainty and inconsistency as EPs navigate this difficult area.

Table 2. Terms, definitions, and research, legislation and principles to assist assessing informed consent.

I

It was clear from the findings that the participants felt strongly about the ethical considerations around informed consent and children’s rights and participation. There was considerable overlap between these themes. Participants felt it important to maximise CYP’s involvement in the consent process as early as possible. There was some discussion of how seeking children’s views and involving them in decision making would help to prepare them for when they are able to make decisions around consent for themselves, without needing guidance from adults. These findings link with the research conducted by Alderson (1992) which found that developing competence is not a linear process that always happens in the same way and at the same time for all children. Rather, becoming Gillick competent is influenced by both within child and external factors and can be specific to different decisions. The findings of the current study suggest that best practice might be consent processes for younger children that not only empower them to be involved in decisions that affect them, but actively contribute to their development of competence to make decisions.

Informed consent itself also emerged as a theme. There was discussion about the use of materials such as leaflets, one-page profiles and videos and having these differentiated in various ways and ready to use according to the needs of different service users. Martindale et al. (2009) found that clinical psychology service users valued having information in different formats when giving informed consent, with some preferring to be given information verbally and others preferring a written format. The EPs in the expert reference group in the present study went beyond professional preference and discussed other considerations such as translating materials into different languages or including visuals or videos. Participants also felt that best practice involved being aware of power dynamics and how they can influence the validity of consent.

The legal obligations in terms of data protection were generally discussed less then ethical considerations. This could be because the most recent legislative changes (UK Government, 2018) only came into force in 2018. This relatively recent change may mean that the use and understanding of privacy notices are still developing within EP practice.

Gillick competence was the most discussed topic overall. Participants generally felt that young people should be able to consent for themselves as soon as they are determined to be competent. Best practice may involve determining at the time of referral for any secondary aged student if CYP are able to consent for themselves. Participants felt that best practice would also see adults with parental responsibility being consulted about their views regarding the referral. In the event of a disagreement, however, between CYP and those with parental responsibility, the consent of the Gillick competent young person would take precedence.

It was apparent that the participants had very little, if any, experience of determining mental capacity and discussed how some EPs or EP services may not be prepared when such determinations need to be made. Ratcliff and Chapman (2016) found that even social care workers with extensive training around mental capacity can struggle with these determinations. Due to the infrequency with which EPs are required to determine mental capacity, partnership with other professions with more expertise may contribute to best practice.

Participants frequently discussed working closely with families and referrers. They considered that training with referrers might be the best way to ensure best practice in this area, so that consent is gained from the correct person and information is shared in a timely manner in order that CYP and families have time to process and ask any questions they may have.

The fact that barriers emerged as an unexpected theme suggests that some areas of best practice are still unresolved. Some participants discussed how, whilst they felt comfortable with what they thought was best practice in gaining consent, they knew that some others in the profession might disagree. This was a particular issue with Gillick competence. All agreed that adults with parental responsibility should be involved in the consent process along with Gillick competent young people, when the young person agrees. However, whilst some participants reported that their practice allows for Gillick competent young people to have EP involvement without the knowledge of their parents, other participants felt that some EPs would be personally uncomfortable with this, even if it was the young person’s wish for their parents not to be kept informed.

There was also some discussion about inconsistency between services as well as between EPs within services in terms of the way they approach information sharing to support consent. There was concern that service users might have quite a different experience of the consent process depending on which EP with whom they worked, and that this could mean that in some cases consent is being obtained from the wrong person or that it is not properly valid or informed. These findings echo those of the recent study by Fenton (2020) that found that uncertainty and a lack of confidence among practitioners in Child and Adolescent Mental Health Services were possibly contributing to inconsistency in consent gaining practices. It’s likely that many EPs have less specific training in determining Gillick competence and the Mental Capacity Act (2007) than those working in clinical settings, so it may be that these issues are even more pronounced in the EP profession.

Limitations

The participants in this study represented different professions (Local Authority EP, Multi-academy trust EP, solicitor specialising in education law, senior member of professional body, trainee EP, Principal EP) and were based in different areas of England. This diversity of professional experience means that the findings could be somewhat applicable to the EP profession; however, the number of participants is still a small sample of the profession and so the results should be considered exploratory and any generalisations should made with caution.

The present study was also limited to gathering the views of people within the EP profession or having a specialist knowledge of the relevant legislation and case law. All of the participants were based in England and EPs working in Scotland, Wales and Northern Ireland were not represented. The study did not seek the views of those who work in partnership with EPs, such as school staff, families or young people. Seeking the views of this wider group could have developed a richer picture of best practice and possible barriers as experienced by all stakeholders, rather than just the EPs themselves.

Implications for practice

There are a number of implications for EPs’ practice from this research. The need for consent processes to be differentiated according to a number of factors, including the need to ensure that the correct person is giving consent, is essential. For consent processes to take into account the access needs of all consent givers, whether that is the CYP or an adult with parental responsibility is also necessary to ensure that consent is truly informed. Additionally, the need for decisions about consent, whether they are consenting or assenting to psychological involvement or individual activities, to be coproduced with CYP wherever possible is considered best practice. The research suggests that there is a need for further guidance and training for EPs gaining consent so that they are able to confidently navigate the complex landscape, especially when managing situations that occur less frequently. This might also take the form of regional or local policies that help EPs to ensure that the consent processes they follow are legally and ethically compliant. Another implication for EP practice is the need to collaborate with referrers to ensure that, where consent is gained on behalf of EPs, it is done so in a way that meets the same legal and ethical standards.

Directions for future research

The present study begins to address the lack of research that currently exists regarding consent gaining practices within the EP profession. The findings present some suggestions of what an expert reference group consider to be best practice for EPs in meeting ethical and legal obligations for obtaining consent across the 0 to 25 age range. The present study creates a foundation for future research.

The findings of the present study could be used to inform a professional guidance document outlining expected practice in meeting ethical and legal obligations around consent. Further research focused on the barriers to implementing best practice may give important insight and yield suggestions for helping to improve practice in this area.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by the Department for Education (DfE) ITEP award 2020-2021.