Informed Consent and Intermediary Assessments

What is informed consent? 

Informed consent is an important principle used in lots of different contexts. You will most likely have heard this term used in healthcare and legal settings. 

Informed consent means that an individual has all of the skills and information they need to make and communicate a clear decision. 

In order to provide informed consent, the individual must be able to: 

• Understand key information about the decision they are making 
  
  
• Understand the possible outcomes or impacts of the decision 
  
  
• Demonstrate they have understood their decision and its possible outcomes 
  
  
• Remember the key information
  
  
• Use this ‘stored knowledge’ to weigh up options and reach a reasoned conclusion.  

Informed consent in intermediary assessments 

Gaining informed consent from court users to conduct an intermediary assessment is an important part of our practice.  

During an intermediary assessment, the assessor is likely to gather and report on personal and identifiable information about the individual. It is therefore important that they understand why this information is being gathered, how it will be used and who it will be shared with. 

It is also important that the individual understands the possible outcomes of the assessment, particularly that: 

• The report will be shared with the Judge and other parties in the case 

• The information it contains can only be used to make decisions about the type of support they will receive during proceedings.  

Taking time to check informed consent in an intermediary assessment ensures that the individual is fully informed and can make their own decision about whether they want to be assessed (or even whether they would like help from an intermediary). 

In addition, this step can help to build a trusting relationship between the individual and the assessor from the outset and support a better working rapport. Ensuring an individual feels that participation is their decision (not that of their legal team or the Courts) can improve engagement in the assessment, and indeed at any future intermediary attendances during proceedings. 

All of the above factors can result in better assessments, providing the Court with more accurate and insightful reporting on any observed communication needs and any measures required to support participation.

How we support and check informed consent 

At the outset of any intermediary assessment, the assessor will explore what the individual already knows about the purpose of the assessment and the role of an intermediary. They will then seek to ‘fill’ any gaps in the individual’s knowledge about the purpose and possible outcomes of the assessment.  

After providing the above information in simple terms, the intermediary will check the individual’s understanding, typically by asking them to explain key points in their own words. 

There are many reasons why an individual may have difficulty demonstrating informed consent at this stage. For example, they may have difficulty putting their understanding into words, or they may have difficulty retaining verbal information (especially when feeling anxious at the start of a meeting with a new professional).  

Difficulties gaining informed consent 

If the person is not able to demonstrate informed consent initially, intermediaries will do all they can to support the individual to attend to, process, retain and explain key information, in order to ensure they can make an informed decision. 

This may involve using visual aids to make important details more ‘visible’ and easier to retain and process. Or it may mean asking shorter, more focused questions about the key points, to help someone express their understanding. The strategies used at this stage will be person-centered, and respond to the difficulties the individual presents with. 

Intermediaries will take considerable time to gain informed consent, using all available strategies to ensure the individual can make an informed decision about participating in the intermediary assessment.  

If all strategies have been exhausted and the individual remains unable to demonstrate that they have understood and retained the purpose of the assessment, the role of an intermediary, and the possible outcomes of the assessment, the assessment will not be completed. The intermediary will write a summary of the meeting, which can be requested by legal teams or the Court, if required. Please contact admin@communicourt.co.uk to request access to a terminated assessment summary.  

If the individual has required a great deal of support to provide informed consent at the outset, and particularly if they have demonstrated difficulty retaining key information, the intermediary will continue to check that they are still able to provide informed consent throughout the assessment process.  

Compliance vs. consent

Intermediaries take care to determine whether the person they are working with is consenting or simply complying (going along with something they don’t want to do because they feel they ‘have to’). This can be a particular issue in legal proceedings, where individuals must follow court orders. It can also be a particular issue for individuals with diagnoses such as learning disability, who may be especially agreeable and likely to comply with requests, without a full understanding.   

It is important that individuals understand that they have a right to say ‘yes’ or ‘no’ to an intermediary assessment, and that it is their decision to make. This not only ensures the process is fair, it also helps ensure that assessments are as thorough and detailed as possible.  

For example, if an individual is complying rather than consenting, they may give one-word or short answers to questions, may attempt to mask difficulties, or may not undertake tasks to the best of their ability. In this case, the assessment is unlikely to be an accurate reflection of their abilities and needs, and what support (if any is required) will aid their participation in proceedings.

Further assessments 

Further assessment may be suggested or recommended for an individual who has declined to participate in an intermediary assessment, or has not been able to demonstrate informed consent. Presentation and engagement can fluctuate, and understanding can improve, for many different reasons. On a different day, after sleeping well and taking medication, for example, an individual may be able to attend well to explanations and express their understanding of key points clearly, when this was not possible on a different day. 

A person may also require extra time to consider whether they wish to participate in an intermediary assessment, for a range of reasons. For example, it can be difficult for some people involved in legal proceedings to trust an unfamiliar professional. They may not feel confident that information about their difficulties will not be used against them. They may want to talk about it with trusted friends or family members, or may wish for information about the remit of the assessment to be confirmed by their own legal representative.  

This intermediary assessment explainer contains many of the key points an individual will need to know in order to give informed consent to an intermediary assessment. It can be a useful tool to share with clients in advance of assessments, or following a terminated assessment in which they did not consent, or could not give informed consent.