Mental Capacity Act: Consent for marketing images

Hallmark Care Homes – Head Shots

Julie Rayner, Care, Quality, governance and compliance director, explains Hallmark Care Homes’ Mental Capacity Act (MCA) Code of Practice on using resident images in marketing materials.

The MCA 2005 is a ‘hot’ topic within the care sector at the moment, as it has become clear that not everyone understands the content of the Act or the implication of lost capacity. However, it is important to note that certain aspects of the Act are open to interpretation, such as consent for inclusion in marketing activities. We have recently implemented a policy that ensures that residents provide their informed consent for their image to be used. This is because we strongly believe that residents have a fundamental legal and ethical right to determine what happens to them, including use of their photograph.

Historically within the adult social care sector, it has been acceptable practice for resident’s photographs to be taken whilst they have been enjoying activities and for these photographs to be used in marketing material to promote the homes. It may have been that the resident has consented to these photographs being used, or their family member may have consented on their behalf. However, the taking of photographs of vulnerable people who cannot provide informed consent is now considered to be unethical and could be considered exploitative if the images are used primarily for marketing reasons.

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The MCA 2005 has introduced a legal framework in which a third party can be granted the power to make decisions on another’s behalf (Lasting Power of Attorney for health and welfare and/or property and finance). For the purposes of our policy, consent is defined as the ability for the resident to agree to have their photograph taken or to be involved in a video recording that could later be used within a range of our marketing activities. This could be inclusion in a newspaper article, on social media or within an advertising feature.

For consent to be valid, under the MCA guidelines the resident must:  be competent to take the particular decision, understand information relevant to the decision and be able to retain that information.  Moreover, they should have also received sufficient information to take the decision, not be acting under duress and be able to communicate their decision.

To support our policy, specific consent forms have been developed for capturing resident’s consent for inclusion in marketing activities. These forms will be filled out upon admission and reviewed by the general manager should the resident appear to lose capacity to consent. In order to implement our policy, all team members (including members of the marketing team) will continue to be made aware of this policy via team meetings. The policy will also form part of the Hallmark Mental Capacity/DoLS training and be discussed with residents and relatives at their regular forums.

As we care for vulnerable adults, Hallmark Care Homes has a responsibility to inform and educate others regarding the MCA and determine what actions we perform, we can and cannot consider to be in our residents best interests. Only by making people aware of this ethical conundrum can we help to secure a future for the care sector, where the integrity and the care of each resident is held above all else.

If you have any questions regarding Hallmark’s consent for inclusion in marketing activities policy, please contact Julie Rayner directly at Julie.Rayner@HallmarkCareHomes.co.uk

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