Mental Capacity Act and consent for inclusion in care provider marketing activities


Julie Rayner, Care, Quality, Governance and Compliance Director at Hallmark Care Homes talks about the Mental Capacity Act and consent for inclusion in marketing activities.

Julie has over 20 years’ experience working for the National Care Standards Commission, the Health Care Commission and CQC and as an Inspector, Area Manager and a Compliance Manager.

The Mental Capacity Act 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. In line with the MCA Code of Practice at Hallmark Care Homes, we have recently implemented a policy that ensures that residents provide their informed consent for their image to be used in marketing materials. This is because we strongly believe that residents have a fundamental legal and ethical right to determine what happens to them and this includes when and how photographic images of them will be used.


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.


The Mental Capacity Act 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). However, the fact of holding a Lasting Power of Attorney in respect of another does not remove the expectation that the Attorney will act in the person’s best interest.


According to the MCA, consent is usually defined as a person’s agreement for a health care professional or care giver to provide care or treatment. However, 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.


This being said, there is nothing in our policy that would stop relatives taking photographs of their family member or for photographs taken as part of a social activity being displayed within a resident’s own room or on a memory board that is retained within the home. This is because the image is not considered to be in the public domain. Also, if a picture is being taken of a residents wound or injury, because this image is not intended for public use and it can be argued that the picture is being taken in our residents best interests, this is not considered to be exploitative or unethical.


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.



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