What the ‘least restrictive option’ means under the Mental Capacity Act

When professionals talk about using the “least restrictive option” when working with service users who are deemed to lack capacity to make particular decisions, some can worry that this means letting them do whatever they want even if it puts them at risk.

This confusion makes it clear how important it is that we all work within the Mental Capacity Act 2005 (MCA). We need to start by thinking about what the person you’re supporting – let’s call him Johnny – wants to do, from wearing his Manchester United football kit when the team is playing, to looking at lorries, particularly when he is anxious. He gets worried and anxious when he needs to go to the doctor or nurse.

Unwise decisions

The MCA says that we must assume a person has capacity to make a decision unless there is some evidence that they cannot, in which case we need to assess their capacity. All staff providing care should be comfortable with assessing capacity, but remember that just because someone makes a decision that others think is unwise, it doesn’t mean that they lack capacity – we all sometimes do unwise things even when we have capacity!

Most of the MCA isn’t new and simply puts what was existing best practice into law. And it makes assessing a person’s capacity much simpler than it often seemed to be in the past. Capacity is what’s called “decision-specific and time-specific”: can the person make this decision at the time it needs to be made? (See the MCA code of practice, chapter 4, for more information on how to assess capacity.)

Support to make decisions

The law also says that we must do everything possible to enhance an individual’s ability to make their own decisions. In Johnny’s case, his ability to make some decisions can be significantly improved: his family can give staff lots of tips to help them understand how to do this, and also help them to recognise what makes him too anxious to be able to listen properly. Staff have learned to give him as much time as possible to make big or anxiety-producing decisions, and to repeat information in different ways, for example, by using pictures.

So for little decisions, such as wearing his football strip, there is no reason to think that Johnny lacks capacity: he wears it when his team is playing. Even if he didn’t have capacity there is no risk associated with this choice, so it should be respected and praised: it’s good to make choices, and he is doing so.

Johnny’s family have warned his support workers that when he is particularly anxious, he will try to go to major roads to look at lorries: he has been brought back from the
motorway hard shoulder on several occasions.

Assessing capacity

Staff who support Johnny need to assess his capacity to understand the risk of walking on the motorway. Maybe he cannot, for example, remember that the traffic goes really fast and may come on to the hard shoulder, or he can remember this information but he can’t use it to decide not to go to the motorway.

If they decide he lacks capacity to make this decision safely, then they must make a decision in Johnny’s best interests about how to plan for when he might want to go to the motorway.

This is where the search for the “least restrictive option” comes in. It would be completely wrong to say, ‘it’s Johnny’s choice to go and wander along the motorway so we must let him go’. But we must not restrict his freedoms more than is absolutely necessary. It would be far too restrictive, and not proportionate to the risk of harm, to lock him in the house and deny him access to the outdoors because there is a risk that sometimes he will run after lorries.

The least restrictive option

Everything you do that might restrict a person’s freedom of action must be the least restrictive option that will meet the need – it’s not just about letting a vulnerable
person do whatever they want, it is about keeping them safe while restricting their rights and freedoms as little as is possible.

If it’s possible, part of making the best interests decision might be to ask Johnny when he’s calm what he would like staff to do when he gets anxious; part of it is to consult his family to find out more about what might trigger this anxiety, and how best to respond (see the MCA code of practice, chapter 5, for more about best interests decision-making). 

Perhaps Johnny’s care plan could have regular “look at lorries safely” time built into his walks with staff; he could have a scrapbook of lorries, or collect model ones. The search for the least restrictive way to meet a need can uncover amazing creativity, not only among staff but among service users and their families. And the delight of finding an imaginative solution that keeps a person safe while respecting their rights is one of the real joys of working in adult social care.

 Rachel Griffiths is Mental Capacity Act development manager at the Social Care Institute for Excellence.

Further resources

Related articles

How Mental Capacity Act responsibilities go beyond ‘duty of care’  

Top resources on the Mental Capacity Act 

Where social workers are going wrong on the Mental Capacity Act 

Guide to councils’ new deprivation of liberty safeguard duties in hospitals