3.2 The search for the least restrictive option
When professionals talk about using the ‘least restrictive option’ for cared-for people, some people think this means letting the person do whatever they want, even if it puts them at risk. The use of the least restrictive option applies only if the people you are caring for are considered to lack capacity under the Mental Capacity Act and should be used only if there is no better way to carry out the task. All people 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!
Capacity is what’s called ‘decision-specific and time-specific’: can the person make this decision at the time it needs to be made? The law says that we must do everything possible to enhance an individual’s ability to make their own decisions.
Read about Johnny and then decide in which areas of his life he needs support with decision making.
Case study: Johnny
Johnny lives in a residential home.
- He likes to wear his Manchester United kit when the team is playing.
- 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.
- Johnny gets worried and anxious when he needs to go to the doctor or nurse.
- If he gets anxious Johnny can’t listen properly, which makes it hard for him to make decisions.
How can Johnny be supported? Write your thoughts in the space below.
People who care for Johnny could look for ways to improve his ability to make some decisions. They could perhaps ask his family for some tips on how to do this.
They could also find out more about what makes Johnny anxious, and particularly too anxious to listen properly. It will probably help 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.
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.
Staff who support Johnny need to assess his capacity to understand the risk of going near major, busy roads. Maybe he cannot, for example, remember that the traffic goes really fast and may come on to the hard shoulder, or maybe he can remember this information but Johnny can’t use it to decide not to go to the motorway.
If the staff 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 and look at lorries or show how he could look at lorries in a safer way than standing on the hard shoulder.
Johnny’s interest in looking at lorries has a lot more risk attached than whether he should wear his football shirt, and 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 freedom more than is absolutely necessary. It would be far too restrictive, and not proportionate to the risk of harm, to lock Johnny in the house and deny him access to the outdoors because there is a risk that sometimes he will run after lorries.
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.
What do you think might be the least restrictive option for Johnny, and how could you make the right decision in his best interests?
The best option, if it’s possible, might be to ask Johnny when he’s calm what he would like staff to do when he gets anxious. You could also consult his family to find out more about what might trigger this anxiety, and how best to respond.
Perhaps Johnny’s care plan could have regular ‘look at lorries safely’ time built into his walks with carers; 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, and can involve the cared-for person and everyone involved in their care. The delight in finding an imaginative solution that keeps a person safe while respecting their rights is one of the real joys of providing adult social care.