Care Principles Made Simple – Part 7 of 10
Mental capacity and consent often appear together in care policies, training and assessments. The language can sound complicated, but both ideas are built around a simple principle:
People should remain in control of decisions about their own lives whenever they are able to decide.
Care workers must not assume that someone cannot make a decision because they are older, have dementia, live with a learning disability or communicate differently.
An everyday decision about care
Mr Lewis has dementia and receives support with washing and dressing.
One morning, his care worker says:
“Let’s get you into the shower now.”
Mr Lewis replies:
“No. I’m not having a shower.”
The worker knows that personal care is included in his care plan and considers continuing despite his refusal. After all, Mr Lewis has dementia and may not understand why washing is important.
But this would be the wrong starting point.
Having dementia does not automatically mean that Mr Lewis lacks capacity to decide whether to have a shower that morning. His refusal should be taken seriously.
The worker should pause, explain the options and try to understand why he has said no.
Mr Lewis may be cold, tired, embarrassed or simply prefer to wash later. He might agree to a strip wash or choose to shower after breakfast.
Supporting him to decide is better than immediately trying to make the decision for him.
What mental capacity means
Mental capacity is the ability to make a particular decision at the time it needs to be made.
The Mental Capacity Act 2005 applies in England and Wales and provides the legal framework for supporting people aged 16 and over who may be unable to make some decisions for themselves.
Capacity is both decision-specific and time-specific.
Someone might be able to decide:
- What to wear
- What to eat
- Whether to have a shower
- Who they want to visit
- How they want to spend their afternoon
The same person might struggle to understand a more complicated decision about medical treatment, finances or where to live.
A person may also lack capacity temporarily because of unconsciousness, severe illness, intoxication, medication, extreme distress or sudden confusion. They may be able to make the decision later when their condition improves.
There is no single label of “has capacity” or “does not have capacity” that applies to every decision forever.
The five principles without the jargon
The Mental Capacity Act is based on five statutory principles. These should guide how care workers approach decisions.
1. Assume the person has capacity
Begin by believing that the person can make the decision.
Do not assume otherwise because of:
- Age
- Appearance
- Diagnosis
- Disability
- Communication difficulty
- Behaviour
- Previous decisions
- Where the person lives
Dementia, a brain injury, a learning disability or a mental health condition may affect capacity, but none automatically proves that capacity is absent.
2. Provide support before deciding they cannot choose
People must receive practical help to understand and make the decision.
This might involve:
- Using plain language
- Breaking information into smaller steps
- Showing pictures or objects
- Offering communication aids
- Checking hearing aids or glasses
- Using an interpreter
- Reducing noise and distractions
- Allowing more time
- Trying at a better time of day
- Asking someone trusted to support communication
- Explaining the choices again
A rushed explanation followed by “They don’t understand” is not enough.
3. People may make decisions others consider unwise
Having capacity includes the right to make choices that other people would not make.
Someone might choose:
- Clothes that do not match
- A meal others consider unhealthy
- To spend their money in an unusual way
- To refuse an activity
- To continue a friendship others dislike
- To take a reasonable risk
An unwise decision does not, by itself, prove that someone lacks capacity.
Care workers can explain concerns and offer safer options, but personal disagreement is not a capacity assessment.
4. Decisions made for someone must be in their best interests
If an appropriate assessment finds that a person lacks capacity for a particular decision, anything decided on their behalf must be in their best interests.
Best interests do not simply mean what is easiest for staff or what a relative prefers.
The decision-making process should consider:
- The person’s past and present wishes
- Their beliefs and values
- What they would be likely to choose
- The available options
- The possible benefits and risks
- Whether the decision can wait
- Views from appropriate relatives, carers or advocates
- Any valid advance decision or authorised decision-maker
- How the person can remain involved
5. Choose the least restrictive option
Any action taken for someone who lacks capacity should interfere as little as possible with their rights and freedom.
Before restricting someone, ask whether there is a safer and less restrictive way to meet the same need.
For example, instead of preventing someone from entering the garden because of a falls risk, consider appropriate footwear, improved lighting, a walking aid or support from another person.
The official GOV.UK guide for health and social care workers explains these principles and how they apply to everyday practice.
How capacity is assessed
A capacity assessment must relate to the exact decision that needs to be made.
The starting question is not:
“Does this person have dementia?”
It is:
“Can this person make this particular decision at this time, after receiving appropriate support?”
The assessment considers whether there is an impairment or disturbance affecting the functioning of the person’s mind or brain. It then considers whether that impairment means the person is unable to make the particular decision.
A person is unable to make the decision if, after receiving appropriate support, they cannot do one or more of the following:
- Understand the relevant information
- Retain it long enough to decide
- Use or weigh the information when deciding
- Communicate their decision by any method
Communication does not have to involve speech. A person might communicate through writing, signing, gestures, pictures, blinking or assistive technology.
For simple daily decisions, care workers may need to make practical capacity judgements within their role, training and employer’s procedures. More complex or serious decisions require a suitably qualified or authorised decision-maker and a properly recorded assessment.
If you are uncertain, do not make assumptions. Report your observations and ask a senior colleague for guidance.
What consent means
Consent means giving permission for something to happen.
In care, consent may be needed before:
- Providing personal care
- Helping someone to dress
- Supporting medication
- Entering a person’s room
- Sharing personal information
- Taking a photograph
- Contacting a family member
- Carrying out an examination
- Using equipment
- Supporting an activity
The NHS guidance on consent explains that valid consent must be voluntary, informed and given by someone who has capacity for the decision.
Voluntary
The person must decide freely, without pressure, threats, manipulation or unfair influence from staff, relatives or anyone else.
Informed
The person needs an understandable explanation of what is proposed, why it is being suggested and any important choices or consequences.
Capacity
The person must be able to make that specific decision at that time.
The Care Quality Commission’s Regulation 11 guidance requires care and treatment to be provided with the consent of the relevant person. Where someone lacks capacity, providers must follow the Mental Capacity Act and its Code of Practice.
Consent can take different forms
Consent may be:
- Verbal: “Yes, please help me with my coat.”
- Written: Signing an appropriate consent form
- Non-verbal: Holding out an arm after understanding that a blood-pressure check has been explained
Non-verbal behaviour should only be treated as consent when the person understands what is proposed and their actions clearly indicate agreement.
Silence, confusion, fear or simply failing to resist should not automatically be treated as consent.
Consent is also ongoing. A person who agreed yesterday may refuse today. Someone may withdraw consent during an activity, and the worker must pause and respond appropriately.
Agreeing to one action does not mean agreeing to everything.
For example, consenting to help with dressing does not automatically mean consenting to a shower, a photograph or sharing information with a relative.
Ask before touching or beginning care
A care plan does not replace the need to seek consent at the time care is provided.
Instead of beginning automatically, explain what you intend to do:
“Would you like me to help you wash your back?”
“Is it okay if I move your walking frame closer?”
“May I check your medication record?”
“Would you like support getting into your chair?”
This respects the person’s control, privacy and dignity in care.
Pay attention to both words and behaviour. If someone pulls away, becomes distressed, freezes, says “stop” or appears uncertain, pause and check what they want.
What if someone refuses care?
If a person has capacity to make the decision, their refusal must normally be respected, even when staff or relatives disagree.
Do not:
- Force the care
- Threaten the person
- Shame them
- Pretend they have agreed
- Ask repeatedly until they surrender
- Automatically describe them as “non-compliant”
- Assume the refusal proves they lack capacity
Instead:
- Stay calm.
- Ask why they do not want the care.
- Explain the purpose and available options.
- Check whether pain, fear, embarrassment or communication difficulties are involved.
- Offer an alternative time or approach.
- Respect the decision where the person has capacity.
- Record the refusal factually.
- Report significant risks or repeated concerns.
A refusal may reveal that the care plan is no longer appropriate or that support is not being offered in a person-centred way.
When capacity fluctuates
Capacity can change during the day.
Someone may understand information clearly in the morning but become tired or confused later. A person experiencing delirium, distress or the effects of medication may temporarily struggle to decide.
Where a decision is not urgent, consider whether it can wait until the person is better able to participate.
Care records may identify:
- The person’s best time for making decisions
- How information should be presented
- Communication aids they use
- People who help them understand
- Signs that their capacity may be changing
A sudden change in someone’s usual understanding, alertness or behaviour should be reported promptly because it may indicate a health concern.
What happens when someone lacks capacity?
A finding that someone lacks capacity does not mean staff can do whatever they think is best.
A proper best-interests process is required for the specific decision.
The person should remain involved as much as possible. Their wishes, feelings, culture, beliefs and previous choices still matter.
The decision-maker may also need to consult:
- Appropriate family members or friends
- Health and social care professionals
- An attorney under a valid Health and Welfare Lasting Power of Attorney
- A court-appointed deputy with relevant authority
- An Independent Mental Capacity Advocate
- Anyone named by the person to be consulted
Family members do not automatically gain authority to consent on someone’s behalf simply because the person lacks capacity.
A Property and Financial Affairs Lasting Power of Attorney does not, by itself, authorise someone to make health or personal-care decisions.
Workers should check the care plan and seek senior guidance rather than relying on a relative’s claim that they are “next of kin.”
Best interests are not personal preferences
A worker should not decide:
“I would want this, so it must be best for them.”
Best interests should be based on the individual, not the worker.
For example, if someone who lacks capacity has always followed a vegetarian diet for religious or ethical reasons, offering meat because staff believe it is more nutritious may ignore their values.
Similarly, choosing the quickest personal-care routine because the service is busy does not make it the person’s best-interests option.
Good decision-making asks:
“What matters to this person, and how can we protect their wellbeing while restricting them as little as possible?”
Consent and confidential information
Consent may also affect whether information can be shared with relatives or other people.
However, consent is not the only lawful reason for sharing information. Relevant information may sometimes need to be shared for direct care, legal requirements or safeguarding.
Our guide to confidentiality in care explains how to protect information while sharing what is necessary for safe support.
If a person may be at risk of serious harm, follow safeguarding and information-sharing procedures. Do not promise to keep dangerous situations secret.
Record decisions clearly
Records should show:
- What decision was required
- How the information was explained
- What support was provided
- How the person communicated
- Whether consent was given, refused or withdrawn
- Any signs that raised concerns about capacity
- Who was informed
- What action was taken
- When the situation should be reviewed
Avoid vague statements such as:
“Mrs King has no capacity.”
A more useful entry would identify the particular decision, observations, support offered and the authorised assessment or best-interests process that followed.
Never copy an old capacity statement into new records without checking whether it remains relevant to the current decision and time.
Returning to Mr Lewis
The care worker does not force Mr Lewis to shower.
She asks why he has refused and learns that the bathroom feels cold in the morning. She offers to warm the room and return after breakfast. She also explains that he could choose a strip wash instead.
Mr Lewis understands the options and chooses to shower later.
He did not need someone to make the decision for him. He needed time, information and a choice.
That is the Mental Capacity Act working as intended: supporting the person before taking control away.
The simplest way to remember it
When thinking about capacity and consent:
Assume the person can decide. Help them understand. Ask permission. Respect their answer.
If they may be unable to make the particular decision, follow the correct assessment and best-interests process.
Do not use a diagnosis as a shortcut. Do not confuse an unwise choice with incapacity, and do not treat a care plan as permanent consent.
The goal is not merely to complete a care task. The goal is to support the person safely while preserving as much choice, control and independence as possible.
This article provides general information about adult social care in England and the Mental Capacity Act framework for England and Wales. Workers should follow current legislation, the Mental Capacity Act Code of Practice, their employer’s policies, training and agreed ways of working. It is not a substitute for legal or professional advice.
