This is the fifth principle in the Mental Capacity Act, and the most complicated to understand. The legislation states that "before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action". Perfectly clear! Or not!
When decisions need to be made for someone who is unable to decide for themselves the question of interfering with their rights and freedoms must be considered. If the decision has to be made to place someone in a care home this, ultimately, will impact upon their freedom to come and go as they please. A decision to use a general anaesthetic instead of a local anaesthetic impacts upon freedoms and rights. Part of the decision making process will also need to consider whether it is actually necessary to act or make a decision at all. Sometimes it is better to opt to do nothing!
When following the fifth principle it is necessary to look at all options and not just one. If it has been identified that Mr S cannot maintain his personal care and welfare needs and is not coping at home what would be the least restrictive option? Does Mr S need to go into a nursing home or a residential home? Could he have a 24 hour live in carer? Could he be well looked after with a domiciliary care team or does he need any support at all? By looking at each of these options, considering their relevance to the situation in hand and evaluating which is best, you are looking at whether anything can be done to prevent the restriction of rights and freedoms. It may be that the only option that is suitable for the circumstance is nursing care but the position has been considered and thoroughly reviewed. What the decision cannot do is prevent the original purpose of the decision or act from being achieved.
When considering the least restrictive option you cannot forget to look at what is in the best interests of the person who lacks capacity. There are occasions such as the example above where the least restrictive option is not the most suitable. The least restrictive option here would have been to either leave Mr S with no support or to provide domiciliary support to help him around the home. Neither met the best interest threshold however, to keep him safe and secure.
If you are an attorney or a deputy, or a carer or a family member it is important you understand how all principles of the Mental Capacity Act affect you in your role and the decisions you make. If you would like further advice please do not hesitate to contact us.
