Capacity, Consent and Best Interests in Positive Behaviour Support
Positive Behaviour Support (PBS) frequently operates at the intersection of autonomy, protection and legal responsibility. Within the Human Rights, Legal Context & Ethical Decision-Making framework, and aligned with the core principles and values of PBS, decisions about capacity and consent fundamentally shape whether support is lawful, ethical and defensible.
This article examines how capacity assessments, consent and best interest decision-making are applied in real PBS delivery, and how providers evidence compliance with legal duties while maintaining person-centred practice.
Capacity as a decision-specific concept
Capacity is not a blanket status. In PBS, individuals may have capacity to make some decisions but not others, and this may fluctuate over time. Effective PBS requires staff to understand capacity as decision-specific and time-specific, rather than assuming incapacity based on diagnosis or behaviour.
Failure to assess capacity properly risks unlawful restrictions, poor ethical practice and regulatory challenge.
Operational example: capacity and consent in daily routines
In a supported living service, a person with autism frequently refused personal care, leading to increased distress and hygiene risks. Staff initially viewed refusal as non-compliance.
A capacity assessment demonstrated that the person lacked capacity to understand longer-term health consequences but could express preferences. PBS planning shifted to a best interest framework that incorporated sensory adjustments, choice of timing and trusted staff allocation.
Day-to-day delivery focused on consent-seeking approaches even within best interest decisions. Effectiveness was evidenced through reduced distress, improved engagement and consistent documentation of decision-making.
Best interest decision-making in PBS
When a person lacks capacity, PBS interventions must be grounded in best interest decision-making. This requires more than professional judgement; it demands structured consideration of the person’s wishes, feelings, beliefs and values.
Best interest decisions in PBS should be proportionate, time-limited and regularly reviewed, particularly where restrictions or intrusive interventions are involved.
Operational example: best interest decisions and community access
A person with fluctuating capacity repeatedly placed themselves at risk in the community. Restricting access entirely would have significantly reduced quality of life.
A best interest decision supported continued community access with enhanced PBS strategies, including graded exposure, staff support and risk enablement planning.
Day-to-day practice included dynamic risk assessments and reflective supervision. Effectiveness was demonstrated through maintained community access and reduced safeguarding incidents.
Commissioner expectation: lawful consent frameworks
Commissioner expectation: Commissioners expect providers to demonstrate robust capacity assessments and lawful best interest decision-making within PBS plans. Care plans should clearly show how consent is sought and how decisions are reviewed.
Inconsistent or absent capacity documentation is a common source of contract challenge.
Regulator expectation: transparency and involvement
Regulator expectation (CQC): Inspectors look for evidence that people are involved in decisions as far as possible, even where they lack capacity. PBS documentation must show how consent, best interest decisions and reviews are recorded and communicated.
Operational example: governance oversight of capacity decisions
A provider introduced a monthly review of all PBS cases involving capacity concerns. This ensured consistency, multidisciplinary input and clear audit trails.
Effectiveness was evidenced through improved inspection feedback and reduced legal risk.
Embedding capacity awareness into PBS culture
Capacity and consent should not sit solely with senior staff. Embedding understanding into frontline PBS delivery supports ethical, confident and lawful practice.