Capacity, Consent and Risk: How to Make “Unwise Decisions” Safely and Lawfully
“Unwise decisions” are one of the most misunderstood parts of mental capacity practice. Services can unintentionally slip into over-control because staff feel responsible for preventing harm. The lawful position is clear: if a person has capacity for the specific decision, they can choose risk, even if others disagree. Good practice sits within mental capacity, consent and best interests decision-making and is anchored in core principles and values, including autonomy, dignity and proportionality. The operational challenge is evidencing how the service managed risk responsibly without undermining the person’s rights.
Why “unwise decisions” trigger poor practice
When something goes wrong, scrutiny often asks: “Why did the service allow this?” That pressure can drive risk-averse behaviour such as informal restrictions, constant persuasion or blanket supervision. The problem is that these responses can become unlawful if they are not grounded in capacity assessment and least restrictive principles.
Common drift points include:
- Assuming lack of capacity because the outcome seems risky.
- Using safeguarding language to justify restrictions where there is no abuse or coercion.
- Failing to document risk enablement measures, leaving staff exposed after incidents.
- Not reviewing risk decisions, so temporary controls become permanent.
Separating three different questions
Defensible practice is easier when staff separate these questions:
- Capacity: Does the person have capacity for this decision at this time?
- Risk: What is the likelihood and impact of foreseeable harm, and what controls are realistic?
- Safeguarding: Is there abuse, coercion, exploitation or neglect that changes the response?
Conflating them leads to restrictive, poorly evidenced practice.
Operational example 1: A capacitated decision to refuse mobility aids
Context: A person refuses to use a walking frame despite falls history. Staff feel this is “unsafe” and begin insisting on supervision, causing conflict.
Support approach: The service assesses capacity for “choosing whether to use the walking frame when walking indoors today.” It provides accessible information about falls risk and explores the person’s reasons (stigma, inconvenience, discomfort).
Day-to-day delivery detail: Staff offer alternatives: different frame type, physiotherapy input, environmental adjustments, and agreed “high-risk times” where support is requested (night-time, bathroom). Staff agree an enablement plan rather than forcing compliance.
How effectiveness is evidenced: Records show the person understands and can weigh consequences, so the choice is respected. Risk management is evidenced through environmental controls, falls monitoring, and review points. After a fall, the service can demonstrate it did not ignore risk; it managed it proportionately while respecting rights.
Operational example 2: Choosing to maintain a relationship with known risks
Context: Family and staff dislike a partner who encourages heavy spending and alcohol use. The person wants continued contact and becomes distressed when staff intervene.
Support approach: The service separates the decision about contact from financial decisions and health choices. Capacity is assessed for each domain, rather than treating the relationship as the “problem”.
Day-to-day delivery detail: Where the person has capacity for contact, the service focuses on harm reduction: budgeting support, agreed boundaries, safe transport, and check-ins. If capacity is lacking for finances, proportionate safeguards are put in place without banning contact by default.
How effectiveness is evidenced: The service evidences consultation, risk planning, and safeguarding thresholds (what would trigger escalation). This reduces the risk of reactive, unlawful restrictions if concerns intensify.
Operational example 3: A capacitated decision to self-discharge from support
Context: A person wants to reduce support hours significantly, increasing risk of missed medication and self-neglect. Staff fear reputational risk and attempt to block the change.
Support approach: The service assesses capacity for “reducing support from X hours to Y hours from next week.” It provides clear information about foreseeable risks and explores mitigation options.
Day-to-day delivery detail: Staff co-produce a step-down plan: trial period, remote check-ins, prompts, contingency contacts, and rapid re-escalation routes. The plan is documented with the person’s agreement.
How effectiveness is evidenced: The service tracks outcomes (medication adherence, wellbeing, incident calls) and documents reviews. This shows commissioners and inspectors that the service respected autonomy while maintaining a safe system response.
Commissioner expectation: positive risk-taking that is planned and recorded
Commissioner expectation: Commissioners expect risk enablement to be planned, not improvised. They look for evidence that services can articulate and record how capacitated choices were supported safely, including contingency planning, review dates and escalation pathways. They also expect decisions to be consistent across teams, not dependent on individual staff confidence.
Regulator / Inspector expectation: autonomy with defensible controls
Regulator / Inspector expectation (CQC): Inspectors expect providers to respect autonomy and avoid unnecessary restrictions. They will test whether staff understand that unwise decisions do not equal incapacity, and whether risk management is proportionate and reviewed. Poor practice is often revealed by “informal rules” that limit freedom without legal basis.
Governance: keeping positive risk-taking safe across the organisation
Organisations that deliver strong practice typically have:
- Clear positive risk-taking frameworks: describing how choices, risk and safeguarding thresholds are handled.
- Decision recording standards: so staff know what evidence to capture.
- Supervision focus on dilemmas: reflective review of complex risk choices.
- Audit and learning: sampling of risk decisions after incidents to strengthen practice.
This governance reduces fear-driven restriction and supports consistent lawful practice under pressure.