Restrictive Practice, Capacity and Consent: Reducing Risk Without Breaking the Law
Restrictive practice is one of the fastest ways for a service to attract negative scrutiny if it is not clearly linked to lawful decision-making. Any restriction on a person’s liberty, choices or movements must be grounded in mental capacity, consent and best interests decision-making and reflect the organisation’s core principles and values. The test is not whether staff were trying to keep someone safe, but whether restrictions were necessary, proportionate, authorised and actively reduced.
Why restrictive practice and capacity are inseparable
In practice, restrictions are often introduced because staff feel they have “no other option.” The legal question, however, is different: does the person have capacity to consent to the restriction, and if not, is the restriction in their best interests and the least restrictive option available?
Common failures include:
- Introducing restrictions without a clear decision-specific capacity assessment.
- Failing to evidence attempts at supported decision-making.
- Allowing temporary measures to become permanent without review.
- Poor management oversight of restrictions used on shift.
Operational example 1: Restricting access to the community at night
Context: A person frequently leaves the service late at night, placing themselves at risk. Staff begin locking doors or insisting on supervision without a clear decision-making framework.
Support approach: The service defines the decision: “Can X understand and weigh the risks of going out alone at night today?” Supported decision-making is attempted first, including planning outings earlier and offering staff accompaniment.
Day-to-day delivery detail: When capacity is lacking during periods of distress, a time-limited restriction is applied with management authorisation. Staff document the indicators used, the alternatives offered, and the plan to reduce restriction (sleep routine support, increased daytime activity).
How effectiveness is evidenced: Records show reduced incidents and increasing periods where restrictions are not needed. Review dates are met, and restrictions are reduced as soon as capacity and risk allow.
Operational example 2: Restrictive practice linked to medication compliance
Context: Staff feel pressure to ensure medication is taken and begin using persistent prompting or implicit coercion.
Support approach: The service distinguishes between refusal with capacity and refusal without capacity. Capacity is assessed at the point of decision, with clear evidence of support offered.
Day-to-day delivery detail: Staff use agreed scripts, offer choices, and time administration to when the person is most receptive. Best interests administration, if used, is explicitly authorised, recorded and reviewed.
How effectiveness is evidenced: Audit shows a reduction in best interests administration over time, demonstrating a genuine restriction-reduction approach.
Operational example 3: Restricting contact due to safeguarding risk
Context: Concerns arise about exploitation by visitors. Staff restrict access informally without clear documentation.
Support approach: The service separates decisions about contact, information sharing and finances. Capacity is assessed for each decision.
Day-to-day delivery detail: Restrictions are clearly defined (what is restricted, when, and why), authorised by a senior manager, and paired with a plan to review and reduce. The person’s wishes and emotional impact are recorded.
How effectiveness is evidenced: Safeguarding outcomes, emotional wellbeing notes and review records demonstrate proportionality and ongoing oversight.
Commissioner expectation: active reduction of restriction
Commissioner expectation: Commissioners expect providers to evidence that restrictions are not static. They look for reduction plans, review dates, and data showing decreasing reliance on restrictive measures alongside maintained safety.
Regulator / Inspector expectation: clear legal basis and oversight
Regulator / Inspector expectation (CQC): Inspectors expect to see a clear legal basis for any restriction, linked to capacity assessment and best interests decision-making. They will examine how restrictions are authorised, monitored and reviewed, and whether staff understand their legal responsibilities.
Governance mechanisms that keep restrictive practice lawful
Effective services usually have:
- A restriction register: detailing what restrictions are in place, why, and review dates.
- Senior authorisation: clear thresholds for management sign-off.
- Reduction plans: practical steps to remove or lessen restrictions.
- Learning loops: reflective review after incidents or complaints.
This governance demonstrates that restrictions are a last resort, not a default response.