Policy and Procedure for When a Resident is Unable or Chooses Not to Give their Consent to Care or Treatment


We want our residents to make as many decisions as possible about their care and the lives they live. This will include the completion of all consent forms which are included in their plan of care.  

We understand that residents may give their consent to certain aspects of their care and support but not to others and that this is their choice.  

If a resident has the capacity to give consent but will not or is unable to, this should be accepted. However, if the consent is urgent it may not be possible to obtain consent in advance, but this must be done as soon as possible afterwards.  

If the resident now lacks capacity, but has clearly refused particular treatment in advance of their loss of capacity (for example in an advanced directive), then we will abide by that refusal if it was validly made and is applicable to the circumstances.  


A resident is deemed as lacking capacity to consent if she or he is:

  • Unable to comprehend and retain information material to the decision, especially as to the consequences of having, or not having, the intervention in question; and/or
  • Unable to use and weigh this information in the decision making process.  

Mental Capacity Assessment  

  • To ensure that all residents can make decisions as much as possible they will be assessed regarding their mental capacity before any care delivery take place.
  • Each resident will have a copy of their Mental Capacity Assessment in their care file to assist staff in caring for them, so that every individual care need is met. This assessment will be reviewed monthly along with individual care plans.
  • As professional carers, each member of staff has a base knowledge of the essentials of the Code of Practice and be able to implement and act on the key principles in their everyday roles.
  • All staff will attend training as required to ensure they are aware of the details of the mental Capacity Act, its purpose and implementation.
  • Those close to the resident cannot require treatment which care providers do not believe to be appropriate. However, they will know the resident much better than we do and therefore are likely to be able to provide valuable information about the resident’s wishes and values.  

When a resident is unable to give consent or chooses to withhold consent  

The following must apply:

  • The resident must lack the capacity to give or withhold consent to this procedure AND
  • The procedure must be in the resident’s best interest.  

Capacity is ‘Decision Specific’  

A resident may lack capacity to take a particular complex decision, but be quite able to take other more straight-forward decisions or parts of decisions.  

Those close to the resident cannot require us to provide particular care, treatment or support which we do not believe to be appropriate.  

However, they will probably know the resident much better than we do, and therefore are likely to be able to provide valuable information about the resident’s wishes and values.  

Deprivation of Liberty  

  • Where a resident cannot or will not give their consent, staff will carry out their duties to ensure that the care that is provided for residents meets the needs of the individual and protects their human rights.
  • The dignity and well-being of the resident will be paramount at all times.
  • Staff at all levels will work collaboratively with other agencies as necessary to ensure efficient and consistent working practices, to ensure there is effective communication and information sharing.
  • Staff will adhere both to the principles of the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards 2008 at all times and reference will be made to both Acts and their Codes of Practice whenever capacity, best interest and deprivation of liberty issues arise.
  • Every effort will be made by those with a duty of care towards a resident to prevent deprivation of liberty.
  • Those involved with the relevant residents care planning and delivery will maintain responsibility for this throughout the assessment process; the DOLS assessment process is undertaken where necessary in addition to the individual’s care planning and delivery.
  • All organisations and services involved with the deprivation of liberty should seek to develop good practice by monitoring and reviewing processes.
  • Staff will work in accordance with the principles of the Data Protection Act, sharing and recording only that data which is necessary
  • Staff will seek to engage anyone involved in caring for a person, anyone named by them as a person to consult and anyone with an interest in the person’s welfare and ensure that are consulted in any decision-making.
  • Every effort should be made by all involved parties to resolve disputes surrounding a decision to deprive a person of their liberty.  

Best Interests  

Where there are no advance directives or consent given and we are unable to obtain consent from the resident then decisions will be made in their best interest.  

A resident’s best interests are not limited to their best medical interests. Other factors which form part of the best interest decision include:

  • The wishes and beliefs of the resident when competent.
  • Their current wishes their general well-being.
  • Their spiritual and religious welfare.
  • Unless the resident has clearly indicated that particular individuals should not be involved in their treatment or care, or unless the urgency of their situation prevent it, we will attempt to involve people close to the resident (spouse/partner, family and friends, carer, supporter or advocate) in the decision-making process.
  • Any decisions taken in the best interest of a resident will be done by at least 3 people, one of whom where ever possible should be a doctor; family member/representative will also be involved.
  • In the absence of a family/representative an advocate will be sought.
  • All actions and decisions will be documented and held with the care plan.  



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