UT UA-2024-000745-V - [2025] UKUT 129 (AAC)

SLS told us that there were no assessments of capacity for any of the service users. Applying section 1 of the Mental Capacity Act 2005, that means they are assumed to have full capacity. And full capacity means capacity to make sensible decisions as well as ones that are unwise.

At the hearing, the evidence and discussion concentrated on JW’s diet. DBS’s finding relates to choices generally, including when and where to eat, what to watch on TV and where to watch. We will deal with the diet, but our analysis stands for all the other matters mentioned in the evidence.

SLS told us that the GP had given the staff guidance on JW’s diet. She did not treat that as an instruction, just advice. She spoke of trying to encourage JW to eat and drink sensibly. That is what she should have been doing, but we do not accept that she was maintaining the distinction between encouragement and control. The evidence given by JW and the members of staff is not consistent with her doing so. It was an easy line to cross, especially when SLS was under pressure and dealing with someone who was not easy to persuade. It was, though, a distinction that the law required her to maintain. We find that there were times when she did not maintain it.