Capacity and Supported Decision-Making

Contributed by Rosemary Budavari, Canberra Community Law and current to March 2018

Definition of capacity and impaired decision-making ability

Capacity is generally defined as the ability to make a decision. All adults are presumed to have capacity to make all decisions unless there is evidence that they do not have that ability.

The capacity to make decisions usually involves understanding the facts and main choices that relate to the decision; weighing up the consequences of those choices; understanding how those consequences affect the person; and communicating the decision in whatever way the person can.

If a person does not have the ability to make decisions they are usually referred to as having impaired decision- making ability or capacity.

Adults with disability should be assumed to have the capacity to make decisions. If the nature of their disability impairs their decision-making capacity, they may need assistance or support to make a decision. If they cannot make a decision, even with support, they may need to have a guardian, financial manager or health attorney make a decision for them as a last resort.

Substituted decision-making

People with impaired decision-making capacity may have guardians, financial managers or health attorneys appointed to make decisions for them under the Guardianship and Management of Property Act 1991 (ACT). A guardian, financial manager or health attorney becomes a substitute decision-maker.

Supported decision-making

Some recent legislation, policy documents and programs focus on supported decision-making as a way of maximising the capacity of a person with a disability. For example, the Mental Health Act contains principles relating to decision-making capacity for a person with a mental disorder or mental illness which assume that the person has decision-making capacity and focus on the support they need to maximise their decision-making capacity. Principles which must be taken into account by a person assessing someone's decision-making capacity under the Mental Health Act include that:
(a) A person's decision-making capacity is particular to the decision they have to make;
(b) A person who does not have decision-making capacity must always be supported to make decisions about the person's treatment, care or support to the best of their ability;
(c) A person must not be treated as not having decision decision-making capacity unless all practicable steps to assist the person to make decisions have been taken;
(d) A person must not be treated as not having decision-making capacity only because the person makes an unwise decision; and
(e) A person who moves between having and not having decision-making capacity must, if reasonably practicable, be given the opportunity to consider matters requiring a decision at a time when the person has decision-making capacity.

The principles relating to decision-making capacity in the Mental Health Act reflect principles emerging in cases about capacity including that:
(a) Capacity is decision specific. A person may be able to make some decisions such as how they pay their rent but not others such as when to sell shares;
(b) If a person can make some decisions, they should have the right to make as many decisions as possible;
(c) Capacity can fluctuate over time. Even if a person lacked capacity to make a particular decision in the past, they may be able to make that decision at a different time.
(d) Capacity can fluctuate in different situations. People may increase their capacity in a different environment, such as their home rather than a lawyer's office or when they have had pain relief; and
(e) A person should be given the necessary support to make a decision.

Supported decision-making safeguards

The NDS includes an action to ensure that supported decision-making safeguards are in place for people with disability.

The NDIS Framework introduces uniform national safeguards for participants such as decision-making support. Supported decision-making safeguards may include:
(a) Providing relevant information;
(b) Providing communication aids;
(c) Choosing an appropriate location and time for making the decision;
(d) Allowing sufficient time for the person making the decision; and
(e) Providing a decision supporter of the person's choice.

A person supporting another person to make a decision may be a family member, friend or a professional decision supporter. Organisations funded under the National Disability Advocacy Program may provide professional decision supporters or train family members and others in supported decision-making techniques to avoid the possibility of undue influence on a person with disability (see National Disability Advocacy Program).

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