The Assisted Decision-Making (Capacity) Act was enacted in December 2015 and governs the law in relation to vulnerable adults who are experiencing difficulties with decision making.
There are a number of principles that form the basis of the Act and are of such importance they are used to guide interactions with persons whose mental capacity is in question.
- Presumption of Capacity – The first and most important principle is the presumption of capacity. This means it is assumed that everyone has capacity until proved otherwise. A lack of capacity should not automatically be assumed simply based on a person’s age, appearance, condition or behaviour. Similarly, just because a person has lacked capacity to make a previous decision, this does not necessarily mean they cannot make the decision in question. For example, a lack of capacity to manage finances, does not mean a person lacks capacity to decide where they want to live.
- Support to Make Decisions – all practical steps should be taken, to help the person make the decision themselves before treating them as unable to make the decision. This means in practice it is important to consider how and when the person is being asked to make the decision. Is there a time of day when they are more alert? What is the most appropriate way to communicate with them? Have they been provided with all the relevant information? Can location have an effect? Do they need assistance from someone? Often, we can wrongly think a person does not have capacity, simply because we have not taken the time or effort to explain it in a way they can understand.
- Unwise Decisions –A person is not to be treated as unable to make a decision, merely because they make an unwise decision. This is where the focus of assessing a person’s capacity needs to be based on how the person makes the decision, rather than the decision they make. In effect, the decision itself should be irrelevant. If we base our assessment of capacity on the decision, then we are applying our own or society’s beliefs and values to the decision, not the person’s decisions be they good or bad.
- Intervene Only When Necessary – No action or intervention should be taken unless it is absolutely necessary for the person, based on their individual circumstances.
- Least Restrictive Approach – requires that an intervention in respect of person be made in a manner that minimises the restriction on their right and freedom of action and must respect the person’s right to dignity, bodily integrity, privacy and autonomy.
- Will and Preferences – Everyone involved with the assisted decision-making process must give effect to the will and preferences of the person and take into account the beliefs and values of the person. People must act at all times in good faith and for the benefit of the person. These include permitting, encouraging and facilitating the person to participate, as fully as possible in any intervention.
- Consider Views of Others – Consideration of the views of anyone engaged in caring for the person, who has a bona fide interest in the welfare of the person.
- Consider the Likelihood of Recovery – In order to emphasise the principle of “least restrictive approach”, this principle provides that, in the case of a person who lacks capacity, regard shall be had to the likelihood of the recovery of the persons capacity and the urgency of making the intervention prior to such recovery.
- Use of Information – relevant information only should be obtained from a person and use the information only for the purpose of making the action/intervention. The information must be kept secure and disposed of safely when no longer required.
These principles guide interactions, decisions and interventions with a person whose capacity is in question or will shortly be in question, and with a person who lacks capacity to make a specific decision. As the principles are based on human rights principles, they create a best practice guidance for all interactions with a person whose capacity is in question, may shortly be in question and also with a person who may be in vulnerable circumstances.
Capacity law should respect every person’s independence, dignity and freedom to make their own choices in line with their right to self-determination.