Capacity – Guidance on Making Decisions

We make many decisions every day, often without realising. We make so many decisions that it’s easy to take this ability for granted.

But some people are only able to make some decisions, and a small number of people cannot make any decisions. Being unable to make a decision is called “lacking capacity”.

To make a decision we need to:

  • Understand information
  • Remember it for long enough
  • Think about the information
  • Communicate our decision

A person’s ability to do this may be affected by things like learning disability, dementia, mental health needs, acquired brain injury, and physical ill health.

The Mental Capacity Act 2005 (MCA) states that every individual has the right to make their own decisions and provides the framework for this to happen.

The issue of capacity or decision making is a key one in safeguarding adults. It is useful for organisations to have an overview of the concept of capacity.

The MCA is about making sure that people over the age of 16 have the support they need to make as many decisions as possible.

The MCA also protects people who need family, friends, or paid support staff to make decisions for them because they lack capacity to make specific decisions.

Our Ability to Make Decisions Can Change Over the Course of a Day

Here are some examples that demonstrate how the timing of a question can affect the response:

  • A person with epilepsy may not be able to make a decision following a seizure.
  • Someone who is anxious may not be able to make a decision at that point.
  • A person may not be able to respond as quickly if they have just taken some medication that causes fatigue.

In each of these examples, it may appear as though the person cannot make a decision. But later in the day, presented with the same decision, they may be able to at least be involved.

The MCA recognises that capacity is decision-specific, so no one will be labelled as entirely lacking capacity. The MCA also recognises that decisions can be about big life-changing events, such as where to live, but equally about small events, such as what to wear on a cold day.

Understanding the MCA

By understanding the MCA you will be able to understand how you may be part of the decision making process for a person.

To help you to understand the MCA, consider the following five points:

  1. Assume that people are able to make decisions, unless it is shown that they are not. If you have concerns about a person’s level of understanding, you should check this with them, and if applicable, with the people supporting them.
  2. Give people as much support as they need to make decisions. You may be involved in this – you might need to think about the way you communicate or provide information, and you may be asked your opinion.
  3. People have the right to make unwise decisions. The important thing is that they understand the implications. If they understand the implications, consider how risks might be minimised.
  4. If someone is not able to make a decision, then the person helping them must only make decisions in their “best interests”. This means that the decision must be what is best for the person, not for anyone else. If someone was making a decision on your behalf, you would want it to reflect the decision you would make if you were able to.
  5. Find the least restrictive way of doing what needs to be done.

Making Decisions

When a person needs help to make a specific decision, the following should be considered before a decision can be made in their best interests:

  • The individual needs all the relevant information to make the decision.
  • If there is a choice of options, has information been provided on the alternatives?
  • The communication needs of the individual must be taken into account, and the information must be presented in a way that makes sense to them.
  • Different communication methods must be explored, including obtaining professional or carer advice and support.
  • The risks and benefits must be considered for any decision.

Advanced Decision Making

A person over the age of 18 who has been deemed to have capacity can make an advanced decision document.

This document can specify how the person wants to be treated in respect of future health care decisions. They need to put this “advanced decision” in writing, and sign it. An independent third party must also act as a witness.

If the decision covers a situation where the person could die without receiving medical treatment, this should be acknowledged and addressed in the advanced decision document.

An advanced decision document is legally binding. If the person is deemed to lack capacity under the Mental Capacity Act, health practitioners will consider the document when making decisions about the person’s healthcare.

Why might someone create an advanced decision document? It’s usually because they feel strongly about certain issues. For example, they may not want to live with a long-term illness, or with life-changing injuries following an accident.

You can learn more about advanced decisions here.

What Can Your Organisation Do?

You should not discriminate or make assumptions about someone’s ability to make decisions, and you should not pre-empt a best-interest’s decision merely on the basis of a person’s age, appearance, condition, or behaviour.

When it comes to decision-making, you could be involved in a minor way, or asked to provide more detail. The way you provide information might influence a person’s ultimate decision. A person may be receiving support that is not in-line with the MCA, so you must be prepared to address this.

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