Adults with incapacity: guide to assessing capacity

Chapter 2: Supporting decision-making

Introduction

1 A person should not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

There are a number of ways to help and support someone to make his/her own decisions. These will vary depending on the decision to be made, the timescale for making the decision and individual circumstances of the person wishing to make it.

The 2000 Act applies to a wide variety of people with a range of conditions which may affect their decision-making capacity. Different methods apply when seeking to give appropriate explanations, help and support, for example, to a person with a learning disability, dementia or a severe acquired head injury.

It is important to note that the individual's capacity to make decisions at a particular time is likely to be compromised if he/she is suffering pain or discomfort, is taking medication which causes drowsiness, or has a short-term illness.

Some pointers are given below - only some of these will be relevant to any particular situation and the examples are not exhaustive.

Providing all relevant information

2 The provision of relevant information is essential for any type of decision-making, no matter how simple the decision or capable the decision-maker. The goal is to enhance communication and understanding so the person is informed. All practical steps must be taken to help the person make the decision themselves. This includes providing all the information relevant to the decision in question in a way the particular individual can understand.

It is important to choose the means of communication that is easiest and most appropriate for the person concerned.

• Take time to explain anything you think might be relevant or might help the person make the decision in question.
• Try not to burden the person with more information than is needed. An explanation in broad terms may be sufficient for the decision to be made.
• Describe any foreseeable consequences of making the decision or not - the risks and benefits.
• Explain the effects the decision might have on the person and on others close to the person.
• If there is a choice, give the same information in a balanced way.

Communication: general points to consider

3 The following points will apply to the majority of situations:

• consult family members, care workers or whoever knows the person well on the

- most effective way or method of communicating with the person concerned;

- best times to communicate; and

- best people to be involved in doing this.

• Use simple language and where possible use pictures and objects rather than words.
• Ask one question at a time (avoid asking multiple questions in the same sentence).
• Speak at the right volume and speed.
• Use language appropriate to the individual (words and sentences).
• Be aware of cultural or religious factors which might influence the person's way of thinking, communicating and behaving.
• Consider whether the services of an independent advocate (if the person does not have one already) might be helpful in assisting communication.

Communication: aids for people with specific communication or cognitive problems

4 A wide range of aids has been designed to assist communication, the key is to find out what will best meet the needs of the individual.

• Find out what the person is used to - for example Makaton or some other way of communicating that is only known to those who are close to the person.
• If the person has hearing difficulties, consider using appropriate visual aids or sign language.
• Consider using any appropriate mechanical devices such as voice synthesisers or other computer equipment.
• In cases where you are unsure how best to assist, consider seeking professional help from, for example, a speech and language therapist or expert in clinical neuropsychology.

Choosing the best time and place

5 Most people find it easier to make decisions when they feel relaxed. A person's state of mind and ability to make a decision, can be influenced (amongst other things) by the physical environment. It is also important to recognise that some people are more alert or able to pay attention better at different times of the day.

Taking practical considerations into account, you will need to judge which of the following factors will be important in each situation.

Location

• Where possible, choose the best location where the person feels most at ease - usually people will say that they feel more comfortable in their own home, or may prefer somewhere neutral, rather than in a doctor's surgery or interview room.
• Consider if it might be easier to make the decision in a location relevant to the decision - for example - a decision to consent to attending a day care centre or a move to a care home may be made easier by a visit (which would in any case be good practice). Where the person has no previous experience on which to base a decision, he/she may need to be given the opportunity to gain direct experience before he/she can make an informed choice or commitment to a specific decision.
• Choose a quiet place where interruptions are unlikely. Try to eliminate background noise or other distractions.

Timing

• If possible, try to choose the time of day when the person is most alert.
• Take one decision at a time - be careful to avoid tiring or confusing the person.
• Don't rush - allow time for reflection or clarification as appropriate.
• Be prepared to abandon the first attempt and try at other times.
• If the person's capacity is likely to improve, for whatever reason (for example, after treatment), if possible wait until it has done so. This may not be possible if the decision is urgent.
• Some medication could affect capacity ( e.g. medication which causes drowsiness or affects memory). Consider delaying the decision until any negative side effects of medication have subsided.
• When someone is in an acute state of distress e.g. following bereavement, or where there are long-standing issues influencing the person's understanding, decision-making may be delayed to give him/her the opportunity to recover/undertake a recognised psychological therapy.

Enabling decision-making

6 In addition to doing all you can to create the best possible environment to present relevant information for decision-making, there are other techniques and support mechanisms which may assist.

• Many people find it helpful to be able to talk things over with someone they trust or with people who have been in a similar situation. For example, people with a learning disability may benefit from the help of a designated support worker or being part of a support network of peers.

• It may be helpful for the person to have assistance from an advocate who is independent of family and other agencies involved in the person's care. An advocate could help the person express their views, choice/s and aspirations. (Person-centred plans can map out people's wishes, hopes and aspirations in advance of a crisis or change in ability or circumstance.) ⁴

Publications, DVDs and other materials have been produced to help people who need support to make decisions, and for those who provide support. ( See Appendix 3 Useful Resources.)