Capacity and Supported Decision-Making

Contributed by Rosemary Budavari and Farzana Choudhury, Canberra Community Law and current to July 2021

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. Any person may have capacity to make some decisions, but not others, and decision-making capacity can change over time or in response to environment and other factors depending on and specific to each individual.

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. This understanding of “capacity” is reflected the Mental Health Act 2015 (ACT) (‘Mental Health Act’), which defines the meaning of decision making-capacity at section 7. However, each jurisdiction has different definitions and understandings of when a person has decision-making capacity. 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.

The ACT Capacity Toolkit provides further guidance on assessing a person’s capacity.

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 for the person with impaired decision-making capacity, which allows them to make decisions on that persons’ behalf in the specific area in which they have been appointed.

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 section 8 of the Mental Health Act include that:

The principles relating to decision-making capacity in the Mental Health Act reflect principles emerging in cases about capacity including that:

Supported decision-making safeguards

The National Disability Insurance Scheme’s (‘NDIS’) ‘Overview of the NDIS Operational Guideline’ (‘Operational Guideline’) provides guidance on supporting people with disability when they make decisions, including decisions in relation to the NDIS. Section 6.1 of the Operational Guideline provides that the NDIA will support the person in the decision-making process which may involve a range of approaches, including:

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).