How can we support decision making when someone lacks capacity now or might in the future?

“ There are growing numbers of people in England and Wales, estimated as around 2 million, who may lack capacity to make decisions or themselves because of illness, injury or disability. There are also concerns about variations in quality, consistency and availability of support to facilitate decision making.”

This is where the 2018 NICE Guidelines on Decision Making and Mental Capacity, which was published back in October, becomes an invaluable tool.

The guideline covers decision making in people aged 16 years and over who may lack capacity now or in the future. The guidelines suggest ways to help people make decisions and maximise personal autonomy. They are aimed at health and social care professionals but the guidance can also be used by other professionals who may come into contact with people who lack mental capacity, independent advocates, deputies, family, friends or carers.

The guidelines apply to a range of decisions, from financial matters, day to day living and care. It also includes various recommendations including supporting decision making, best interests decision making, assessing mental capacity, training and support from staff and advance care planning.

How can NICE guidelines help you?

Every effort needs to be made to support people to make decisions when they have the mental capacity to do so and for them to still be the centre of the decision making process when they don’t have the mental capacity to do so, in which case a bests interest decision should be made on their behalf.

The guidelines contain a summary of key points and helpful reminders. The guidelines support the Mental Capacity Act 2005 and its Code of Practice which should be read alongside. They do not cover Deprivation of Liberty Safeguards processes.

What is supported decision making and how do you do it?

Section 1(3) of the Mental Capacity Act sets out that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to so have been taken without success.”

Supporting decision making requires collaboration and trust – you need to understand what is involved in a particular decision, what aspects of the decision making a person may need support with and why. This may involve helping a person with their memory or communication or helping them understand and weigh up the information relevant to a decision.

Providing relevant information is essential in all decision making. All practical and appropriate steps must be taken to support others to make a decision for themselves.

A personalised approach must be taken during the decision making process accounting for any reasonable adjustments and the wide range of factors that can have an impact on a person’s ability to make a decision, for example a person’s physical or mental health, their communication needs, the effects of drugs or other substances or cultural or religious factors.

In terms of communication, it might be appropriate to use pictures, objects or illustrations. Find out from people who know the person well what the best form of communication. It is also helpful to know if there is a particular time of day when it is best to communicate with them.

You should involve significant and trust people in line with the person’s preference. If there is no one then it might be appropriate to involve an advocate.

An example of supported decision making

P lacked the mental capacity to manage his own property and affairs and a Professional Deputy was appointed. P was still able to make some decisions with support and wished to purchase his own property.

We encouraged P to research and identify properties of interest and his family and case manager were actively involved in this in order to support P to fully participate and make decisions. Fatigue was an issue for P so property viewings were arranged later in the day as that time suited him best. Notes were taken during the viewings and revisited with P after the viewings so that he could understand and weigh up the information – for example did he want to live near to a noisy main road - in order to make a decision as to his preferred property.

Once P had made his decision, we negotiated with the agents to secure the property for him and dealt with the property purchase.

How can we help?

It’s clear that there is a lot to think about when supporting an individual who lacks the mental capacity to make their own decision or might lack capacity in the future to make a decision.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

If you have any queries or questions about how to support someone to make their own decisions then please contact our Court of Protection team by email on cop@boyesturner.com.

The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

Boyes Turner client

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