A person has the right to self-determine, to respect for their autonomy and to make decisions about matters which affect their own lives. One of the key principles of the Assisted Decision-Making (Capacity) Act 2015 is that a person is presumed to have capacity to make their own decisions, unless it is shown otherwise based on a functional approach. An assumption about a person's capacity cannot be made based on a disability, an illness or condition.
A functional approach recognises that decision-making capacity can fluctuate and it is specific to the particular decision. Functional capacity is 'issue specific and time specific'. The decision-making process has levels of complexity based on the type and urgency of the decision, and a person's decision-making capacity can be impacted by many factors. While a person may have difficulty or lack capacity to make some types of decisions it does not mean that the person lacks capacity to make other types of decisions. It also recognises that a person may lack decision-making capacity at one time, but not lack capacity if presented with the same decision at another time. Functional capacity considers the person's process of making a decision, and not the outcome of the decision itself.
Taking a functional approach to capacity means that a person should be supported to maximize their ability to make the decision themselves, or to maximize their participation in the decision-making process. If a person's capacity is in question or the person lacks capacity to make the specific decision the ADM (Capacity) Act 2015 provides for a range of decision-making supporters (Interveners) to provide the appropriate level of support needed for the person to exercise their decision-making autonomy.
A person is considered to lack capacity to make a specific decision if they are unable:
to understand the information relevant to the decision
to retain that information long enough to make a voluntary choice
to use and weigh up that information as part of the process of making the decision, or
to communicate their decision by any meansRead the Assisted Decision-Making (Capacity) Act 2015 legislation