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Guiding Principles of ADM (Capacity) Act 2015

A person is presumed to have capacity unless it is shown otherwise using a functional approach to capacity. A person does not have to prove they have capacity.

Presumption of Capacity

Guiding Principles of ADM (Capacity) Act 2015

Section 8 of the Assisted Decision-Making (Capacity) Act 2015 contains the Guiding Principles of the legislation. These principles guide interactions, decisions, and interventions with a person whose capacity is in question or will shortly be in question, and with a person who lacks functional capacity to make a specific decision. The Guiding Principles will apply to all Interveners under the legislation. As the principles are based on human rights principles they create a best practice guidance for all interactions with a person whose capacity is in question, may shortly be in question and also with a person who may be in vulnerable circumstances. Sage Advocacy has developed a Quick Reference to the Guiding Principles which can be used in everyday practice. 

9 Guiding Principles

  • Principle 1 - Presume capacity

    A person is presumed to have capacity unless it is shown otherwise using a functional approach to capacity. A person does not have to prove they have capacity – there is no test

  • Principle 2 - Support decision-making

    A person should be given all possible support to make their own decision. This means that all relevant information about the decision is given to the person in way that is appropriate to their own circumstances, considering the persons means of communication, the time and place that best suits the person, and using appropriate communication aids to assist the person. Sage Advocacy has developed resources on supported decision-making.

  • Principle 3 - Right to make an unwise decision

    A person is not considered unable to make a decision merely because they have made an unwise decision. If a person makes an unwise decision it does not mean a person lacks capacity to make the decision. A person's capacity should be construed functionally - the person's ability to understand, at the time a decision is to be made, the nature and consequences of the decision to be made in the context of the available choices at that time. 

  • Principle 4 - Intervene only where necessary

    No action/intervention should be taken unless it is necessary for the person based on their individual circumstances. 

  • Principle 5 - An intervention is least restrictive and respects the person's rights

    Any action/intervention taken for a person should be the least restrictive of their rights and freedom,  Any action should respect the person's dignity, bodily integrity, privacy, autonomy, and right to control over their financial affairs and property. An action should be proportionate to the significance and urgency of the matter in question, and be time limited

  • Principle 6 - An intervention gives effect to the person's will and preferences

    A person should be permitted, encouraged and facilitated to participate in any action/intervention taken for them. Any action/intervention taken for a person should follow the person's past and present will and preferences, and should take account of their beliefs and values, particularly those expressed in writing. The person making the intervention (the Intervener) should take account of any factors that the person would take into account if they were making the decision themselves. The Intervener should consider the views of others who the person has named, and the views of any decision-supporter appointed under the legislation. The Intervener should act at all times in good faith and for the benefit of the person. When acting or making a decision for a person, the Intenvener should consider all reasonable relevant circumstances. 

  • Principle 7 - Consider the views of others

    The views of people engaged in a caring role for the person, people with an interest in the welfare of the person or healthcare professionals may be considered by the Intervener when taking an action/intervention on behalf of a person.

  • Principle 8 - Consider likelihood of recovery & urgency of the matter

    If an intervention is proposed for a person who is considered to lack the capacity to make a decision about the matter themselves, consider if the person will recover capacity to make their own decision and consider if the intervention is urgent or if it can wait for the person to be able to make their own decision. 

  • Principle 9 - Obtaining, using and storing relevant information

    An Intervener should obtain relevant information only, use the information only for the purpose of making the action/intervention, keep the information secure and dispose of the information safely when no longer required

Guiding Principles

Section 8 of the Assisted Decision-Making (Capacity) Act 2015 contains the Guiding Principles of the legislation. These principles guide interactions, decisions, and interventions with a person whose capacity is in question or will shortly be in question, and with a person who lacks functional capacity to make a specific decision. The Guiding Principles will apply to all Intervenors under the legislation. Sage Advocacy has developed a quick reference Guiding Principles which can be used in everyday practice. 

Quick reference to the Guiding Principles

Watch: Sage's Legal Advisor Mary Condell explain the presumption of Capacity

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