Supported decision-making and mental capacity

What is mental capacity?

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Mental capacity refers to the ability to make an informed decision. Mental capacity is time and decision-specific. Some people will be able to make certain decisions but not others and a person’s mental capacity may change over time.

If people working with or caring for a person think that individual may struggle to make a decision, they should complete a mental capacity assessment. This assessment looks at the person’s ability to understand and think about decision options and weigh these up in order to make a decision. Different UK legal frameworks describe how this assessment should be completed.

The mental capacity assessment will indicate whether the individual can make the decision independently, with support, or needs others to make it on her/his behalf, in her/his “best interests”. Again, legal frameworks describe how best interests decisions should be made.

What is supported decision making?

Supported decision making refers to decision making by individuals who are assisted by others to understand, think about and communicate about decisions. During a mental capacity assessment, it is important that an individual is given whatever support s/he needs to be able to make a decision.

For example, a person with a communication disability may require support to understand information about the decision. In this situation, the people carrying out the mental capacity assessment need to provide information in a way that helps the person to understand it better.

Another person may have difficulty talking about what they think and feel about a decision and communicating their decision choice. In this situation, the people carrying out the assessment need to encourage the individual to use different methods to communicate. For example, s/he may be able to write information down, use gestures, draw, point to communication symbols, or use a communication aid to get her/his message across.

What is advance care planning?

Advance care planning refers to statements and decisions that are made by people when they still have mental capacity about how they would like to be cared for and treated when they lack mental capacity. For example, an individual can make an “advance statement” specifying the types of care and living arrangements s/he would prefer. An individual can also make an “advance decision” to refuse a specific type of treatment. People can make advance decisions to nominate others to make decisions on their behalf at a future time. This type of arrangement is called a “power of attorney”.

Role of speech and language therapy

Speech and language therapists (SLTs) are trained to work with people with communication and swallowing difficulties. Therefore, SLTs have an important role in supporting people with these difficulties to make decisions. SLTs can use their expertise in communication assessment and facilitation to ensure that people with SLCN receive the specific support they need to understand, think and talk about decisions during mental capacity assessments. SLTs can also use their specialist skills to support people with SLCN to understand and engage in advance care planning.

SLTs can play different roles during mental capacity assessments. An SLT may be the best person to carry out a mental capacity assessment if the decision an individual is being asked to make relates directly to a communication and swallowing difficulty. In a different situation, where a mental capacity assessment finds that a person with SLCN lacks capacity to make a decision, an SLT could be an advocate for the individual, when a decision is made in her/his best interests. This role would involve the SLT explaining the individual’s preferences and views about different decision options to the people making the best interests decision.

Finally, SLTs have an important role in educating professionals, service users and their families about the types of support people with SLCN may require to make decisions and demonstrate their mental capacity. SLTs can use their specialist skills to train other people to use communication strategies and techniques to support people with SLCN when they make decisions or during mental capacity assessments. The same approaches can be used when people lose capacity, to support them to express their preferences and wishes about decisions.

Resources

The Royal College of Speech and Language Therapists (RCSLT) has produced a factsheet about mental capacity and the role of speech and language therapists. You can read the factsheet here.

RCSLT Position statement on Supported decision making and mental capacity.

Contacts

Office of the Public Guardian (OPG)

This is a government sponsored agency responsible for protecting people who lack mental capacity and need others to make decisions and manage their affairs for them. The OPG registers Powers of Attorney and keeps a public register of attorneys and court appointed deputies. The OPG supervises the activities of court appointed deputies. It investigates allegations of abuse made against registered attorneys and deputies. Each country in the UK has its own OPG that works within the mental capacity legal framework that applies in that jurisdiction. For more details see the links below:

Office of the Public Guardian in England and Wales

Office of the Public Guardian in Scotland

Please note there is no Office of the Public Guardian in Northern Ireland currently. This is likely to change when the Mental Capacity Act (Northern Ireland) 2016 is implemented.

Mental Welfare Commission for Scotland

T his independent organisation aims to safeguard the rights and welfare of people with a mental health condition, learning disability, dementia or a related condition. The Commission provides advice and information to service users, carers and professionals. It also aims to monitor and improve the quality of the care and services provided to people with these conditions.

Legal advice organisations and practitioners

Law Society “Find a Solicitor” service
Find a Solicitor is a free online service provided by the Law Society. It includes listings for organisations and people providing legal services in England and Wales that are regulated by the Solicitors Regulation Authority (SRA). There is a search facility enabling users to search specifically for providers specialising in services related to mental capacity.

Solicitors for the Elderly
Solicitors for the Elderly (SFE) is an independent, national organisation of legal professionals who provide specialist legal advice for older people, their families, carers and other professionals.

Law Centres Network
This a UK network of independent, not-for-profit law centres offering legal advice and support on a range of issues related to social welfare law, including disability rights and mental health topics.

The Scottish Association of Law Centres has its own website.