Section 6 - Assisted decision making

 

Section 6 has three parts. Select a link below for more information about each topic.

Assisted decision-making

Assisting, or supporting, someone to make a decision means giving them the tools they need to make the decision for themself. It is about supporting them to make their own decision, and in doing so, safeguarding their autonomy. It does not mean making the decision for them. A person's right to make decisions is fundamental to their independence and dignity.

Capacity principle 6 provides that before you assess someone as not being capable of making a certain decision themself, you need to do everything you can to support them through the decision-making process 38. The support you will be able to give varies, depending on the following:

  • what decision is being made? For example, a significant one-off decision will require different support from day-to-day decisions
  • what are the circumstances of the person making the decision? For example:
- a person who has learning difficulties may need a different approach from a person who has dementia

- if the person has an intellectual disability then you may need to seek a neutral support person or specialist such as, in behavioural support

- if the person has difficulty communicating they may need a neutral interpreter 39a person with skills in Alternative and Augmentative Communication (AAC) systems, or an advocate present when an assessment is taking place

- where the person has a mental illness that fluctuates, making the decision may be able to be delayed.

  • how much time does the person have to make the decision?

The exception to assisted decision-making is where a formal legal substitute decision-maker has already been:

  • called upon as a 'person responsible' (see the definition on page 102)
  • activated by a power of attorney or enduring guardianship
  • appointed by a tribunal or court.

You can't support the person to make their own decision in these situations because it has already been determined that the person lacks the capacity to make the decision for themself. However, even in these situations the substitute decision-maker should consult with the person about the decision to be made.

How can I support a person to make their own decision?

This Toolkit has provided guidelines to help you to assess whether a person has capacity to make certain decisions. If you have decided that they have capacity but need help in making a decision, it is up to you to consider what kind of assistance is possible and appropriate. You may need to seek the advice of appropriate family, friends, carers, professionals or specialists.

Not all steps outlined in this section will apply in every situation and there may be other ways of supporting a person that have not been discussed here.

 

It is always important to find the most effective way of communicating with the person.

Provide relevant information

Does the person have all the information they need to make an informed decision? If not, provide and explain any information required to help the person make the decision.

However, try not to give more detail than the person needs. In some cases a very simple, broad explanation will be enough.

Describe the risks, benefits and any possible consequences of making, or not making, the decision.

You might need to support the person to access specialist advice, such as advice from a medical practitioner, a financial or legal advisor, or to get advice from trusted friends or relatives.
If the decision-maker has choices, provide the person with the facts they need on all the options in a balanced way. Discuss the risks, benefits, and any possible consequences, of each choice.
Explain the effects that each choice may have on the person and those around them, including the people involved in their care.

Communicate in an appropriate way

Communicate in the way that the person is best able to understand.
Provide information in the person's preferred communication mode and format.
It may be necessary to get some support to assist in communication. For example, you might engage a neutral interpreter 40or have an advocate present.
For people with communication needs, there may be a necessity to use a particular Alternative and Augmentative Communication (AAC) system. This may be as simple as obtaining a specific piece of equipment to aid in communication, such as a hearing loop, letter, word or picture board, voice synthesiser or a computer. However, it may mean that someone with particular skills in using and interpreting the AAC is needed to support the person during the assessment.
Where a person with communication needs has no AAC system in place, it may be necessary to make a referral to a speech pathologist for a communication assessment. If this is not practical, then do the following:

  • if using visual aids to help explain things, such as pictures or objects, make sure the person understands them the way you want them to. For example, a red bus may represent a form of transport to one person and a day trip to another
  • for people who use non-verbal methods of communication, behaviour (in particular, changes in behaviour) can tell you how they are feeling. You may need to get some advice from a behavioural support practitioner
  • when you are speaking, use simple language and sentence structure
  • speak at an appropriate volume and speed
  • ask open questions to check that the person has understood what you have said or shown
  • separate difficult information into smaller parts to make it easier to understand.

Help the person feel at ease

Location

Find out if there are particular locations where the person might feel more at ease. If there are, use them.
It is possible that the person may be able to make their decision more easily at a location associated with the decision. For example, it might help the person decide about medical treatment if you take them to a hospital to see what is involved.
Choose a quiet location where the discussion can't be easily interrupted.
Try to eliminate any background noise or distractions, such as television, radio, or people talking.
Choose a location where the person's privacy and dignity can be respected.

Timing

Find out if there is a particular time of day when it is best to communicate with the person. Some people are more alert in the morning; others are better in the early afternoon or evening.
If the person's capacity is likely to improve in the near future and the decision is not urgent, then delay the decision until communication is easier for the person. For example, you may want to delay a decision until after an episode of depression or psychosis or until a cycle of medication that affects the person's capacity is complete.
If capacity for several decisions is being assessed then you may need to assess each decision at a different time. This will minimise the chances of confusion or tiredness.
Do not rush the assessment. Give the person time to think and ask questions where necessary.

Case Study

Helping the person feel at ease

‘There is a young man, Van, who has been in hospital for a few months. He has an acquired brain injury and hisbehaviouris, at times, quite difficult. This is usually when he isn't able to understand what you're explaining to him.

I remember trying to get him to agree that when he was released from hospital he would go to the outpatient clinic for regular check-ups. I was in the middle of explaining it to him when he got really angry, started swiping at the book I was holding and yelling at me.

I spoke to Van'sbehaviouralpractitioner and got some advice. I learnt that Van got more agitated and aggressive late in the evening. He wasn't able to concentrate as well at that time of day, as often all he could think about was when dinner was coming!

The practitioner also advised that it was hard for Van to concentrate in a noisy environment, and the ward was very noisy. This made him increasingly frustrated.

So I decided to talk to Van the next morning, after breakfast. He was much more alert and could concentrate for longer. He was also calm. I took him into one of the empty consultation rooms where it was quiet. As advised, I was very brief with my explanations and didn't rush him at all. Van understood and seemed happy to agree to go to the clinic for check-ups.'

Frank, nurse

Enlist support in the decision-making process from other people or services

Sometimes a person will be much more comfortable making decisions when someone else is there to support them. Having a relative, friend or advocate present can make the person feel more at ease.

Others may not like another person present. This may increase anxiety or affect their ability to make a free choice.

Support the person to access, or to find help accessing, other services if appropriate. For example, there may be services that will help the person to build new skills to improve their capacity to make particular decisions, or services to assist the person to sort out underlying personal or social issues that are affecting capacity. A person may require access to medical advice if there is a medical issue that could affect capacity.

Get assistance from a neutral interpreter 41advocate, speech and language therapist, behavioural support practitioner or other professional if required. If you can't get specialist advice on communication (AAC systems) then ask those who know the person well about the most appropriate form of communication or whether there is someone who can communicate easily with the person. Family members, friends, advocates, carers (paid or unpaid), or health care workers may be able to assist with this knowledge.

Be aware that sometimes people lose verbal skills, for example, due to dementia. While the person may have communicated in a second language in the past they may now prefer to use their first language, and you may need an interpreter.

Case Study

Supporting a person to make their own decision

'Jane has an intellectual disability. She expresses herself using some words, facial expressions and body language. She has lived in her current group home all her life, but now she needs to move to a new group home.

She finds it difficult to discuss abstract ideas or things she hasn't experienced. Staff concluded that Jane lacks the capacity to decide for herself which new group home she should move to. They then asked me, an advocate, to support Jane to express any views she may have so they could take these into account when making a decision for her.

I spent time with her in different environments and got specialist advice on the best way to communicate with Jane, used pictures, symbols and a structured language program familiar to Jane in order to find out the things that are important to Jane. I spoke to people who know her to find out what they think she likes. When some suitable places were found, I visited the homes with Jane. We took photos of the houses to help her to distinguish between them. I then used the photos to support Jane to work out which home she prefers.

During this process it became clear that, with the right communication, Jane was able to comprehend the idea of moving and tell me what she wanted and why. She did have the capacity to make decisions about her accommodation when she had the right support and communication system, and will be able to make the final decision about moving.'

Anthea, advocate


Resolving disagreements

At times people will disagree about a person's capacity to make a decision. The disagreement may be between someone who has assessed a person as having, or lacking, capacity to make a certain decision and/or:

  • the person they have assessed
  • a family member, friend, or carer (paid or unpaid) of the person
  • a professional who has assessed the person's capacity differently.

Tips on resolving disagreements

Disagreements can be resolved in either informal or formal ways.

Usually, informal ways are better for all involved as the matter is resolved more quickly, with less stress and at less cost than if a formal method was used.

Addressing disagreements early will often stop the dispute developing into something more serious.

Listening to, acknowledging and freely discussing a person's issues without criticism may be all the person is asking for. This could resolve the disagreement.

Don't be afraid to discuss the 'un-discussable'!

Where the issue is not urgent, giving a person time to process the information may help them to accept a different point of view.

Informal ways of resolving disagreements

Setting out the issues clearly in writing will sometimes help those involved focus on the most important issues. Putting the issues in writing may also make them clearer. However, make sure you don't use emotional language or make assumptions. Stick to presenting the facts only.

Holding a meeting to discuss the issues in detail may also work. It is sometimes a good idea to meet with the person you have a disagreement with. People should be encouraged to invite a support person to the meeting if they want to. A colleague, advocate, family member, friend or carer might be suitable.

It may be helpful to invite someone independent as well. This person could manage the meeting so that everyone gets an opportunity to state their views and concerns, while ensuring that the meeting does not become emotionally charged. You may want to engage a professional mediator.

It may be useful for the independent person to guide people through deciding what the rules are at the start of the meeting, as well as getting agreement on the matters for discussion. That person can then ensure that, during the meeting, everyone sticks to the rules and the issues.

When the meeting is over, you may wish to write to the other person and set out what you think the result of the meeting was and what the next steps are for those involved.

This method of resolving disputes may be inappropriate where there is an established pattern of behaviour, or a power imbalance, in relation to the people involved.
You may seek some advice or assistance with mediation or conflict management from your local Community Justice Centre.

Community Justice Centres
Ph: 1800 990 777
www.cjc.nsw.gov.au

Getting an advocate involved can be useful. An advocate may be able to help settle a disagreement in difficult situations simply by presenting a person's views to their family, friends, carers or professionals. Having an advocate can support a person to:

  • say what they want
  • protect their rights
  • represent their interests
  • get the services they need.
Most advocacy services are provided by non-government organisations and are arranged at a local community level. There are some advocacy organisations listed in the resource section on page 165.

Getting a second opinion of a person's capacity may resolve a dispute where the second opinion is the same as the original assessment result 42.

Formal ways of resolving disagreements

If a disagreement can't be resolved informally or is so serious that informal resolution is not suitable, it should initially be referred to the Guardianship Division of NSW Civil & Administrative Tribunal. If you are unsure about whether a matter should go to the Tribunal, contact them for guidance and advice.

Guardianship Division
Phone: (02) 9556 7600
Toll free: 1800 463 928
People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.
www.ncat.nsw.gov.au
The Tribunal considers applications for:

  • guardianship
  • financial management
  • review of guardianship or financial management orders
  • consent to medical and dental treatment
  • reviews relating to the making, operation and effect of enduring powers of attorney
  • review of an enduring guardian appointment.

If you have made an application or are the subject of an application to the Guardianship Division and are unhappy with the decision, you can ask the Supreme Court of NSW or the Administrative & Equal Opportunity Division to look at the issue. This is called being able to 'appeal'.

If you are thinking of appealing a decision of the Tribunal you should get some advice from a solicitor. There are time limits on appealing, and other rules about who can appeal and what types of decisions can be appealed.

Supreme Court of NSW
Ph: (02) 9230 8111
www.supremecourt.justice.nsw.gov.au


Administrative & Equal Opportunity Division
Ph: (02) 9223 4677
Toll free: 1800 060 410
People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.
www.ncat.nsw.gov.au

The Law Society of NSW can give you a list of solicitors in your area through their website www.lawsociety.com.au. Click on 'Advance find a lawyer search' or ring the 'Solicitor Referral Service' at the Law Society of NSW.

Law Society of NSW
Ph: (02) 9926 0300
Toll free: 1800 422 713
www.lawsociety.com.au

You might also call LawAccess NSW which is a free government telephone service that provides legal information, advice and referrals for people who have a legal problem in NSW.

LawAccess NSW
Ph: 1300 888 529
People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.
131 450 Telephone Interpreter Service
www.lawaccess.nsw.gov.au

Legal Aid NSW provides free legal advice and in some cases can provide ongoing assistance. To locate the closest office call LawAccess NSW or visit the Legal Aid Commission's website www.legalaid.nsw.gov.au

Or you may get free advice from your local Community Legal Centre (CLC). A directory of CLCs is available from the National Association of CLCs by phoning (02) 9264 9595 or at www.naclc.org.au

Other avenues of complaint

Below is a quick guide to other places from which you can seek assistance in resolving disputes relating to capacity, or to which you can make a complaint about the way in which an assessment has been conducted.

Banking services

The Financial Ombudsman Service (FOS) is a free and independent dispute resolution service. The FOS will take complaints from individuals about member financial services operating in Australia if the amount you claim is less than $280,000.

Financial Ombudsman Service
Toll free: 1300 780 808
www.fos.org.au/

Contracts for goods and services

NSW Fair Trading can be contacted for advice where a person has bought goods or services, and capacity is an issue. Consumers of everyday goods and services can get information on their rights and responsibilities, and can get assistance with resolving disputes.

NSW Fair Trading safeguards consumer rights and advises business and traders on fair and ethical practice.
The aim is to achieve fairness for all in the marketplace. Unfair practices are investigated and prevented.

NSW Fair Trading
General enquiries: 13 32 20
www.fairtrading.nsw.gov.au

See also information on CTTT below.

Residential tenancy disputes (Leases)

The Consumer and Commercial Division of NSW Civil & Administrative Tribunal will resolve a wide range of disputes in an accessible, informal, efficient and inexpensive manner. The Consumer and Commercial Division resolves disputes by alternative dispute resolution or at hearing, generally through conciliation

Disputes dealt with include:

  • rental bond and residential tenancy issues
  • purchase and supply of goods or services
  • motor vehicle repairs and purchase of new cars
  • finance and credit.

The Consumer and Commercial Division
Toll free: 1300 135 399
For clients with speech or hearing impairments contact National Relay Services on 133677 and then ask for 1300 135 399
www.ncat.nsw.gov.au

Legal practitioners

The Office of the Legal Services Commissioner (OLSC) in NSW receives complaints about solicitors and barristers in NSW. It also oversees the investigation of complaints about the conduct of practitioners and plays a major role in resolving consumer disputes.

Office of the Legal Services Commissioner
Ph: (02) 9377 1800
Toll free: 1800 242 958
People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.
www.olsc.nsw.gov.au

Medical practitioners or other health professionals or organisations

The Health Care Complaints Commission (HCCC) receives and deals with complaints involving individual health practitioners, such as doctors, optometrists and acupuncturists, and health service organisations, such as hospitals.

Health Care Complaints Commission
Toll free: 1800 043 159
TTY: (02) 9219 7555
www.hccc.nsw.gov.au

Disability or Home and Community Care (HACC) service providers

The NSW Ombudsman may assist to resolve, or investigate, a complaint made about a disability or HACC service provider, a government service provider or a licensed boarding house that has acted unreasonably in the way they provide or manage a service to someone.

The NSW Ombudsman
General inquiries: (02) 9286 1000
Toll free: 1800 451 524
People who are Deaf or hard of hearing use the national relay service to contact us call: 133 677.

People with speech impairments use the national relay service speak and listen service 1300 555 727.
www.ombo.nsw.gov.au/

General resource

www.ombo.nsw.gov.au/complaintsThis form provides links to other complaint handling bodies that deal with various problems that you may have with a government or non-government agency.

 

38 'Substitute decision-making is a last resort.' See page 42.
39 , 40 & 41 Multicultural NSW has information about interpreters on their website : www.multicultural.nsw.gov.au , select 'Services', click on 'Interpreting and translation' and 'Fact sheets'. Or call Multicultural NSW on 1300 651 500.
42 See Section 3 'Who might assess capacity - What if there are still doubts about capacity?' on page 56.