What is Supported Decision Making?

Like everyone, people with a decision-making impairment can benefit from support when making decisions.

Providing support or making reasonable adjustments to meet a person's needs can help them to make their own decisions and have decision-making independence.

Supported decision-making allows you to help someone to make their own decisions so they can maintain choice and control over the things that impact and are important to them.

This video from the New South Wales Trustee and Guardian helps to explain supported decision-making. The Office of the Public Guardians thanks the NSW Trustee and Guardian for permission to use this video.

Decision-making ability is the capacity to make your own life decisions by:

• understanding the situation, facts or information about a decision
• understanding the choices available
• understanding what will or could happen from making a decision
• using reason to weigh the risks and benefits of a decision
• being able to clearly communicate consistent decisions

What is impaired decision-making ability?

'Impaired decision-making ability' is a term that can often cause confusion because a person's decision-making ability is time and decision specific, rather than a general state of being.

Everyone has the right to make decisions that affect their life. It is a basic human right and is how we live independently. The law presumes every adult has the ability to make their own decision, which means you can't assume someone has impaired decision-making ability without sufficient evidence.

A person may be determined to lack decision-making ability if they are unable to:

• understand information relevant to the decision, or
• retain information relevant to the decision, or
• use or weigh information relevant to the decision, or
• communicate the decision (whether by speech, gesture or other means)

What is the formal definition of decision-making ability?

The Guardianship and Administration Act 1995 defines an adult to have decision-making ability if they are able to:

• understand information relevant to the decision, or
• retain information relevant to the decision, or
• use or weigh information relevant to the decision, or
• communicate the decision (whether by speech, gesture or other means)

If an adult can't do at least one of these things regarding a decision, they do not have the ability to make that decision.

An adult does not have impaired decision-making ability merely because:

• the person has a disability illness or other medical condition
• they are unable to understand technical or trivial matters
• they do not have a particular level of literacy
• they can only retain information relevant to the decision for a limited time
• they have decision-making ability to make some decisions and not others
• the decision is viewed as unwise by other persons
• the person requires practical and appropriate support in order to make or communicate the decision

Some important points about decision-making ability

An adult can have the ability to make decisions about some things but not others

Someone can have the ability to make decisions about relatively simple things such as what to buy for dinner but not for more complicated issues such as taking out a new internet plan or consenting to have surgery.

Physical appearance isn't an indication of loss of decision-making ability

Just because someone is old, disabled or appears disheveled, does not mean they have lost decision-making ability. Similarly, factors such as anxiety, medication, drugs and alcohol can sometimes make it look like someone has lost capacity, but this may not be the case.

Unwise choices aren't necessarily a sign of impaired decision-making ability

We may not like someone's decision or think it's risky or reckless but it doesn't mean they lack decision-making ability. A person has the right to make a decision we don't agree with. After all, we all make bad choices and decisions from time to time.

Loss of decision-making ability isn't necessarily permanent.

Decision-making ability can fluctuate over time. For example, a person may be unwell due to illness but recover completely. While they are sick, they might have been unable to make decisions, but once recovered they may be fully able to manage their own affairs again. This is why a person's past ability should not lead anyone to assume they lack ability right now.

Who can clarify someone's decision-making ability?

If you are unsure about whether an adult has decision-making ability for a particular decision, an assessment by a health practitioner (such as a GP, geriatrician, neuropsychologist or psychiatrist) can be helpful to obtain an informed opinion about an adult's ability or impairment.

Sometimes there is a dispute about decision-making ability. This can happen in family conflict situations or there may be conflicting opinions or a need for a formal determination about an adult's decision-making ability due to various important decisions being required. Only the Tasmanian Civil and Administrative Tribunal (TASCAT) can determine an adult's decision-making ability. This will be considered at a hearing where a wide range of evidence will be given, including from the adult, other parties and any reports or information from health professionals involved with the adult.

The Office of the Public Guardian has no legal authority to make a formal declaration of an adult's capacity.

What could affect someone's decision-making ability?

If you are an adult, you are presumed to have the ability to make your own decisions unless it can be legally shown that you:

• lack decision-making ability due to medical conditions, including dementia, intellectual disability, brain injury or mental illness
• temporarily lack ability (for example during a coma following an accident)
• are able to make some decisions but not others

Does having a disability affect a person's decision-making ability?

Having a disability does not automatically mean that a person lacks decision-making ability. Many people with disability can make their own decisions with some guidance to:

• clarify issues and choices to help with decision-making
• help you make a specific type of decision