Everyone has a right to exercise their own legal capacity.  You may import into this that everyone has a right to make one’s own decisions, or take action on those decisions, as far we are able. 

The requirement to support a person to exercise legal capacity comes from the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The Convention sets out a framework for the respect, as a nation who has ratified the Convention, we are expected to show a person with disability*. Disability includes a person with an intellectual disability, cognitive or volitional impairment.

In supporting a person to make an autonomous decision, one needs to be alert to the myriad of things which impact on anyone’s ability to make a decision. For example

- Their experience and confidence with decision making.
- Their understanding of the issue and decision to be made
- Their mood and emotion
- The time of day
- The environment

This list is by no means exhaustive, indeed the number of factors which impact on decision making is extensive, but even in such an abbreviated list there is sufficient to demonstrate just how wide the factors are which influence one’s ability to make a decision. Things get even more complex when one ‘overlays’ some of the issues that may be specific to a person’s medical condition.

Supporting Decision Making

So how do you support someone in their decision making?

Preparation

You should prepare, to consider how best you can make this an effective interaction. You may need to visit the person ahead of the actual decision to be made, for instance to open a relationship, provide information, gain a better understanding of the situation.

Consider what if anything you need to do to get to an optimal position on any of the factors which may impact on the person’s ability to make a decision.

Are you, and the person, clear about the decision to be made? You may need to seek clarification.

Ensure you take time. We can feel constrained in our ability to make a decision if we feel under pressure.

Your approach

Think about your approach, for example

- Stay calm
- Use touch
- Maintain eye contact, be on the same level as the individual
- Remain objective
- Speak at a steady rate and normal volume
- Listen actively, be observant
- Be alert to the person’s emotions, acknowledge these.

The process

- Break the matter into ‘bite sized chunks, offer the person choices/options.
- Use drawings, pictures, recordings etc if this will be better for the individual than words, or will complement the words.
- Writing down choices can assist
- Will past examples assist?
- Can someone else help?
- Can it wait?

    These ideas offer a flavour only of things which may assist.

    Supporting decision making may seem intuitive, but when one knows a person well it can be quicker to simply make the decision you know they would have made, or decide for yourself what is right for them. To support the person to make their own decision can be a challenge, can seem unnecessary and unnecessarily time consuming, but remember to make our own decision on a matter which affects us is a right we all have and one which we are obliged to promote.

    * A recent report (March 2021) of the National Taskforce on Human Rights leadership has recommended, amongst other things, that the UNCRPD should be incorporated into Scottish law. If this gets accepted, this means that the current obligation to respect the UNCRPD will become a legal requirement. A person would be able to take legal action to enforce the rights granted by the UNCRPD if they felt due regard was not being paid to these.

    This is an abridged article on what is a very extensive topic, please feel free to contact the author Sandra McDonald [email protected] if you wish more information.