What are the Act’s basic principles?
The Act sets out a number of basic principles that must govern all decisions made and actions taken under its powers. These are rooted in best practice and the common law and are designed to be fully compliant with the relevant sections of the Human Rights Act. Where confusion arises about how aspects of the Act should be implemented, it can be extremely helpful to refer back to them.
Actions or decisions that clearly conflict with them are unlikely to be lawful, although there may be occasions on which they are in tension with each other, and some balancing will be required. A list of the principles, with brief descriptions, is given below. Further information about best interests comes later in the tool kit.
A presumption of capacity
It is a fundamental principle of English law that adults have the right to make decisions on their own behalf and are assumed to have the capacity to do so, unless it is proven otherwise. The responsibility for proving that an adult lacks capacity falls upon the person who challenges it.
Maximising decision making capacity
Closely linked to the presumption of capacity, this states that everything practicable must be done to support individuals to make their own decisions, before it is decided that they lack capacity. For example, advocates and communication support might be necessary, and consideration should be given to whether an individual’s capacity is affected by the time of day or medication regimes. The aim is to ensure that individuals who are capable of making decisions for themselves, but may need some support, are not inappropriately assessed as incapacitated.
The freedom to make unwise decisions
The fact that an individual makes a rash, unwise or irrational decision, or begins to act out of character, is not itself proof of incapacity. All adults retain the right to make decisions which to others might seem unwise or irrational. Although such actions may raise questions about capacity – where for example they follow a period of illness or an accident – they are in no way determinative. What matters is the ability to make the decision, not the outcome.
At the heart of the Act lies the principle that where it is determined that individuals lack capacity, any decision or action taken on their behalf must be in their best interests.
Practically speaking, what constitutes an individual’s best interests will depend upon the circumstances of each individual case. Particular regard must however be given to any statements of current or prior wishes or feelings expressed or made by the individual.
The less – restrictive alternative
Whenever a person is making a decision on behalf of an adult who lacks capacity, he or she must consider if it is possible to make the decision in a way that is less restrictive of that individual’s fundamental rights or freedoms. There are often several ways to achieve a desired outcome, and where possible the choice must be the one that interferes least with the individual’s freedoms while still achieving the necessary goal. The option chosen must, however, be in the person’s best interests, which may not in fact be the least restrictive.
Card 3 (PDF)