Respecting Care Recipients' decisions and managing providers' liability

2016


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What does capacity to make decisions mean?

Our right to make our own decisions is fundamental to our everyday existence. That includes the right to make decisions with which others may disagree or regard as silly. Equally, knowing when a person does not have the capacity to make a decision is just as crucial because a decision made without capacity can be invalid. A failure to properly assess and understand a person's capacity to make decisions can have significant adverse consequences both to the provider and the care recipient.

At the outset it is critical to know that there is a legal presumption that applies in decision making — the law presumes that every person has the capacity to make any decision for themselves unless there is evidence to the contrary. In aged care, this fundamental principle is crucial in a landscape where capacity to make decisions can be problematic.

There are many furphys associated with capacity to make decisions. The fact that a person has a mental illness, is idiosyncratic, different in their thinking, deaf or intellectually impaired, does not, in itself, mean that they are incapable of making a decision.

Complicating capacity is the fact that it is not necessarily a black and white picture. A person can have capacity to make some decisions but not others. Their capacity can vary from day to day or within a day. Capacity is determined against the type of decision to be made varying from the simple to the complex.

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