Supported capacity is the second principle of the Mental Capacity Act (2005). It directs that all reasonable adjustments should be provided to support the individual to make an informed decision. This is further echoed in associated legislation of the Equality Act (2010) and the Care Act (2014) in terms of empowerment.
Support may include, but is not limited to:
- Sensory needs – ensuring hearing aids are working, glasses are available (etc.) as appropriate to the person’s needs.
- Grading of communication – considering conciseness, open and closed questions etc.
- Environment – where the assessment takes place.
- Time of day – including whether breaks are needed.
- Advocacy – is an advocate or other suitable person required to help support them in their understanding?
- Language – is a translator or interpreter required?
- Technology – are low- or high-tech aids required? e.g. talking mats, PECs, Makaton symbols, eye gaze, augmentative technology etc.
- Specialist support – is a specialist such as a Speech and Language Therapist required to support?
Supported capacity in case law
In the case of Oldham Metropolitan Borough Council vs KZ (2024, EWCOP 72, T3) held before Mrs Justice Theis, it was found that basic fundamentals of supported capacity were missed, including the provision of an interpreter and/or suitably qualified assessor. This not only undermines the MCA’s requirement for ‘reasonable adjustments’, but also directly infringes upon the individual’s basic human rights, leading to false outcomes, and restricting the individual’s autonomy.
This case is essential reading for anyone working in this field, reminding us of our fundamental responsibilities and duty of care in practice.