Supported decision-making

Throughout our lives, we make decisions about how we live – from important decisions with serious implications to less significant, day-to-day choices. Everyone has the right to make their own decisions about matters that affect their lives.

Decision-making is a cognitive process, which means that for any decision, our brains work through a sequence of steps before arriving at a conclusion. Some people can make decisions completely on their own. People who don’t have the legal capacity to decide things for themselves may need a substitute decision-maker to decide for them. Substitute decision-making has largely been the only option for people without capacity, but there is another alternative that may be suitable: ‘supported decision-making’.

What is supported decision-making?

Supported decision-making is when one person provides another with the help they need to make their own decisions. It recognises that decision-making is a process with multiple steps and that a person may be able to complete some, but not all, of the steps on their own.

Supported decision-making is important because it helps to protect the person’s rights, respects their autonomy and dignity, and ensures their choices align with their values and best interests. Wherever possible, it should be used in preference to substitute decision-making, which is an effective option for people with no decision-making capacity.

The cognitive process of decision-making

Have you ever thought about the process you go through when you make a decision? While many decisions look like simple ‘yes or no’ choices, even seemingly minor decisions actually involve a series of steps. The typical decision-making process goes like this:

1. Identify and understand what the decision is. First, make sure you’re clear on what it is you need to decide, how significant the decision is and what the effects will be. For older Australians, a decision may relate to health care, lifestyle, social activities and relationships, finances, household administration or many other matters.

2. Gather relevant information to inform the decision. Before you can choose between options, you need to know what those options are. Do some research, if necessary, to identify your alternatives and learn more about each one.

3. Weigh up the options and their risks and benefits. Consider the pros and cons of each option and whether they line up with your current preferences, priorities and values.

4. Make your choice. Having considered the information, decide which option suits you best.

5. Implement the decision. Next, put your decision into action: do what’s necessary to attend the medical service you selected, make the purchase, sign and submit the form, or close the account.

6. Monitor and review the decision. Look at how effective your decision is and whether it ends up achieving what you wanted. Over time, you may want to change your decision completely, adjust it slightly, or leave it in place.

For various reasons, people may be able to manage some of these steps, but not others, when trying to make a decision. The steps that they find challenging may vary depending on the kind of decision they need to make – what it’s about or how important the decision is, for example.

That’s why it’s important that any decision-making support is given flexibly, patiently and appropriately for the particular decision.

When supported decision-making could help

Here are some examples of decision-making challenges and possible solutions.

• A person understands the decision they need to make, but they are unable to gather the relevant information – perhaps they find internet searching confusing, or they are not skilled at reading.

  • A family member helps them find the right information in a suitable format – either online, over the phone, in writing, from a professional service or library or website.

• A person has been provided with appropriate information, but they can’t fully understand it or the implications of the decision – perhaps English is not their first language, or they are experiencing the early stages of dementia.

  • A translation service or bilingual friend helps them understand the information in their preferred language, or their partner attends a medical appointment with them to write down what the doctor says.

• A person can make their own decision, but they have difficulty putting it into action – perhaps they no longer have a driver’s licence to get to the bank, or a medical condition prevents them from using the phone to close their account.

  • A neighbour drives them to the bank or sits with them at their home and makes the call using the phone’s speaker option.

• A person has made their decision and put it into action, but they lack the ability to monitor and review its performance – perhaps they find the processes involved in reviewing the decision confusing.

  • Their partner or professional service monitors the decision’s progress, keeps the person informed and asks them whether they’d like to make any changes.

About decision-making capacity

‘Capacity’ (or ‘legal capacity’) is a term often used when talking about a person’s ability to make decisions for themselves and understand the consequences of those decisions.

Unless something has happened to remove or diminish this ability, people aged over 18 are usually considered legally able to make every decision, big and small, for themselves and to accept the consequences of these decisions. This is called ‘having capacity’.

The loss of decision-making capacity is not always total. You might hear the term ‘impaired capacity’, which refers to the partial ability to make decisions. This is why supported decision-making is such a valuable way to ensure a person’s autonomy and control is maintained.

Read more about this in our Having Capacity webpage.

How to support someone with making decisions

If you are providing decision-making support, your personal preferences, opinions and values must not be imposed on the process. Remember that the decision is the person’s, not yours.

Keep in mind:

• their rights – they have the right to make their own decisions, change a decision, take risks, even to make mistakes

• their control – the person should retain ownership of the decision-making process

• their dignity – you must listen to their wishes, allow them to take the lead and express any preferences or concerns

• respect – you don’t have to agree with the person’s final decision, but you must respect their personal values, experiences, goals, cultural and spiritual beliefs and values

• inclusion – the person should be able to participate actively in the decision or be kept informed of progress

• flexibility – you should be prepared to change direction if the person being supported wants to change their mind about any aspect of the decision-making process.

As you provide the support, encourage the person to participate in making their decision and tell you what they want. Their friends, family or care professionals might have information that backs up the person’s preferences or confirms their decision. It’s a good idea to write down everything involved in helping the person make their decision, the details of the final decision, and notes about how and when the decision was put into action.

Whether an older person makes their decisions independently, with support or through a substitute decision-maker, it’s important for everyone to understand that any undue influence, pressure and coercion on their decisions may constitute elder abuse.

‘Undue influence’ is a legal term that means someone exerting pressure or control over someone else to make them act against their free will or judgement. It usually happens when one person in the relationship has more power than the other person.

Coercion involves one person intimidating or bullying the other for the same purpose: to influence what they choose to do.

If you’re not sure what elder abuse is and what behaviours count as abusive, read our What is elder abuse? webpage.

Who can support someone’s decision-making?

A decision-making supporter could be almost anyone that the older person knows well, such as a family member, friend or professional such as their doctor or financial planner. Care providers and advocacy services could also assist. The main thing is that the older person trusts the supporter deeply, which generally comes from knowing each other well.

The process of making a decision could get complicated if the supporter has any kind of vested interest in the matter being decided. They need to be able to recognise whether they will be able to act objectively or whether someone else without an interest would be a better supporter for that decision.

Future planning tools like guardianship orders, medical directives and Advance Care Plans can be a formal way to appoint decision-making supporters. Informal appointments generally happen within relationships, such as the adult children of an older person helping.

Laws and principles for supported decision-making

The legal framework for supported decision-making across Australia’s states and territories is most often embedded in legislation about other matters, such as guardianship, aged care or the rights of people with an intellectual disability. This can make it harder for older people and their supporters to find information. Our Resources section at the bottom of this webpage may be helpful.

Currently, no Commonwealth legislation embeds supported decision-making into Australian law. However, in 2014 the Australian Law Reform Commission (ALRC) recommended that four National Decision-making Principles be introduced.

The proposed principles came out of the ALRC’s inquiry into equality, capacity and disability in Commonwealth laws. The ALRC used the terms ‘supporters’ and ‘representatives’ to refer to the two parties involved in supported decision-making. The principles form a good basis for putting supported decision-making into action in any state or territory.

• Principle 1: The equal right to make decisions. All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

• Principle 2: Support. Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

• Principle 3: Will, preferences and rights. The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

• Principle 4: Safeguards. Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

If you’re interested in finding out more about the principles, read the ALRC Report 124, section 3 (particularly Principle 2: Support).

The concept of supported decision-making is also endorsed in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities.

Resources

Here are a few helpful resources. You will find more in the Resources section of Compass. Select the topic, Supported Decision-Making.

• Cognitive Decline Partnership Centre, University of Sydney, Supported decision-making: a guide for people living with dementia, family members and carers booklet (2018, PDF file, 2.2KB), available on the Centre’s website

• Older Persons Advocacy Network (OPAN), ‘Supported decision-making’ webpage

• Victoria: Office of the Public Advocate, Side by side: a guide for people wanting support to make decisions booklet (2018, PDF file, 4.7MB), available on the Public Advocate’s website

• Victoria: Office of the Public Advocate, Supported decision-making in Victoria booklet (2020, PDF booklet, 908 KB), available on the Public Advocate’s website

• New South Wales: Trustee and Guardian, ‘Supported decision-making and capacity’ webpage

• Queensland: Public Advocate, ‘Decision making support’ webpage

• South Australia: Office of the Public Advocate, ‘Supported decision-making’ webpage

• Western Australia: Department of Communities, ‘Supported decision-making’ leaflet (2021, PDF file, 146 KB) available from the department’s website

• Australian Capital Territory and southern New South Wales: ADACAS Advocacy, ‘Supported decision-making’ webpage

Disclaimer: The information provided on this website is not a substitute for individual legal advice.