Literature Review on Provision of Appropriate and Accessible ...

PAGE 189
A number of issues have been identified (Donnelly, 2008) that
require detailed guidance in the form of a Code of Practice, which should
accompany legislation in this area. These include:
• The proposed definition of capacity is too open-ended; decisionmakers
have very little guidance in developing and applying the
test for capacity in individual cases.
Support to People with an Intellectual Disability who are
Accessible
and Appropriate of Provision on <strong>Review</strong> <strong>Literature</strong>
Experiencing Crisis Pregnancy
• Interpretation of the principles within the Scheme of Mental
Capacity Bill 2008, and their application in practice; for example,
Principle (c) states that ‘a person shall not be treated as unable
to make a decision unless all practicable steps to help him or
her to do so have been taken without success’. [91] While the
intention here is to provide supported decision-making, the
kind and level of support people will need to help them make a
decision needs further guidance.
• Further guidance is needed on what should be considered when
trying to work out the best interests of a person who lacks
capacity to make a particular decision.
6.4 International good practice in capacity assessment
Elements of good practice in assessing capacity to consent to treatment
were identified from other jurisdictions:
• A functional approach to assessment of capacity (used in most
jurisdictions), where capacity is decision-specific and timespecific
rather than global or permanent. Before any declaration
of incapacity, consideration needs to be given as to whether it
would be possible either to improve the person’s relevant
functional abilities and/or to simplify or otherwise amend the
situation to improve the person’s capacity.
• Entitlement of people to receive information that is appropriate,
relevant and through such channels as enable them to make a
decision about their healthcare. The right to comprehensible
91 See Section 2.5.1 for a full list of the Guiding Principles in the Scheme of Mental
Capacity Bill.