The following points, in conjunction with applicable laws, rules and policies, should guide accommodation policies and practices when determining the capacity of an individual who has a speech, language, communication and / or cognitive disability:
- Mandatory training for all capacity assessors on recognizing and accommodating the needs of people with speech, language, communication and/or cognitive disabilities.
- Acknowledgment that an individual’s way of communicating should not be grounds for determining their capacity to make decisions.
- Understanding that people who have disabilities that affect their speech, language and/or cognition have a right to the supports they need to communicate and/or make decisions that matter to them regardless of whether they make decisions independently, with support from trusted people or rely on someone who knows them well to make decisions on their behalf, based on their known will and preferences.
- An individual who has a communication disability may or may not require support to make a decision. If a supported decision-making arrangement is required, communication supports are integral to the process.
- Communication supports include policies, practices, tools and assistance that an individual may require in one or more areas of understanding spoken and/or written information; retaining information; problem-solving, weighing up risks, consequences and making decisions; expressing questions opinions, preferences and decisions.
- Communication supports must be in place before a person’s capacity is determined and throughout the process of decision making to ensure their opinions and preferences are heard and acknowledged.
- Alternate decision making arrangements and guardianship should not be considered unless ALL effective communication and/or decision-making supports have been put in place.
- Engagement of a Speech-Language Pathologist may be required to ensure that an individual has the communication supports they need throughout a hearing in the areas of:
- Identifying and providing an individual’s communication support needs for effective two-way communication
- Determining and confirming an individual’s understanding of critical information
- Ensuring authenticity and accuracy of an individual’s expressive communication
- Providing communication assistance if there is evidence of a conflict of interest, undue persuasion or coercion from support person(s)