> For the complete documentation index, see [llms.txt](https://avid-detention.gitbook.io/avid-handbook/llms.txt). Markdown versions of documentation pages are available by appending `.md` to page URLs; this page is available as [Markdown](https://avid-detention.gitbook.io/avid-handbook/safeguards/what-can-visitors-do/supporting-people-where-there-are-concerns-about-their-decision-making-capacity.md). # Supporting people where there are concerns about their decision-making capacity As is outlined in more detail in [The Mental Capacity Act 2005](/avid-handbook/safeguards/policy-and-practice/the-mental-capacity-act-2005.md), mental capacity denotes concerns about someone’s ability to make informed decisions by being able to do each of the following; understand information, retain information, weigh up information and communicate a decision. If you have concerns about visiting a person who does not seem to understand you (for reasons not related to language barriers), then you need to consider whether they might not have decision-making capacity. Visitors are not responsible nor qualified for assessing whether someone has decision-making capacity however they can play an important role in identifying initial concerns and making further referrals for support. This can be a very difficult issue to identify when working with people who are vulnerable, in high-stress environments (such as detention) and those who may have English as a second language. This is also something that can emerge from spending more time with a person as you get to know them better. Some factors that might raise concern would include: * If the person never or rarely asks you follow up questions; * The questions they have suggest they have not understood; * They quickly forget things they were told moments earlier; * They say things that are difficult to make sense of. It is not possible to be prescriptive about what issues can trigger concerns and there could be reasons other than lacking decision-making capacity for the factors outlined above, not least the impact of being detained. It is also important to remember that decision-making capacity varies with the decision in front of the person and can also fluctuate with time. If you have concerns, then your first step should be to talk to your group co-ordinator and AVID for more advice. Other steps that you can take are: * If the person has a legal representative, you should ask them for their agreement to contact their lawyer to explain your concerns. * Make a referral (with the person’s consent) to [Medical Justice](https://medicaljustice.org.uk/make-a-referral/) for further support and an assessment from an independent clinician. * Keep a written record of the reasons why you are concerned that the person you are visiting has not understood you, which you update each time you have contact with the person. You are not expected to be a clinician or to make any sort of diagnosis, the record should just be a simple factual account of what happened. * Read more about the policy and process for people lacking capacity in detention in this section of the handbook: [The Mental Capacity Act 2005](/avid-handbook/safeguards/policy-and-practice/the-mental-capacity-act-2005.md). Where you have concerns about a person’s decision-making capacity then this is a situation where the usual rules about confidentiality may not apply. However, this is a highly unusual situation so you should seek support from your group co-ordinator or AVID first and keep a written account as you go along, explaining each of the actions you have taken and why you thought they were necessary. #### Considerations for being a litigation friend Where a person lacks capacity in their legal case then another person can be appointed by the court to take the decisions in that case in their place. This person is known as a ‘litigation friend.’ In essence the litigation friend has contact with the person’s legal representative, listens to the legal advice and instructs the lawyer on behalf of the person without capacity. Normally litigation friends are the person who lacks capacity’s family or close friends. Since people in detention are often isolated and may not have family or other people who can act as a litigation friend, occasionally visitors can be asked to fulfil this role. If you are asked to help in this way, then the first step is to discuss this with your group coordinator and you can also discuss the situation with AVID too. There is no obligation on you to agree and there is a [separate service](https://www.gov.uk/government/organisations/official-solicitor-and-public-trustee/about) that will act as litigation friends for people where there is no one else who is willing to take on this role. Before agreeing, it is also important to be aware of the level of commitment involved and ensure that this is something that you are comfortable/able to do. When accepting the role of being a litigation friend, key things to consider: * You are likely to be involved in telling the detained person what is happening in their case and may be asked to relay their views to their legal representative. This can involve managing extra contact with people in detention after release. * You will need to think about when you are in contact the detained person, how you will manage boundaries between offering emotional support and providing information about their legal situation, whilst being careful that you do not take on the lawyer’s role of giving legal advice. AVID can also help talk this issue through with you. --- # Agent Instructions This documentation is published with GitBook. GitBook is the documentation platform designed so that both humans and AI agents can read, navigate, and reason over technical content effectively. 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