Capacity Toolkit

Checklist Overview

Introduction Purpose Guidance (not legal advice) Definition of capacity Legal test for capacity

Key Practice Points Presumption of capacity Capacity is decision/time specific Assess the ability NOT the decision Supported decision making Substitute decision making Tikanga Māori & cultural diversity Form of assessment Who should carry out assessments

Capacity Assesment Overview Preparing Assesment Interview After the Interview

The Legal Framework Overview Mental capacity law Relevant legal test PPPR Act : capacity thresholds Activating EPOAs HDC Code: capacity to consent to treatment Right 7(4) of the HDC Code Capacity to make a Will Refusal to undergo assessment

Useful Resources Legal resources Education video Cultural competence International guides to assessment Authors & Acknowledgments

CHECKLIST FOR ASSESSING CAPACITY

This toolkit is a clinical, legal and practical guide for health practitioners (clinicians) when assessing an adult’s capacity to make decisions. The checklist is a summary of the toolkit. It is intended to assist clinicians who do capacity assessments infrequently.

KEY PRACTICE POINTS

A person is presumed to have the capacity to make a decision unless there are good reasons to doubt this presumption.
In general, capacity is assessed with respect to a specific decision at a specific time.
Assessment is of a person’s ability to make a decision, not the decision they make. A person is entitled in law to make unwise or imprudent decisions, provided they have the capacity to make the decision.
Supported decision-making involves doing everything possible to maximise the opportunity for a person to make a decision for themselves
Capacity assessment procedures need to consider tikanga Māori and cultural diversity.

LEGAL TEST FOR CAPACITY

A person lacks capacity if they are unable to:

understand the nature and purpose of a particular decision and appreciate its significance for them;
retain relevant, essential information for the time required to make the decision;
use or weigh the relevant information as part of the reasoning process of making the decision and to consider the consequences of the possible options, (and the option of not making the decision); or
communicate their decision, either verbally, in writing, or by some other means.

CARRYING OUT A CAPACITY ASSESSMENT

Stage One: Preparing for the Assessment

Triggers: why is this person’s capacity being questioned now?
Decision: what is the capacity decision to be assessed?
Legal test: what is the legal test against which capacity is to be assessed, under the PPPR Act or other laws? (for example, “wholly” or “partly” lacking capacity)
Gathering Information: do you have all the relevant informationabout the decision, including the circumstances and details of the choices available?
Medical history: does the person have a medical condition that impairs their capacity and does this need treatment before the assessment can be done?
Support measures: what can be done to assist the person to make the decision?
Cultural considerations: is cultural support needed?
Where and when: what is the best time and place for the assessment?

Stage Two: The Assessment Interview

Engagement: have you explained who you are and the purpose of the assessment?
General health and cognition: what is the person’s mental state? Is there a medical condition that is currently active and is impairing the person’s cognitive function? If so, can you measure its severity using a cognitive screening test?
Legal test: have you asked questions to determine whether the person is able to understand, retain, use or weigh the information or, communicate the decisionsby any means?

Stage Three: After the Interview

Decide: do you have enough information to decide if the person has capacity or not: is a second interview necessary?
Communicate: have you told the person, and where appropriate their family, the outcome of the assessment?
Document: have you recorded your reasons in the person’s clinical records that the person has or lacks capacity for a particular decision? Is a medical certificate or report required?