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

DEFINING CAPACITY

Decision-making capacity (or simply, “capacity”) refers to a person’s ability to make decisions. Examples range from simple decisions about what to have for breakfast, to whether to go to the doctor when feeling ill, to far-reaching decisions about serious medical treatment or financial matters.

In New Zealand legislation, both “capacity” and “competence” are used interchangeably. In a clinical context, “competence” tends to refer to the process of decision-making, and capacity to the legal term that is used. In this toolkit, the term “capacity” is used throughout.

Deciding whether a person has the capacity to make a particular decision has legal implications and in some cases may need to be determined at a court hearing. A capacity assessment is part of the evidence that informs the legal decision. There are legal tests which are applied to determine whether a person has capacity to make specific decisions or whether someone else or the court, a substitute decision-maker, should make decisions for them.