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

Tikanga Māori and Cultural Diversity

There is a need to recognise cultural diversity, and in particular the rights of Māori as tangata whenua, in all aspects of clinical practice in New Zealand. This remains true when assessing capacity; culture, language, and religion are integral factors in how a person makes decisions and in what decisions they make.

Having respect for the needs, values, and beliefs of Māori is crucial when assessing capacity with Māori. Whanaungatanga provides a platform for capacity assessment and supported decision-making and is fundamental to culturally responsive practice.

Whakawhanaungatanga refers to the process of establishing what connections, either through family or other social relationships, exist between people. For Maori in particular, formal relationships such as that between the parties in a capacity assessment will be greatly enhanced if efforts are made to establish connections and relatedness at the outset, and if the assessment is conducted in a manner that is mindful of those connections. This is one way in which the mana and dignity of the person being assessed can be supported.

An example would be where a Māori elder has a stated preference to stay living in their home when the whānau believe the support of hospital care is needed. In such instances there may be tension between recognising the collective view of whānau and ensuring that the elder’s mana is accorded respect. Both aspects, and their interdependent nature, need to be understood.

In practice, carrying out capacity assessments requires clinicians to be culturally competent, especially if the person is from a different culture than the clinician. This involves knowing when and how to enlist the support or assistance from whānau and others to support the person through the assessment process.