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

FORM OF ASSESSMENT

There are broadly two contexts in which clinicians assess capacity:

Informal assessments: These may often occur in the context of assessing a person’s capacity to give or refuse consent to medical treatment. They are narrowly focused on the knowledge of the relevant information, available options, and consequences, and on the reasoning and communication abilities of the person giving consent. These capacity assessments are often conducted “intuitively” or informally by clinicians, without recourse to courts or formal legal processes. The assessment by the clinician should still be documented in the person’s medical record.
Formal assessments: These are assessments that are required to provide an opinion (often with a medical certificate) under the adult guardianship law (PPPR Act) or for other legal proceedings, or for some other legal purpose. This type of assessment is intrinsically more formal. These capacity assessments are used to support, for example, the activation of an Enduring Power of Attorney (EPOA) or an application to the Family Court to appoint a welfare guardian, or they may take the form of advice to a lawyer or other professional on whether to accept a person’s capacity to make a certain decision, such as the making of a will.

Other more immediately practical decisions, such as the decision to move into supported accommodation, may also require a formal assessment of capacity. An important aspect of the assessment of capacity where a decision with long term consequences is to be made, is the likely cause of the incapacity and the probability of the person regaining their capacity to make decisions.

In many contexts, an intuitive assessment, which is the type of assessment most commonly used in medical practice, is not accurate enough and will not withstand legal scrutiny, for example when assessing a person’s capacity to make a will or to gift significant assets.