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

RIGHT 7(4) OF THE HDC CODE

Where a person lacks capacity for consent and there is no authorised decision-maker, Right 7(4) sets out the legal position for providing services to them.

Right 7(4) provides that if a person is not competent to make a particular personal care and welfare or treatment decision, and they do not have a an EPOA or welfare guardian (or the EPOA or welfare guardian is not available), services can be provided or treatment given if it is in the best interests of the person. Clinicians are required to follow the steps in Right 7(4) in reaching a decision, including taking into account the views of the person, or where these are not possible to ascertain, the views of other suitable people interested in the welfare of the person.

The use of Right 7(4) is most appropriate where decisions need to be made in the short-term and should not be relied upon for ongoing decision-making regarding longer-term care and treatment. In these circumstances, those involved with these decisions should consider making an application to the Court for orders under the PPPR Act.