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What is capacity?
What is capacity?
When would a person lack capacity?
Who decides if the person lacks capacity?
Capacity and guardianship
Capacity and the Public Guardian
Capacity and consent to medical/dental treatment
Useful links
What is capacity?
Capacity is the ability to make decisions for oneself.
A person is said to have capacity when the person can go through the process of making his or her own decisions by understanding the information and choices presented, weighing up the information to determine what the decision will mean for him or her and then communicating that decision.
If a person is unable to follow this process and make his or her own decisions, that person is said to lack capacity.
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When would a person lack capacity?
A person may lack capacity due to a disability such as intellectual disability, dementia, brain injury or mental illness.
A person may lack capacity temporarily, for example during a coma following an accident, or a person may be able to make some decisions but not others.
For example. Tom has an intellectual disability. When Tom develops a toothache he goes to the dentist who explains to Tom and his father that his tooth is decayed and needs to be removed. With the support of the dentist and his father, Tom is able to understand what the proposed treatment will mean for him and provide his own consent to the treatment. However when Tom’s dentist recommends a general anaesthetic to remove a number of teeth, Tom is not able to understand the risks of the anaesthesia. Tom’s dentist assesses that Tom is not able to give consent for the treatment and talks to Tom’s person responsible instead.
Dr Peteris Darzins et al in Who Can Decide? The six step capacity assessment process (2000) describe the following types of capacity;
• Global Capacity - capable or incapable of all decisions
• Domain Specific Capacity - people may have capacity in one domain e.g. healthcare, but lack capacity in another e.g. finance.
• Decision Specific Capacity - within a particular domain there is a range of complexity of decision making. A person could be capable of making simple decisions but incapable of making complex decisions
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Who decides if the person lacks capacity?
People are assumed to have capacity to make their own decisions unless it can be demonstrated that they lack capacity.
Disability alone does not indicate a lack of capacity. A person with a disability may be able to make his or her own decisions without assistance. In some cases a person with a disability require assistance in clarifying issues and choices to enable autonomous decision-making.
Additionally, an eccentric lifestyle and poor or controversial personal decision making does not necessarily mean that the person lacks capacity.
We may not always agree with other people’s decisions. What must be determined is whether the person is simply making ‘bad’ decisions or whether he or she lacks capacity to make decisions.
The issue of capacity is a legal one. When there is disagreement about capacity an assessment should be sought to provide evidence about a person’s capacity. Such an assessment could be performed by a clinical neuropsychologist or other trained health professional, such as a geriatrician or psychiatrist. Listed below are some useful links to organisations involved in the assessment process.
For example:
Mrs Griffin appointed her daughters Jean and Susan as her enduring guardians. Three years ago Mrs Griffin developed dementia. Jean and Susan disagree about their mother’s capacity to make her own decisions in relation to the services that she receives at home. Jean believes her mother’s dementia has progressed so far that her appointment as her mother’s enduring guardian should now take effect and she should start making decisions on her mother’s behalf. Susan is concerned that they don’t act hastily, and while she acknowledges that her mother’s condition is getting worse she feels her mother can still make her own decisions. Jean and Susan request that Mrs Griffin’s doctor assess her capacity to make her own decisions. Following the assessment the doctor is satisfied that Mrs Griffin lacks capacity to make her own decisions about what services she needs. Susan is happy that the issue of Mrs Griffin’s capacity to make her own decisions has been properly investigated, and she and Jean begin making decisions as Mrs Griffin’s enduring guardians.
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Capacity and guardianship
The Guardianship Tribunal may make guardianship orders for people who lack capacity.
Enduring guardianship commences only when a person loses capacity.
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Capacity and the Public Guardian
The Guardianship Tribunal may appoint a private guardian or the Public Guardian to be the substitute decision maker for a person who lacks capacity.
The Public Guardian promotes a ‘decision-specific approach’ to decision-making and capacity. That is, if the Public Guardian considers, based on the evidence available, that a person under guardianship is able to make a particular decision for him or herself, the Public Guardian will not seek to make this decision for the person.
For example:
Mary is an older woman in the early stages of dementia. The Public Guardian has been appointed as Mary’s guardian with authority to make decisions regarding her services and medical and dental consent. Mary has little insight into her care needs and so the Public Guardian makes decisions on her behalf regarding the services she receives at home. Mary’s doctor informs the Public Guardian that Mary is able to understand and consent to the flu vaccination treatment that she has prescribed and therefore the Public Guardian does not need to provide consent on Mary’s behalf.
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Capacity and consent to medical/dental treatment
The Guardianship Act (Part 5, Section 33(2)) defines that a person is incapable of giving consent to the carrying out of medical or dental treatment if the person:
(a) is incapable of understanding the general nature and effect of the proposed treatment, or
(b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.
When a person lacks capacity to consent the treating practitioner must seek consent from the person responsible.
More information about medical and dental treatment and person responsible.
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Useful links
Search for a clinical neuropsychologist via the Australian Psychological Society.
Search for your closest Aged Care Assessment Team.
Search for your closest Mental Health Team.
Link to Attorney General’s roundtable discussion paper.
Link to the NSW Law Society's best practice guidelines for solicitors preparing an Enduring Power of Attorney. This information is available at the NSW Law Society's website. Please note that Enduring Powers of Attorney are different to Enduring Guardianship.
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