Competency Assessment

Competency and Capacity Capacity/Competency –Legal, clinical, ethical and social construct –“Ability of an individual to make autonomous choices” –Task specific –May vary over time –Not diagnosis dependent –Culturally mediated

Why Assess Competency Expertise –Some older people, particularly those with cognitive impairment are likely to lose capacity to perform tasks and make decision –Medico-legal expert in evaluation of cognitive disorders and associated risks Duty of care –Those who lose capacity may become vulnerable to abuse or neglect –Those who lose capacity may place themselves or others at risk

When are we asked to assess competency? Impaired ability to communicate Disorder of brain or mind which it is suspected will impair decision making abilities (not just dementia: depression psychosis mania intellectual disability) Person judged to be making unwise decisions Person is at risk of harm Undue influence/Abuse

Definitions of Capacity Appelbaum and Grisso –1)ability to express choice –2)ability to understand relevant information –3)ability to appreciate the significance of information for one’s own situation –4)ability to reason with relevant information so as to engage in a logical process of weighing options –Appelbaum TS, Grisso P. N Engl J Med 1988: 319;

A capable person (5 Cs) knows the context of the decision at hand knows the choices available appreciates the consequences of specific choices is consistent in their decisions can communicate their decisions

Autonomy “self” and “law” "one who gives oneself their own law") it refers to the capacity of a rational individual to make an informed, un-coerced decision. Self-determination.

Autonomy Presumption of competence. A person is assumed competent until proven otherwise. The autonomy of a competent person must be respected This is often at odds with the principle of Benificence or “doing good”

Preservation of Autonomy PPPR Act Section 8 (a) To make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person's incapacity: (b) To enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible.

Sliding Scale of Capacity Assessment (Shulman 2007)

PPPR Act Duties and responsibilities of welfare guardians / property managers /attorneys –To act in the subject persons best interests –Allow subject person to exercise capacity to the greatest extent capable –To act in good faith and with due care –Liability –Reporting requirements –Integrate into the community as much as possible –Consult with the person

PPPR Act Enduring Power of Attorney – –Property – –Welfare Welfare Guardianship Orders (S12) Property Management Personal Orders S10)

Types of order Section 10 (1) a-k personal orders of specific types (including) –d) enter,attend or leave an institution (other than a psychiatric hospital –e)be provided with living arrangements specified –f) be provided with medical advice or treatment

Types of order cont Section 10 cont –g)educational, rehabilitative or therapeutic or other services –h) that a person shall not leave the country –j) that a person named in section 11 may administer an item of property

Welfare Guardianship Section 12 (2) A Court shall not make an order under subsection (1) of this section unless it is satisfied— (1) (a) That the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and (a) That the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and (b) That the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person. (b) That the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person.

Powers of Attorney (a) In relation to property, if the donor is not wholly competent to manage his or her own affairs in relation to his or her property; or (b) In relation to personal care and welfare, if the donor— (b) In relation to personal care and welfare, if the donor— (i) Lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or (i) Lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or (ii) Has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters (ii) Has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters

Powers of Attorney Legal instrument appointing person to make decisions on the donor’s behalf Must be made on prescribed form Formal witnessing procedure including requirement to assess donor’s capacity to appoint attorney. Must be signed by the attorney May specifiy when activated ( property) Specifies type of person to evaluate mental capacity

Powers of Attorney For welfare can be only one person but may specify who can take over For property can be more that one person For property can be more that one person Requirements to act in the person’s best interests Requirements to act in the person’s best interests Requirements to encourage donor to develop and exercise capacity

Powers of Attorney Potentially 2 points at which decision making capacity needs to be assessed –When the document is drawn up, or the Attorney appointed –When the Attorney needs to start exercising their powers – ie when the donor has become partly or wholly incompetent with respect to welfare or property

Specific Decisions:Appointing an EPOA A legal document which appoints someone to make decisions for them 2 kinds of EPOA/ separate documents How many attorneys What kinds of decisions are covered When it is activated ( when is it likely to be activated); when it can be revoked. Who has final say once activated Who is the proposed attorney and reasons for choosing that person vs others Monitoring provisions