1. Assessment of Decision Making Capacity

2. 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

3. When are we asked to assess capacity?
Judged to be making unwise decisions
At risk of harm
Vulnerable to undue influence/exploitation
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)

4. 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;

5. The 5 Cs of Decision Making Capacity
know the context of the decision at hand
know the choices available
appreciate the consequences of specific choices
is consistent in their decisions
can communicate their decisions

6. Autonomy A person is assumed competent until proven otherwise
The autonomy of a competent person must be respected
Presumption of competence in respecting autonomy.

7. Thresholds
Thresholds for competency should vary based on the nature of the decision and the likelihood and magnitude of the consequences
Consequences of missing incapacity in a patient making a risky decision may be particularly severe
Patient’s decision
Risk / benefit ratio of treatment
Favourable
Unfavourable
Consent
Low test of competence
High test of competence
Refusal

8. Sliding Scale of Capacity Assessment (Shulman 2007)

9. NZ Protection of Personal and Property Rights (PPPR) Act 1988
Helps people who have lost the capacity to make or understand decisions about their own personal affairs or property, or who can no longer tell other people what they’ve decided.
Enduring Powers of Attorney
Property Managers
Welfare Guardians
Personal Orders

10. Preservation of Autonomy 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.

11. 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

12. Types of order
Section 10 (1) personal orders of specific types (including)
enter,attend or leave an institution (other than a psychiatric hospital
be provided with living arrangements specified
be provided with medical advice or treatment
educational, rehabilitative or therapeutic or other services

13. Types of order cont that a person shall not leave the country
administer property – less than $5000

14. Welfare Guardianship Section 12
(2) A Court shall not make an order under subsection (1) of this section unless it is satisfied—
(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.
Only one person can be appointed

15. 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

16. 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
Requirements to act in the person’s best interests
Requirements to encourage donor to develop and exercise capacity

17. Powers of Attorney
For welfare requires health practitioner report of incapacity for acting on “significant matters”
Reasonable grounds for believing incapable on “other matters”
For property, can become active before a person loses capacity or when they are only partially incapable

18. 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 is the proposed attorney and reasons for choosing that person vs others?

19. Specific Decisions: Testamentary Capacity
Banks and Goodfellow Criteria:
Nature of a will
Nature and extent of assets
Natural beneficiaries
Impact of distribution of assets
Confirmation that the testator is free from delusions influencing distribution of assets
Ability to express wishes clearly and consistently in an orderly plan of disposition

20. Assessments Be clear of your mandate to assess
reasonable grounds for believing that an assessment is required / sought, application being made
More stringent and ideal is letter of instruction from solicitor or court
Why has the issue of competence arisen at this time?
Who is instructing you to prepare the report?
The subject person’s solicitor
The applicant

21. Assessments Be clear what aspect(s) of competency you are assessing
What is the decision that the person needs to make?
Eg appointing an EPA, medical treatment , living circumstances, finances, testamentary capacity
Gather necessary background information from available sources including family /experts
Includes details of medical procedure/ property/evidence of impaired self care or decision making/ inconsistency
This will also require consideration of confidentiality

22. Assessments
Consent
including intention to submit report to the court, and potential consequences
Inform of intent to gather additional information
Usual clinical history and examination PLUS specific assessment re competency
To make autonomous decisions the person needs:
Sufficient information to make the decision
The ability to make the decision free of coercion
Mental capacity to make the decision

23. A Staged approach to testing understanding:
Ask what the person knows about the situation /decision/ consequences without giving any information
Provide information required in uninterrupted form and ask respondent to paraphrase
Element disclosure and asking the person to paraphrase

24. A Staged approach to testing understanding:
If failure of spontaneous understanding is this due to
a lack of information
inability to retain and use information
Has implications for ongoing unsupported decision making capacity
Is this a one-off decision, or one that needs to be made repeatedly, without decision support.

25. Testing Appreciation and Reasoning
Does the person see the relevance of the information for themselves
Does their understanding of risks and benefits of each option concur with the assessment of others / experts
If the information is felt not to apply to their situation is the reasoning logical
Need to understand the reasoning behind an idiosyncratic view
Can the person give a logical explanation for the expressed choice

26. Some Useful Points to Consider
Dispositional Autonomy
In the absence of the ability to demonstrate logical reasoning behind the decision is this consistent with the persons choices through life? Check with relatives / caregivers
Consistency of decision making is important
What is the person likely to decide /do without you walking them through the decision?

27. Optimising Competency
Best time of day and setting
Supports / absence of influence
Provision of information required to make the decision
Including choices, risks, benefits, likely consequences
Provision in form(s) for optimal comprehension
Communication aids
Simple chunks of information in logical sequence
Checking comprehension and reasoning at each step

28. Undue Influence: Subversion of Will
Consider when:
Vulnerability: Anxiety, personality factors, cognitive (memory or executive function)
Evidence of a pathological or dependent relationship with caregiver: Coercion, threat to abandon/neglect, lies leading to negative feelings
Opportunity to influence testamentary act
Choices result advantage to one person over self or involved others
Attempts to control access by others / assessor
True wishes of testator not reflected in will

29. PPPR Act Forms