Foreword

 

The New South Wales Department of Justice is committed to promoting and protecting the rights and dignity of all people in the State. As part of our role, the Department has produced the Capacity Toolkit. It aims to assist people in correctly identifying whether an individual has the capacity to make their own decisions. This is important, since an incorrect assessment can result in the denial of a fundamental human right; the right to autonomous decision-making or 'self-determination'.

The Capacity Toolkit is the result of feedback received from hundreds of people, many of whom have been involved with someone whose decision-making ability has been in question. Feedback was gathered in a two-stage consultation process that included family members, carers, advocates, lawyers, doctors, other community and health care workers, workers in the finance field, and government employees.

The first stage was the Capacity Roundtable, hosted in Sydney in 2004 by the Department. Participation was extensive, leading to a lively and informative discussion about how to define capacity, assess capacity and how to access general advice on capacity.

The second stage was a discussion paper entitled 'Are the rights of people whose capacity is in question being adequately promoted and protected?'. 1It was issued in 2006 for public comment. Among other things, the discussion paper looked at the different meanings of capacity in NSW and what information people who assess capacity might need.

Like those at the Roundtable, people who responded to the discussion paper requested more information about capacity, asking for the development of some general capacity principles, and guidelines on how to decide whether someone has capacity.

This Capacity Toolkit was created in response to that request. It provides information and guidance to government employees, community workers, professionals, families and carers in issues relating to capacity and capacity assessment. In doing so, it upholds the freedom of each individual to make their own decisions, while protecting the interests and dignity of those who lack the capacity to do so.

I would like to acknowledge the Department's Capacity Reference Group, 2Communications Unit and Diversity Services for their dedication to this project. I would also like to thank the many individuals and organisations that participated in the Roundtable, provided feedback on the discussion paper, and assisted with the preparation of this Toolkit. Your time and effort has been invaluable in the development of this comprehensive and important document.

More specifically, my thanks to Julia Haraksin for her commitment and hard work since the inception of the capacity project, and Jenna Macnab, the author of this valuable resource.
Yours faithfully

Laurie Glanfield

 


1. Go to the website: www.justice.nsw.gov.au/diversityservices, or phone (02) 8688 7507 or email diversity_services@agd.nsw.gov.au for a copy.

2. Capacity Reference Group

John Arms, NSW Local Courts, Edwina Cowdery Legislation and Policy Division, Imelda Dodds NSW Trustee & Guardian, Deborah Frith * Brain Injury Association, Robin Gurr Guardianship Division, Julia Haraksin Diversity Services, John Le Breton Victim's Services, Jenna Macnab Diversity Services , Richard Neal Elder Law and Succession Committee Law Society of NSW, Graeme Smith Office of the Public Guardian, Peter Whitehead Public Trustee
Thanks also to Sue Field, Public Trustee NSW, Fellow in Elder Law at University of Western Sydney.
* Formerly of  Diversity Services and the author of the discussion paper: 'Are the rights of people whose capacity is in question being adequately promoted and protected?'