Section 4 -Tips on assessing capacity

Tips on assessing capacity - what do I need to know before I start?

You need to assess, or seek an assessment of, a person's capacity when:

  • there is a demonstrated trigger 16
  • all other attempts to solve the problem have failed, and
  • there are important legal consequences or the conduct of the person is causing, or is likely to cause, significant harm to the person or someone else.

It is important to assess a person who may not have the capacity to make certain decisions. Failing to assess them means that they will continue to make their own decisions, which may cause them physical or legal harm.

It is equally important to ensure that you carry out the assessment process correctly so that the result is accurate. An incorrect result may deny a person their right to make a specific decision, or force them to make a decision that they are incapable of making or that may cause them harm.

The following are tips on capacity assessment that will help to ensure that the process is carried out correctly.

Apply the principles

Begin by applying the six capacity assessment principles.

1. Always presume a person has capacity

The most basic principle is to presume that a person has the capacity to make all decisions for themself.

2. Capacity is decision specific

Apply the presumption of capacity for every decision the person makes. This is because a person may be able to make some, but not all, decisions for themself.

3. Don't assume a person lacks capacity based on appearances

Do not assume a person lacks capacity because of their age, appearance, disability, behaviour or any other condition or characteristic.

4. Assess a person's decision-making ability - not the decision they make

A person cannot be assessed as lacking capacity simply because they make a decision you think is unwise, reckless or wrong.

5. Respect a person's privacy

Respect a person's right to privacy when you are assessing their capacity.

6. Substitute decision-making is a last resort

If all efforts made to support a person through the decision-making process fail, then you can decide that the person doesn't have capacity to make that decision. It is only then that a substitute decision-maker can make that decision for the person.

A more complete overview of these principles can be found in Section 3 - Capacity assessment principles on page 27.

Tell the person about the process

Before beginning an assessment, it is important to effectively communicate to the person what you are doing and why. Your aim should be to get the person to participate
willingly in the process. You might tell them the following:

  • there is concern about their capacity to make a particular decision or decisions. You might briefly outline the decision and the concern
  • there is the possibility of risk or harm to themself or others if they make a decision or decisions without capacity
  • what is involved in the assessment process
  • why it is beneficial for them to participate in the process - if they assist by providing information then you will better be able to safeguard their interests. For example,
  • assessing capacity can provide a safeguard later if there is a dispute in the future over the person's will
  • the result of the assessment will be either of the following:
    - they have capacity to decide the particular decision for themself
    - they lack capacity to decide the particular decision and require someone to make this decision on their behalf.

In most cases people are willing to cooperate. When a person remains unwilling to participate and there are serious consequences, you may have to take further steps. For example, if you think you may need to start using a power of attorney or enduring guardianship but the person won't assist you in an assessment then you may need to make an application to the Guardianship Tribunal 17.

Be flexible about assessments

It is important to understand that people are individuals,come from diverse cultural and linguistic backgrounds,and have different skill levels. When conducting an assessment, be flexible and adaptable to the individual's needs and preferences. Each person should be given the same opportunity to be correctly assessed. You can do this by making a reasonable adjustment (change) 18 to the assessment process.

When making a reasonable adjustment, remember the following:

  • never assume what the person may need or how best to support them. Always ask them or get specialist advice on what they may require
  • consider that treating everyone the same does not ensure equal outcomes
  • conduct the assessment in a way that best suits the situation and the individual. In most situations you can undertake the assessment in a variety of flexible ways.

Consider cultural and linguistic diversity and capacity

Culture, language, ethnicity and religion are integral factors in how people make decisions, as well as the decisions they make. They shape how people think, behave and communicate.

For example, in some communities and in some families, individuals with capacity to make their own decisions freely allow others to make important decisions on their behalf. Sometimes a person may allow or prefer the head of a household to make all the important decisions. Or there may be an established pattern where a parent within a family, or an elder of a community, makes certain decisions.

Sometimes the decision-making process is a collective one involving the whole community in meetings and discussions about the decision, such as in some Indigenous communities.

Religious beliefs may impact on the decision made, or how it is made. For example, some Jehovah's Witnesses and Christian Scientists hold particular beliefs that might affect their decisions about various medical treatments.

So, when you are determining capacity, make sure you take into account the person's language, ethnicity, cultural values and religious beliefs. You may need to do the following:

  • organise an interpreter if you can't understand the person or have difficulty communicating with the person in English 19
  • seek information about the cultural and ethnic background of the person as well as the religious beliefs of the person and consider it when you are assessing the person
  • take into account the effect of a proposed decision on the person's relationships within their cultural or religious community.

Case Study

Culture and capacity

'Recently I visited with an Aboriginal man to talk about what kind of care or services he might need to help him to remain in his home. Although I had no previous experience with Aboriginal clients, and do not come from an Aboriginal background, I took on this particular client due to staff shortages.

The client and I spent some time discussing his needs and which services he may benefit from, but he still seemed unable or unwilling to make a decision about whether to give me permission to go ahead with the referrals.

At first I thought that he might not have the capacity to make a decision about his service options. I decided to come back at another time and discuss the issues with him again.

The second time I visited, his extended family was around too. I was a bit shocked, and suggested that we put the meeting off until another time. He told me that he had asked them around to his place so that they could listen too. It was noticeable that he felt much more comfortable than he was on my first visit. So, I agreed that his family could join us.

It was a learning experience for me. I had misjudged the importance of involving the man's family in the decision-making process. I now understand that it is important to familiarise myself with a person's culture before an assessment, and to take it into account during the assessment.'

Sarah, aged care assessment team


Don't make value judgments

Assessing a person's capacity means considering complex issues and making difficult decisions. To ensure an accurate assessment it is essential to be objective and impartial about the person's beliefs, values, preferences,feelings and emotions.

Determine what you are you looking for

In general, when you assess the capacity of a person to make a particular decision, you are considering whether the person can do the following:

  • understand the facts involved in the decision
  • know the main choices that exist
  • weigh up the consequences of the choices
  • understand how the consequences affect them
  • communicate their decision.

For example, some people can tell you the facts about their financial circumstances, but can't solve a problem using those facts. They may know the name of their bank and the value of their assets but not be able to discuss or weigh up options about investing those assets.

There are also situations where a person may not have any experience in making certain types of decisions. You might have to assess whether the person can learn to start making those decisions.

In rare instances, such as a person with 'locked-in syndrome', a person may be able to make a decision but is unable to effectively communicate it. The assessment result is that the person lacks capacity.

Apply the right test to the decision in question

For different areas of a person's life, different types of decisions need to be made. For some areas there is a specific legal test that applies. When you are assessing a person's capacity to make a decision you must consider the particular matters outlined in the test. The test you use depends on the legal area to which the decision relates.

For further information on each test and how to apply it to an assessment of capacity see Section 5 'Assessing capacity in each area of life' on page 72.

Ask questions carefully

Ask open-ended questions rather than questions which require only a 'yes' or 'no' answer.

Don't ask leading questions. Leading questions suggest or guide the person to a particular answer.

The aim of questioning is to draw the person into a discussion about the decision, the options and the consequences. That will give you an opportunity to assess the person's ability to understand and weigh up information,choices and consequences.

If the person has someone with them for support, remember to direct all your questions to the person you are assessing, not to the support person. Sometimes, it is a good idea to start the assessment with the support person present. When the person being assessed feels at ease, they may be comfortable having the support person wait outside.

It is important that the person being assessed answers the questions. In some circumstances the person being assessed may need support during the assessment from a neutral person, such as an interpreter 20 or advocate.
You may want to ask the person the following questions:

  • how did you reach your decision?
  • what things were important to you when you were making your decision?
  • how did you balance those things when you were making your decision?

'How can I support a person to make their own decision?' on page 149 will give you further tips about environment and communication.

Avoid undue influence

Decisions must be made freely and voluntarily. The person feel pressured or deceived into making a decision they would not otherwise make.

People who have difficulty making decisions, or who are dependent on others financially, physically or emotionally, are more at risk of being unduly influenced.

To find out whether the person's decision is what they wanted, start by asking them who else was involved in the decision-making process. Seek to determine whether the involvement amounted to supporting the person through the decision-making process, or whether the involvement has been overbearing and has distorted the person's real wishes.

This is difficult where there may be an established or assumed power difference or where there is an on-going pattern of interaction between two people. If you suspect undue influence, try communicating with the person making the decision, without the other person present. Ask questions that will separate the views of the person from the views of others.

You may also need to suggest that the person obtain some independent advice from a lawyer, accountant or financial advisor depending on the nature of the decision.

 

16 See Section 3 - When should capacity be assessed?' on page 50.

17 See Section 6 'Resolving disagreements'. See page 156.
18 Many of the ideas outlined in 'How can I support a person to make their own decision?', on page 149, can be used as a reasonable adjustment to the assessment process.
19 & 20 Multicultural NSW has information about interpreters on their website: www.multicultural.nsw.gov.au/  Or call on 1300 651 500.