Section 3 has three parts. Select a link from the list below for more information about each topic
There are six principles to be applied when assessing a person’s capacity. They aim to support and protect people, and help them to make the most of their decision-making ability.
The most basic principle is to presume a person has the capacity to make all decisions for themself. Every adult is free to make their own decisions if they have the capacity. As a family member, friend, carer, or other individual involved with a person, you should always make this presumption unless it is established that they don’t have the capacity to make a particular decision
When applying this principle, consider how a person’s culture, language, ethnicity or religion impacts on their freedom to make decisions. For example, in some communities and in some families, a person may regularly allow or prefer the head of a household, a parent or an elder of the community to make all the important decisions. This means individuals with capacity to make their own decisions may freely allow others to make important decisions on their behalf.
Sometimes the decision-making process is collective and involves the whole community in meetings and discussions about the decision, such as in some Indigenous communities.6
Also, some 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.
Even with a presumption of capacity, it is still important to think about the balance between a person’s right to make a decision and the extent to which that person’s health or safety might be in danger if they can’t make a decision. This can be a very difficult balancing exercise.
If you are faced with this situation be mindful not to act in an overly protective way when assessing whether a person has capacity. Protecting a person from making what you think is an unwise decision may seem helpful, but it is often best not to intervene. It is important to understand that if a person isn’t allowed to confront a difficult decision or its consequences, their right to be in control of their life is denied. Each individual has the right to take their own chances and make their own mistakes. Remember that making an unwise decision, or one that you don’t agree with, does not mean that a person lacks capacity.7
If you are claiming that a person doesn’t have capacity you need to give good reasons. Use facts to show that it is more likely than not that the person lacked the ability to make the decision at the time.Providing facts and demonstrating a person’s inability to make a decision can be as simple as doing the following:
You may only need to satisfy yourself of the facts. For example, you may be an attorney (under a power of attorney) or an enduring guardian making a decision about whether to use your powers.
Or, if you are a professional providing a service to a person, you may need to provide reasons to others, such as family members or friends. For example, you may be a solicitor refusing to draw up a power of attorney for a person whom you have assessed as lacking the capacity to make the power of attorney.Providing reasons for your decision about a person’s capacity may be done in a more formal way if the person, or someone else, challenges your decision. Keeping detailed notes of an assessment and writing down why you made the decision is therefore essential.Here are some examples of when good notes will be useful.
‘I don’t like arguing with my sister Eugina, but she thinks that because my brother has been told that he has Alzheimer’s, it means he can’t make any decisions for himself. I tried to explain to Eugina that you have to have reasons, evidence if you like, to show that someone can’t make a decision about something for themselves.
I know that she is just being protective, but she doesn’t have to worry. When Eugina actually sees him I think she will understand. (She doesn’t live near us).
He might have been told that he has Alzheimer’s, but the idea is not to strip him of his right to live his life like he wants. Eugina and I should monitor the things he can and can’t do before taking over any decisions.'
You need to assess, or seek an assessment of, the person’s capacity for each decision, whenever there is doubt about capacity.
This is because a person’s capacity can vary in different circumstances, at different times, and about different types of decisions.
If a person can make some but not all decisions, then they have a right to make as many decisions as they can.8
Remember, even if a person couldn’t make a certain decision in the past, they might be able to make:
So every time a decision needs to be made, you should ask the question:
‘Does the person have the capacity to make this decision now?’
If the person is unable to make a decision about something now, think about whether the decision may be delayed to a later time when the person may be able to make the decision for themself. Delaying the decision will give them the greatest control over their own life.
Decision specific capacity
‘I am my husband, Stephan’s, carer. When Stephan can’t make decisions for himself about his daily activities and life, I make them for him. Every day is different really. Sometimes Stephan has clarity and can understand things. That’s when he makes his own decisions. At other times, he doesn’t comprehend things enough to make his own mind up, and then I make decisions for him. I never really know what to expect. I always start by thinking, "Stephan has the right to make any decision he can." I assume that he is able to make his mind up unless it’s obvious to me (after I discuss things with him) that he doesn’t understand.
If things are urgent and important and I think that Stephan is having an ‘unclear’ day, I will jump in and make the decisions for him then and there. Otherwise I will wait until he can make the decision himself.’
Ada,wife and carer
It is wrong to assume a person lacks capacity because of their age, appearance, disability, behaviour, language skills or any other condition or characteristic.In fact, it may be discrimination under the law if you make unsupported assumptions about a person’s lack of capacity because of the way they look or behave.Incorrect assumptions can often be made about a person’s lack of capacity based on any of the following:
Capacity and appearance
‘I am a person with Cerebral Palsy. I find it difficult to communicate. I have problems moving my lips, tongue, jaw and face muscles. When I speak it is hard to understand me, but if you listen carefully you can tell what I’m saying.
I remember going into the bank one day wanting to withdraw money from my account. I don’t know whether it was the communication difficulty or the way I looked (sometimes my muscles make jerky movements), but the bank teller obviously thought I couldn’t understand anything. He was speaking to me as though I were a two-year-old, and shouting as though I couldn’t hear him. He didn’t process my transaction, telling me “I had better get some help with it”.
Well, I reckon he needed the help! I can’t believe he didn’t sit down with me and make the time to try to understand me. He just took one look, and because of my disability he thought I didn’t understand what I was doing. I ended up getting a friend to come with me and explain it to him. How humiliating! For him, me, and the bank. People shouldn’t make assumptions based on looks.’
You can’t decide that a person lacks capacity just because they make a decision you think is unwise, reckless, or wrong.
Everyone has their own values, morals, beliefs, attitudes,likes and dislikes. You might think a decision is bad yet someone else will think it is good.
The majority of people take chances or make ‘bad’ decisions once in a while. The right to make a decision includes the right to take risks and to make decisions with which others disagree. This is known as dignity of risk.
However, you may question a person’s capacity to make a decision if they make a decision that either:
When questioning a person’s capacity, you may also consider:
Assess decision-making ability
‘My mum has Bipolar Disorder. Sometimes when she has episodes of mania she does things I think are reckless, like going out and paying lots of money for a puppy that she won’t want or be able to look after later. She’s done this a lot. I try to get her to see the history and what will happen but she doesn’t listen at that point. It annoys me but it’s not life threatening or harmful to anyone else, so I go along with it. I usually find a home for the dog later.
On the other hand, sometimes Mum gets so depressed that she refuses to eat or leave her bed. She refuses to see a doctor. I don’t think her decision-making is good then, and I make decisions on her behalf to get help.’Jan, daughter
Respect a person’s right to privacy when you are assessing their capacity.
When you are assessing a person’s capacity you are dealing with a person’s personal information.‘Personal information’ generally means any information or any opinion about a person that can identify that person.Various privacy laws and principles aim to protect the privacy of a person being assessed. These principles also balance a person’s privacy interests against their personal interests such as health or safety.The most common privacy principles are about:
It is important to remember that ‘health information’ is a type of personal information. It often has its own health privacy principles that cover the ideas outlined below.
Always ask the person being assessed for the information you need for a capacity assessment. Explain why you need the information and what you will be doing with it.
If you need to get information about the person from others for the purpose of assessment, explain this to the person you are assessing. Ask the person if it is okay to speak to the others to get this information. Don’t generalise about whom you will talk to. Name, or at least clearly identify, the other people – for example, ‘your sister Hannah’, ‘your doctor, Dr Gordon’, ‘the woman who comes to help you get dressed on Tuesdays’.
Whether you are talking to the person or someone else, ask only for information that is relevant to the assessment.
It is also a good idea to tell the person you are assessing that they can see the information you are collecting about them if they want to.
When you have collected personal information to help you assess a person’s capacity, you can only use it for that purpose. If you need to use it for another purpose, you need to ask the person.
There are some exceptions to this rule. For example, you can use the information collected to deal with a serious danger to a person’s health or safety. This exception only applies when the danger is something that is about to happen. It doesn’t apply if the possible danger is in the distant future.
If you are going to give the personal information you have collected to anyone, you have to get permission. When asking for permission, tell the person exactly to whom you are going to give their information, and why. Again, there are exceptions. For example, you can give the personal information to others without permission if they need it to deal with a serious and immediate danger to a person’s health or safety. It doesn’t apply if the possible danger is in the distant future.
‘A client came in asking me to draft a will for him. After I went through the usual legal questions I had doubts as to whether the person had the capacity to make a will. It was really hard to decide, so I thought I needed to ask their GP for some information.
I explained this to the client, telling him that it was not unusual to want further information in these circumstances, and I went through the benefits for him to have things done properly. I asked the client to sign a form giving me permission to seek personal health information from his GP.
I drafted up a letter to the GP asking for some specific opinions, and wrote a paragraph confirming that the client had given me permission to ask the GP about his personal information. I attached a copy of the client’s permission form.
Although it is sometimes hard to tell a client that I need another opinion about their capacity, most clients can see the logic after I outline the advantages. Asking the client to sign a privacy form giving me permission to access the GP’s information also means the GP’s disclosure is ethical.’
More information - Privacy links
A person may be able to make a particular decision at a certain time because they have support during the decision-making process. This is called supported decision-making.
They might not have the capacity to make the same decision at another time without that support.
Before deciding that a person does not have the capacity to make a decision, you should ensure that everything possible has been done to support them to make their decision.
The type of assistance you provide, or get, for a person to support them to make a decision for themself depends on matters such as personal circumstances, the type of decision, and the time available to make the decision.
When seeking support for a person to make a decision, you can try the following:
There is more information about supporting a person to make their own decisions in
Section 6 on page 149.
Remember, if you are supporting a person to make a decision for themself you must not act in a way that might influence their decision. It is not your role to persuade a person to make what you think is the ‘correct’ decision, or to pressure them into making the decision that you would make. It is best not to talk about your own opinion. Simply assist the person to work through the decision-making process by providing information and support in a way they feel comfortable.
Supporting someone to make their own decision
‘I was working in the emergency department of the hospital one night when a man, Mark, was bought in by the ambos. Mark had been in a car accident and was conscious, but in shock. He didn’t seem to be able to speak and seemed really distressed. He was making noises and wild gestures.I thought Mark lacked the capacity to make decisions about the treatment of his injuries because he wasn’t talking or listening to what I was trying to explain to him. To me, he didn’t seem to comprehend. I put this behaviour down to the severe shock he was suffering,and decided to give him urgent treatment without consent.
Luckily, before I started any treatment a nurse said that she thought Mark was using sign language. She tried signing to him and he immediately relaxed and signed back. It turns out he did have complete capacity! What I thought was non-communication and wild gesturing due to shock was actually Mark’s desperate attempt to show me he was deaf. I just wasn’t giving him information in the right way. In fact, he could answer my written questions, and I was able to get Mark to make all his own medical decisions.’Minh, registrar
If all efforts fail to support a person through the decision-making process, you can then determine that the person doesn’t have capacity to make the decision. At that stage, someone called a ‘substitute decision-maker’ might need to make the decision for them. This is a last resort.
Substitute decision-making can happen informally where the person has family, friends or carers who can make decisions for them when the decisions are not major. It can also happen formally where there is a formal legal arrangement in place for someone to make substitute decisions by using an advance care directive, an enduring guardianship, or a power of attorney.
Also, the Supreme Court or the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) can consider appointing someone as a substitute decision-maker, such as a financial manager or a guardian, when:
Where the person is a patient in a mental health facility, or where the matter has been referred to the Mental Health Review Tribunal (MHRT) by a court, the MHRT can appoint a financial manager.If the Supreme Court or a Tribunal finds that a person does not have the capacity to make particular decisions and appoints a substitute decision-maker for some decisions, this does not automatically mean that the person does not have the capacity to make other types of decisions.Remember, substitute decision-making should be a last resort and used only when all efforts to assist a person to make a decision for themself have been unsuccessful.
Formal substitute decision-maker
‘My old boyfriend has a severe head injury from a motorcycle accident. He had been really clever, and still retained a lot of his ability to think and communicate. However, he now has little insight into some decisions, especially those about money.
Fortunately, for years after the accident I supported him to make most decisions about his finances on his own, and he was happy for the support. It was just an informal arrangement. All I really did was go through his expenses with him each month and talk him through the advantages and disadvantages of spending his money on certain things. I also encouraged him to get professional advice about long-term investments or spending.
Then we split up. He started to try to look after his own money, but seemed unable to do it now that my support wasn’t there.
I think his friend decided to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for a financial management order because he was worried that the insurance money (which he was supposed to live off) was being spent quickly on unnecessary large items. The Tribunal made an order for a substitute decision-maker, called a financial manager, to make his financial decisions.’
More Information - substitute decision making links
It is not always obvious when a person can’t make a specific decision. However, particular circumstances, events or behaviours might lead you to question a person’s capacity at a point in time. These are called triggers.Once you have judged that a trigger exists, a capacity assessment is the next step if all other attempts to solve the problem have failed and the conduct of the person is causing, or is likely to cause, significant harm to the person or someone else. Or if there are important legal consequences of the decision.Triggers that involve the person’s conduct might include any of the following:12
These types of triggers may be noticed by you, or by someone else who is seeking a capacity assessment for the person, or even by the person themself.
Another important trigger for assessment is when a person’s capacity improves. The person may simply have regained capacity lost through ill health or other circumstances. They may have learnt skills or accessed support services to increase their capacity. A person who could not make their own decisions in the past may now be able to do so if another assessment is conducted.
If you are dealing with a person whose capacity fluctuates because of a mental illness, it is crucial to make an assessment when there is an indication of increased ability to make decisions. This will enable the person to have control over as many of their decisions as possible.
‘I have an elderly client, Aja, whom I visit regularly. Lately I have noticed that her car is taking quite a few knocks, different scrapes, dents and marks. This by itself doesn’t worry me, but I have found that she is also repeating herself often and forgetting where she can find common items, like cups and towels, in her home.
As her caseworker I organised a meeting with Aja, her doctor, and her family (after getting her permission,of course!) and we all discussed whether Aja should undertake a test which would help the doctor advise her (and the Roads and Traffic Authority) about whether she should continue driving.
Aja’s family said that they had noticed the forgetfulness too, especially that she was not turning up to planned events and was using words from her native language (Hindi) right in the middle of an English sentence.
On her doctor’s advice after a capacity assessment (at which there was also a neutral interpreter), Aja decided that she should no longer drive.’
Different people will be involved in assessing a person’s capacity. Exactly who, depends on the kind of decision and the time at which it is made. It is usually the individual who is directly concerned with the decision-maker when the decision needs to be made, either in their role as a provider of services or as an involved or concerned family member, carer or friend.
In NSW a range of people in the community are recognised as having a responsibility to undertake an assessment of a person’s capacity. You may find yourself in the role of a:
The following examples show how you might be involved in assessing a person’s capacity in different circumstances:
Aged Care Assessment Team (ACAT) workers, social workers, family members or carers may need to decide whether a person has the capacity to make the personal decisions necessary to live in their own home.
If there are still doubts about a person’s capacity after an assessment, you (or another individual) may want to get a second opinion about the person’s capacity from a general practitioner, a psychiatrist, a psychologist, a geriatrician or a neuro-psychologist, for example.
These second opinions could be used, for instance, by a:
In some situations, a second opinion may be the only way to ensure a fair assessment of a person’s capacity. Factors that may indicate that a second opinion might be necessary are:
Additionally, as the seriousness of a decision and its consequences increases, the possible need for a second opinion also increases when there is still a question of the person’s capacity to make that decision.Remember, although getting a second opinion will help, the final decision about capacity is ultimately to be made by whomever it is that needs to know whether the person is capable of making the specific decision. That might be the individual who will be making the decision on behalf of the person (substitute decision-maker), or a community worker or other professional providing a service to the individual. More specific examples are a:
When there is involvement by the Guardianship Tribunal, the Mental Health Review Tribunal or the Supreme Court then the tribunal or court will make the decision as to a person’s capacity.Where a second opinion is unable to be obtained for reasons such as a dispute, urgency, location or lack of finances, the individual disputing the original capacity assessment may need to go to the Guardianship Tribunal or Supreme Court for a decision about a substitute decision-maker.
The following government agencies can give you information about your privacy obligations:
Information and Privacy Commission NSWPh: 1800 472 679www.ipc.nsw.gov.au
Office of the Australian Information Commissioner (Federal)Ph: 1300 363 992www.oaic.gov.au/
If you belong to a professional association, contact them about the privacy standards that apply within your profession. For example:
Australian Medical AssociationPh: (02) 6270 5400www.ama.com.au
Australian Healthcare and Hospitals AssociationPh: (02) 6162 0780http://ahha.asn.au/
Australian Financial Complaints AuthorityPh: 1300 931 678www.afca.org.au
The Law Society of NSWPh: (02) 9926 0333www.lawsociety.com.au
Real Estate Institute of New South WalesPh: (02) 9264 2343www.reinsw.com.au
The Guardianship Division of the NSW Civil & Administrative Tribunal can provide more information about the appointment of a substitute decision-maker such as under a power of attorney, a guardian, financial manager or a ‘person responsible’.11 For information about whether you need to apply for the appointment of a substitute decision-maker go to the website or phone the Tribunal.Guardianship Division of NCAT
Ph: 1300 006 228www.ncat.nsw.gov.au (click on guardianship)
When the person is a patient in a mental health facility,or a court has referred the matter to the Mental Health Review Tribunal (MHRT) you can get information about the appointment of a financial manager by contacting the MHRT.
Mental Health Review TribunalToll free: 1800 815 511Ph: (02) 9816 5955www.mhrt.nsw.gov.au
The Public Guardian PG can provide answers to questions over the phone, or go to the 'Guardianship' section on the PG website.
Public GuardianToll free: 1800 451 510Ph: (02) 8688 6070 (information and support)TTY: 1800 882 889www.publicguardian.justice.nsw.gov.au/
NSW Trustee & Guardian (TAG) may also be able to provide information about the appointment of a financial manager as a substitute decision-maker.
NSW Trustee & Guardian (TAG)Ph: 1300 360 466www.tag.nsw.gov.au
The NSW Trustee and Guardian can be appointed as attorney (under a power of attorney) or as financial manager.
Solicitors can give you information and advice about substitute decision-makers. The Law Society of NSW has a list of solicitors on its website. Click on ‘Advance find a lawyer search’. Or ring the ‘Solicitor Referral Service’ at the Law Society of NSW.
Law Society of NSWPh: (02) 9926 0333www.lawsociety.com.au
LawAccess NSW is a free government telephone service that provides legal information, advice and solicitor referrals for people who have a legal problem in NSW.
LawAccess NSWPh: 1300 888 529www.lawaccess.nsw.gov.au
131 450 Telephone Interpreter Service
People who are Deaf or hard of hearing use the national relay service to contact any number above, unless a TTY number is specified, call: 133 677.
People with speech impairments use the national relay service speak and listen service 1300 555 727.
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6 See Section 4 'Tips on assessing capacity - Cultural and linguistic diversity and capacity' on page 64.
7 See capacity assessment principle 4 'Assess the persons' decision-making ability - not the decision they make' on page 36.
8 However, remember to take into account cultural diversity and religious factors as discussed in capacity assessment principle 1 'Always assume a person has capacity' on page 28
9 see Section 6 'How can I suuport a person to make their own decision? - Communicate in an appropriate way' on page 150.
10 Multicultural NSW has information about interpreters on their website: www.multicultural.nsw.gov.au, select 'Language Services'. Or call Multicultural NSW on 1300 651 500.
11 Medical and dentral practitioners have a legal and professional responsibility to get consent before treating a person. The person usually gives this consent. If the practitioner assesses them as not capable of consenting to their own treatment the practitioner should seek consent from their 'person responsible'. A 'person responsible' can be:
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