All individuals over the age of 18 are considered to have the capacity to make decisions until demonstrated otherwise. A decision to formally assess a person's capacity should always be specific to the decision(s) at hand and start from a presumption of capacity. A person's decision-making capacity is determined by their ability to:
- understand the information relevant to the decision and its effect
- retain the information to the extent necessary to make the decision
- use or weigh that information as part of the process of making the decision, and
- communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.
- domain specific (domains can include personal and lifestyle, finances, healthcare)
- decision specific (even within domains, for example, the person might be able to consent to a blood test but not to an amputation)
- time specific (note that capacity may fluctuate, for example, the older person might be better at certain times of the day).
Evidence of incapacity can include the person:
- not knowing or understanding the issues
- being unable to provide possible approaches to solving the issues
- not appreciating reasonably foreseeable circumstances
- making decisions based on delusional constructs
- having significant cognitive impairment.
If you suspect that the individual has a disability that is impairing their ability to make an informed decision, consider whether an assessment of decision-making capacity is required. If you can avoid an application to the Victorian Civil and Administrative Tribunal (VCAT) you may not need to complete a capacity assessment.
If the older person and their family agree with the treating team’s recommendation, you may be able to avoid a formal capacity assessment and an application to VCAT for guardianship.
If the person or their family disagrees with the treating team’s recommendation, and you have explored least restrictive alternatives, a formal capacity assessment should be completed to determine the extent to which their disability is affecting their ability to make the specific decision.
Assessing capacity is complex and multidimensional, and can be affected by a range of factors. Clinicians who are experienced in assessing cognition and capacity, such as neuropsychologists and geriatricians, should be used undertake a formal capacity assessment. The Office of the Public Advocate (OPA) can provide advice to health practitioners conducting assessments of decision-making capacity in relation to proceedings under the Guardianship and Administration Act 2019.
Reviewed 08 August 2022