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Capacity Assessment – the facts

Peteris Darzins BMBS PhD FRACP FRCPC Grad Cert Health Prof Ed

Professor of Geriatric Medicine, Monash University, and Director of Geriatric Medicine, Eastern Health

peteris.darzins@monash.edu

Outline

■  revise concept of capacity

■  stress that assessments seek evidence of incapacity not of capacity

■  (introduce the Six-Step Capacity Assessment Process)

Capacity is: ■  legal construct defined in the negative

– compare to guilt / innocence – do not need to prove innocence –  the absence of incapacity is evidence of

capacity ■  presumed to be present

–  fundamental legal principle – disprovable proposition

The aim of assessment of decision making capacity is:

■  not to look for evidence of capacity

BUT

■  to look for evidence of incapacity

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Capacity is:

■  domain specific –  finances vs health care

■  decision specific – bypass surgery vs flu vaccine

■  time specific –  fluctuating capacity

■  (“specific” not “global”)

Evidence of Incapacity – any of:

■  do not know issues ■  do not know possible approaches ■  do not appreciate reasonably foreseeable

consequences ■  decisions based on delusional constructs

■  in the presence of cognitive impairment

Summary

■  revised concept of capacity

■  stressed that assessments seek evidence of incapacity not of capacity

How will you decide, whether your patient has the capacity to decide?