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The field of capacity and decision- making is a truly “medico-legal” field, representing an interface between the legal and medical disciplines. Much major decision- making involves execution of legal documents and is regulated by the common law and legislation. It requires the involvement of legal professionals, while the relationship between decision- making and health and well-being often necessitates the involvement of health care professionals.
Good practice for health care professionals working in this area requires a careful balance between the sometimes-competing medical and ethical principles of promoting autonomy (the individual’s right to self-determination and independence) and beneficence (the need for the clinician to act for the benefit of the patient). [1] Ultimately the goal is to ensure that decisions are not made by patients or clients without capacity, while facilitating where possible, the participation of impaired clients in important and meaningful processes from which they might otherwise have been excluded. Lawyers and doctors alike need to be conscious of the need of cognitively impaired people to have a sense of purpose and involvement in their own affairs as much as possible and for as long as possible and to maximise their participation or sense of involvement.
This requires both an understanding of the law which underpins decision–making as well as the kind of conditions which afflict humans and impair their ability to make decisions.
Capacity is the ability to make decisions.. The term “capacity” has been used synonymously with competence, although some have sought to distinguish competence as being a legal determination, and capacity a health care professional’s determination [2],[3],[4],[5] Although the accepted legal standards that define capacity and competency vary, operational definitions of the cognitive elements of capacity usually comprise combinations of the following abilities:
1. To understand the specific situation, relevant facts or basic information about choices
2. To evaluate reasonable implications or consequences of making choices
3. To use reasoned processes to weigh the risks and benefits of the choices
4. To communicate relatively consistent or stable choices [6],[7],[8],[9]
There is general consensus that capacity is not a unitary concept but rather refers to specific decisions, tasks or domains.[10],[11],[12],[13],[14],[15] Capacity is therefore task or domain-specific, that is, peculiar to the particular type of decision made. Thus, the capacity task is different for entering into a contract; executing a power of attorney, will or deed; appointing an enduring guardian or an attorney under a power of attorney; or consenting to treatment, divorce or marriage. This has been acknowledged in Australia in Gibbons v Wright when a unanimous High Court said:
[T]he mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained. [16]
Thus, capacity cannot be extrapolated from one capacity task to another. For example, a person’s capacity to write a will cannot be inferred from their capacity to consent to medical treatment. The concept of global capacity, whereby a person is deemed capable or incapable of making all decisions, has been rejected. Consequently, it is inappropriate to state that a person “lacks capacity”, without further reference to the type of capacity.
Capacity is also issue-specific. As suggested in Gibbons v Wright:
One cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case.[17]
This suggests that even within a particular type of decision or task category, capacity may vary. Within a single domain or capacity task there is a spectrum or hierarchy of decisions from simple (e.g. having a blood test) to complex (e.g. carotid artery surgery) and accordingly, people may be capable of making simple decisions but not more complex ones. Further, the greater the complexity and conflict within the decision-maker’s environment (the ‘situation-specific’ nature of capacity), [18],[19] the higher the level of cognitive function or emotional stability/mental health necessary in order to be considered capable when making decisions which involve others. This might include, for example, the weighing up of potential beneficiaries in a will or potential appointees as attorneys under (enduring) powers of attorney or as enduring guardians or recipients of a gift, or whether to propose or accept a proposal to marry.
Accordingly, a person with dementia may have the capacity to make a simple will, for example leaving a single asset such as their house to their spouse, but may not have capacity to make a complex will, for example dividing a complex estate involving a share and real estate portfolio amongst multiple, conflicting beneficiaries with fractional bequests.[20]
Also, in any discussion about incapacity, it must be appreciated that there is, in the common law, a presumption of capacity in relation to anyone 18 years or more.[21] That presumption is sometimes confirmed in legislation.[22] The presumption may be rebutted by evidence to the contrary. Consequently, incapacity is not “status” or diagnosis bound.[23] Incapacity cannot be assumed because of a diagnosis of mental disorder, such as dementia or schizophrenia. Rather, the question of whether or not a person has capacity is assessed in the context of the person’s cognitive abilities in relation to the decision. A person with mild dementia may therefore have enough insight, memory and reasoning to know they need help and accept it in the way of community services but not have enough reasoning to decide on the pros and cons of a carotid endarterectomy to relieve plaque formation in the carotid artery. A useful formula in this context might be:
Capacity = brain reserve/decision
Put another way, this means that the bigger the decision, the more brain reserve or intellectual ability one needs to have capacity.
Freedom is maximized when a person is allowed to make the decisions they are capable of making.[24]
Any disorder causing acute or chronic impairment of cognitive function might potentially compromise capacity. Such disorders include:
1. Intellectual disability
2. Cognitive impairment, either associated with
a. head injury;
b. neurodegenerative diseases such as dementia (e.g. Alzheimer’s disease, vascular dementia, dementia with Lewy bodies); or
c. delirium which is a transient reversible perturbation of cognitive function due to medical illness.
3. Mental illness such as schizophrenia, depression, bipolar disorder, usually in their acute phases.
The capacity of a person with any of these disorders can vary according to the nature, severity and fluctuation of their condition and the person’s medication or treatment. Throughout this book we will address the nature of many of these disorders as they affect different types of capacity.
Capacity must be tested in relation to the decision at hand and at the specific time the decision has to be made. Sometimes it is assessed contemporaneously when the decision is being made. Sometimes it is assessed retrospectively to check the validity of a past decision. The question the health professionals must ask themselves is: Does X (or did X) have capacity to make a decision about Y? The answer to this question is determined by the cognitive ability of X to understand and appreciate the context of and the decisions they are making; not the actual outcome of the choice. A bad outcome or “bad decision” does not imply incapacity,[25] nor does a “good decision” imply capacity.
Importantly, the person must be aware of the “what and who” of the decision. The “what” of the decision refers to the person’s understanding of the decision. For example, do they understand what a will is, or what an (enduring) guardian or an (enduring) attorney does? The “who” of the decision refers to the appointee – capacity often involves giving appointments to other people – making them decision- makers or giving them certain powers or bequests. The choice of the appointee must be rationally considered, and preferably, in the case of those with neurodegenerative disease such as dementia, consistent with choices made prior to the onset of the disease (or if inconsistent, the inconsistency must be a manifestation of rational choice and not of influence from others). A person must understand the implications of making changes to previously established patterns of appointments or legal documents.
However, as Debelle J warned in Dalle-Molle by his next friend Public Trustee v Manos, there is a limit on how much weight can be given to the lack of rationality of a decision is assessing whether or not a person had capacity to make the decision. He said:
[O]ne of the neuro-psychologists called to give evidence, pointed out, a person suffering a mental or intellectual impairment may be capable of making a decision but that decision may have no logical or reasonable base. In my view, that last comment sounds a salutary warning that the barrier as to what constitutes a rational decision should not be raised too high.[26]
In order to assess capacity, the health care professional must be equipped with the following:
1. The legal tests that define capacity in the area in question (e.g. the legal definition of will-making capacity or capacity to appoint a power of attorney)
2. Information about the person’s health status and cognitive functioning and, if possible, an opportunity for the health care professional to test the person’s cognitive functioning;
3. The history of family relationships and the “emotional and psychological milieu” [27]of the person – including history of any family conflict
4. The pattern of decision making in relation to the decision or document in question (e.g. pattern of previous wills or appointments of attorneys under powers of attorney)
There are no scientific tests for capacity, but rather an application of clinical assessment of the individual person (and/or the evidence relating to the person’s health and psychological status) applied to the legal tests relevant to the decision at hand. A general outline for an assessment of capacity would include the following:
1. Introduction:
a. expertise or CV annexure,
b. questions asked/ legal tests used,
c. acknowledgement of having read any expert code,
d. evidence upon which opinion is based,
e. circumstances of assessment if contemporaneous
2. Personal history and family relationships,
3. Medical and psychiatric history,
4. Diagnosis including issue of cognitive impairment and severity,
5. Specific answers to the relevant legal tests,
6. Conclusion
7. References
While this is a general guideline we will address report writing throughout this book with reference to specific capacity tasks.
One of the most fundamental tasks of solicitors is to take instructions from their clients. Nevertheless, clients must have the capacity to give those instructions. Consequently, and not disregarding the presumption of capacity, when a solicitor interviewing a client realises that the client has questionable capacity, the solicitor must then determine whether or not the client can indeed give instructions.
What is required for capacity to give instructions in relation to litigation was considered in Dalle-Molle by his next friend Public Trustee v Manos.[28] In that case Debelle J noted the following matters:
1. the person must have the capacity not only to give sufficient instructions to prosecute or defend the action but also the capacity to give sufficient instructions to compromise the proceedings;[29]
2. the term “sufficient instructions” in Rule 5 of the Supreme Court Rules (of the South Australian Supreme Court) signifies that the person is able, once an appropriate explanation has been given to them, to understand the essential elements of the action and is able then to decide whether to proceed with the litigation or, if it is a question of agreeing to a compromise (a settlement) of the proceedings, to decide whether or not to compromise (settle the case); [30]
3. the person’s understanding must be in relation to the facts and the subject-matter of the particular case. Legal proceedings have a spectrum of complexity. They can extend from the most simple issues through a range of complexity to quite involved and complex litigation;[31] and
4. The person’s level of understanding must be greater than the mental capacity to understand in broad terms what is involved in the decision to prosecute, defend or settle the proceedings, they must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks having to pay costs if they are unsuccessful in the case.[32]
In a case regularly referred to in relation to the test for capacity to make an enduring power of attorney, Ranclaud v Cabban, Young J noted in relation to giving instructions:
It must also be realised that being able to understand what a solicitor is and what one is doing when one is retaining a solicitor is not the whole of the matters which must be considered when working out whether a person is capable of retaining a solicitor. A solicitor is not the alter ego of a litigant. Doubtless it is possible for a person who is sui juris and well aware of the commercial risks involved to give a solicitor a retainer which just says “achieve result X by whatever means you think sufficient with no regard as to cost”. Generally speaking, however, a person retains a solicitor to advise one and one reserves to oneself the ultimate power of making decisions after receiving the solicitor’s advice.[33]
As has already been indicated, the law in Australia requires that anyone who enters into a contract or other transaction, or executes a document like a deed conveying their land to someone else, or a will or an enduring power of attorney, should have the mental capacity to understand the nature and effect of that transaction or document. However, the starting point is that everyone who has reached the age of majority, namely 18 years, is presumed to have the capacity to enter into contracts or other transactions. If they, or someone acting on their behalf, assert they lacked capacity when they entered the transaction or executed the document, they must prove their lack of capacity. Similarly, if another party asserts that the person lacked capacity, they must prove that the person lacked capacity.[34]
While these matters are clear, there are many factors that are relevant to the question of whether a person had the capacity to enter into a transaction or execute a document. When it comes to entering or leaving interpersonal relationships, considerations including indicators and patterns of influence, the vulnerability of cognitively impaired person to influence and the assessment of the capacity to form and cease interpersonal relationships apply. They matters are dealt with in Chapter 2.
When it comes to contracts and gifts made during lifetime, a number of other considerations apply including the obligation to pay for necessaries. Undue influence, unconscionability and the defence non est factum can be relevant. These matters are dealt with in Chapter 3.
Chapter 4 deals in detail with the capacity to make a will and the pressures that may be applied to the will-maker. It also deals with the considerations relevant to having a will set aside because the will- maker did not have will-making capacity.
Those three chapters deal with the circumstances which may lead to a transaction an incapable person entered or a document they signed being set aside.
The next group of chapters briefly trace the history of and then the current law in Australia relating to the appointment of by tribunals of guardians for incapable people who need a guardian as their substitute decision-makers for personal matters or administrators (financial managers) to manage their property and financial affairs and to make substitute decisions for them in relation to those matters.
Chapter 5 traces the development in England of the common law relating to the guardianship and the administration of the estates of people with decision-making disabilities, the introduction of that law into Australia and its further development here as a result of legislation and court decisions. It also considers the transition of the system from a Supreme Court based system to a tribunal based system.
Chapter 6 deals with the bodies in each State and Territory that have jurisdiction to make guardianship orders and the matters they have to consider before making such orders. Chapter 7 deals with the functions, powers, duties and responsibilities of those appointed as guardians. Chapter 8 deals with the powers of the tribunals and courts empowered to appoint administrators (financial managers) and the roles and functions of the administrators so appointed.
The next two chapters deal with the legislation recently enacted to allow people to appoint their own substitute decision-makers to act for them if they lose capacity. This legislation allows the appointment of enduring guardians or their equivalents to make substitute personal decisions and attorneys under enduring powers of attorney to make substitute financial decisions and to mange financial affairs. Versions of this legislation have been enacted in most States and Territories in Australia. Chapter 9 deals with enduring guardianship while Chapter 10 deals with enduring powers of attorney.
More and more people are making advance directives in which they set out how they wish to be treated when they reach certain levels of functioning but cannot make decisions for themselves at that time. Because these tend to deal mainly with questions of medical treatment, they are dealt with in the final section of the book.
That section of the book deals with substitute consent to medical treatment and related matters. Chapter 11 deals with the development of the law relating to people unable to give a valid consent to their own treatment. Chapter 12 sets out the law relating to substitute consent to medical treatment in Australia. Chapter 13 deals with advance directives while Chapter 14 deals with decision-making at the end of life. Chapter 15 deals the sterilization of people unable to give a valid consent to their own treatment. Chapter 16 deals with the law relating to those unable to give a valid consent to their own treatment being involved in clinical trials and gaining access to medical treatments that are still in their experimental later stages.
[1] Katona C. Chiu, E, Adelman, S.Baloyannis, S., Camus, V., Firmino, H., Gove, D., Ghebrehiwet, T., Graham, N., Icelli, I., Ihl, R. Kalasic, A., Leszek, L., Kim, S., de M. Lima, C. Peisah, C., Tataru, N., Warner J. (2009). World Psychiatric Association Section of Old Age Psychiatry Consensus Conference on Ethics and Capacity in old people with mental disorders. International Journal Geriatric Psychiatry, 24(12): 1319-24.
[2] Kim SYH Karlawish JHT, Caine E.D. (2002) Current state of research on decision-making competence of cognitively impaired elderly persons American Journal Geriatric Psychiatry 10:151-165.
[3] Marson DC, Schmitt FA, Ingram KK, Harrell LE.Determining the competency of Alzheimer patients to consent to treatment and research. Alzheimer Dis Assoc Disord. 1994;8 Suppl 4:5-18.
[4] Shulman KI, Cohen CA, Hull I.Psychiatric issues in retrospective challenges of testamentary capacity. Int J Geriatr Psychiatry. 2005 Jan;20(1):63-9
[5] Grisso T, Appelbaum PS.Comparison of standards for assessing patients' capacities to make treatment decisions. Am J Psychiatry. 1995 Jul;152(7):1033-7
[6] Marson DC, Schmitt FA, Ingram KK, Harrell LE.Determining the competency of Alzheimer patients to consent to treatment and research. Alzheimer Dis Assoc Disord. 1994;8 Suppl 4:5-18.
[7] Marson D.C (2001) Loss of competency in Alzheimer’s disease: conceptual and psychometric approaches International Journal of Law and Psychiatry 24: 267-283.
[8] Grisso T, Appelbaum PS, Hill-Fotouhi C.The MacCAT-T: a clinical tool to assess patients' capacities to make treatment decisions. Psychiatr Serv. 1997 Nov;48(11):1415-9
[9] Grisso T, Appelbaum PS.Comparison of standards for assessing patients' capacities to make treatment decisions. Am J Psychiatry. 1995 Jul;152(7):1033-7
[10] Shulman KI, Cohen CA, Hull I.Psychiatric issues in retrospective challenges of testamentary capacity. Int J Geriatr Psychiatry. 2005 Jan;20(1):63-9
[11] Kim et al (2002) ibid
[12] Verma S. Silberfeld M. 1997 Approaches to capacity and competency: the Canadian view Int J Law Psychiatry. 1997 Winter;20(1):35-46
[13] Sullivan, K., Neuropsychological assessment of mental capacity. Neuropsychol Rev. 2004 Sep;14(3):131-42.
[14] Woods B Pratt R Awareness in dementia: ethical and legal issues in relation to people with dementia Aging Ment Health. 2005; 9(5):423-9.
[15] Darzins, P, Molloy DW, Strang D. (Ed) Who can decide? The six step capacity assessment process (2000) Memory Australia Press, Adelaide, p6
[16] [1954] HCA 17; (1954) 91 CLR 423, 438, [1954] HCA 17 [7].
[17] Ibid. 438, quoting Hodson LJ from In the Estate of Park Decd Park v Park [1954] P 112, 136. See also Dalle-Molle by his next friend Public Trustee v Manos [2004] SASC 102.
[18] Shulman K.I., Peisah C., Jacoby R, Heinik J, Finkel S. (2009). Contemporaneous assessment of testamentary capacity A consensus report from the IPA Task Force on testamentary capacity and undue influence. International Psychogeriatrics, 21(3),433-9.
[19] Shulman, K.I., Cohen, C.A., Kirsh, F.C., Hull, I.M., Champine, P.R. (2007) Assessment of testamentary capacity and vulnerability to undue influence. American Journal of Psychiatry 164:722-727
[20] Shulman K.I., Peisah C., Jacoby R, Heinik J, Finkel S. (2009). Contemporaneous assessment of testamentary capacity A consensus report from the IPA Task Force on testamentary capacity and undue influence. International Psychogeriatrics, 21(3),433-9.
[21] For some recent judicial confirmations of this see, Dalle-Molle by his next friend Public Trustee v Manos [2004] SASC 102, 88 SASR 193; SA v Manonai [2008] WASCA 168; L v Human Rights and Equal Opportuinty Commission [2006] FCA 114 and Lawrance v Federal Magistrate Driver [2005] FCA 394
[22] For example see, Guardianship and Administration Act 2000 (Qld) Sch 1 cl 1
[23] Wong JG, Clare CH, Holland AJ, Watson PC, Gunn M. The capacity of people with a 'mental disability' to make a health care decision. Psychol Med. 2000; 30(2):295-306
[24] Darzins, P, Molloy DW, Strang D. (Ed) Who can decide? The six step capacity assessment process (2000) Memory Australia Press, Adelaide, p6
[25] Ibid. 1.
[26] [2004] SASC 102 [28]. See also Lane v Candura 376 NE 2d 1232 (1978) and Goldblatt, AD “Commentary: No more jurisdiction over Jehovah” (1999) 27 J.L. Med. & Ethics 190, 191 in which it was said:
A competent patient's refusal to consent even to life-saving medical treatment should be assessed only with regard to its internal consistency. If a legally competent individual's refusal accurately describes its consequences and the consequences of accepting the treatment, the refusal is itself competent. To conclude that a refusal is incompetent and can be overruled if it does not seem "rational" to the attending physician …is to return to paternalism, a principle discarded since the earliest of the termination of life-sustaining treatment cases. Without consent, medical touchings (except emergency care given to save the life of an incompetent patient) are batteries, both crimes against the state and a tort against the battered person.
[27] Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacity and vulnerability to undue influence American Journal of Psychiatry 2007; 164(5): p724.
[29] Ibid. [21].
[30] Ibid. [22].
[31] Ibid. [23].
[32] Ibid. [26].
[33] (1988) NSW ConvR 55-385, 57-548.
[34] Dalle-Molle by his next friend Public Trustee v Manos [2004] SASC 102, 88 SASR 193 and Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
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