Who should undertake capacity assessments?

  1. There is no restriction in New Zealand on the range of professionals who may perform capacity assessments, or the scope of practice required of those who do so884 (although an EPOA may specify who must conduct the assessment concerning its coming into effect).885 Only “certificates of mental incapacity” for activating EPOAs (not ”de-activating” them when someone regains capacity) have a prescribed form.886 In the Guidelines to the PPPR Act Regulations,887 the form for health practitioners completing a certificate of mental incapacity for an EPOA states: “Although there is no prescribed method of assessing incapacity for the purposes of this certificate, it is important that the practitioner records the reasons for his or her opinion in case it is challenged”.888 The certificate must be completed by a “relevant health practitioner whose scope of practice enables him or her to assess a person’s mental capacity and is competent to undertake an assessment of that kind.”889

884 Protection of Personal and Property Rights Act 1988, s 94(4). The PPPR Act allows the court to request a “medical, psychiatric or psychological or other report”, Protection of Personal and Property Rights Act 1988, s 76(1)(a).

885 Protection of Personal and Property Rights Act 1988, s 99D(2). The donor may specify in an enduring power of attorney that the assessment of his or her mental capacity for the purposes of this Part be undertaken by a health practitioner with a specified scope of practice, but only if the scope of practice specified includes the assessment of a person’s mental capacity.

886 There is no prescribed form for court applications under the PPPR Act. A form that was originally developed by the late Mr Keith Matthews, partner of the law firm, Tripe Matthews and Feist, for the Wellington Family Court, appears on the Ministry of Justice website: http://www.justice.govt.nz/family-justice/other-court-matters/power-to-act/getting-an-order-reviewed/forms-fees-and-cost.

887 Protection of Personal and Property Rights Act (Enduring Powers of Attorney Forms) Regulations 2008.

888 A social worker is not a “health practitioner” for completing the certificate but, nurses, occupational therapists and psychologists (in addition to doctors) are health practitioners under the Health Practitioners Competence Assurance Act 2003.

889 Protection of Personal and Property Rights Act 1988, s 99D. There is currently a proposed amendment to s 99D to replace the requirement that there is a prescribed form of certificate of the donor’s mental incapacity to the requirement for “prescribed Information”: Statutes Amendment Bill, Part 21 Amendments to the Protection of Personal and Property Rights Act 1988, Clause 78. In its submission on the Bill, the New Zealand Law Society opposed this change as regulations should not be left to define “prescribed information”, unless the relevant test for mental incapacity is clearly defined in the PPPR Act. The Law Society noted that what constitutes mental incapacity is an area of difficulty under the PPPR Act that is in need of legislative clarification: New Zealand Law Society “Statutes Amendment Bill” (29 January 2016). http://www.lawsociety.org.nz/__data/assets/pdf_file/0008/98207/Statutes-Amendment-Bill,-Part-21-29-1-16.pdf at 4.

  1. The Medical Council of New Zealand has advised that all doctors should be able to assess capacity.890 The Medical Council lists 36 vocational scopes of practice, none of which include a specific criterion for assessing mental (in)capacity.891 A “scope of practice” is not, however, intended to describe or prescribe how practice is undertaken but rather the areas of medicine in which a doctor is permitted to practise. 892 The expected “competence” of doctors to undertake capacity assessments is underpinned more by the training required to be a member of the relevant medical Colleges. Nurses could also be expected to undertake capacity assessments, but there is similarly no indication that assessing capacity is within the competencies required of nurses or within their scope of practice.893

  2. Typically, a general practitioner in the primary care setting who has knowledge of the person and the family may be approached to complete a capacity assessment. Where cases are complicated by existing medical or psychiatric conditions, a psychiatrist, geriatrician, or psychogeriatrican may become involved. Increasingly, clinical psychologists undertake capacity assessments, not only in their more traditional spheres of intellectual disability and brain injury, but also in the elder care setting.894

  3. Neuropsychologists can have a more specialised role where a person’s incapacity is borderline and requires more in-depth assessment. These assessments are based on how best to identify a person’s cognitive strengths and weaknesses for specific tasks, rather than on a “one size fits all” approach.895 Psychological testing includes assessing executive functioning in intellectual disability and assessing impairment in a person’s ability to “weigh up” information as part of the reasoning process.896 These matters can be very relevant to assessing the extent to which a person’s decision-making is unduly influenced by others, via emotional or sexual manipulation, for example, and to whether a person has capacity if they decline good support offered to them.

  4. Members of the different health professions may have different approaches to assessing capacity, depending on the assessment methods to which they adhere.897 Where possible, it is best to have a health practitioner who knows the person conduct the assessment. In many instances, practice nurses, social workers and occupational therapists may be part of a multi- disciplinary team that contributes to that assessment.

890 Report of the Minister for Senior Citizens on the review of the amendments to the Protection of Personal and Property Rights Act 1988 made by the Protection of Personal and Property Rights Amendment Act 2007 (Ministry of Social Development, Wellington, 2014), above n 73 at 13; see also Skegg and Paterson, above n 580 at 231.

891 Medical Council of New Zealand https://www.mcnz.org.nz/get-registered/scopes-of-practice/vocational-registration/types-of-vocational-scope/. “Scope of practice” means any health service that forms part of a health profession and that is for the time being described under section 11”, Health Practitioners Competence Assurance Act 2003, s 5. Psychiatrists are expected to be able to perform mental capacity evaluations and have the option of completing a Certificate of Advanced Training in Psychiatry of Old Age, which includes a standard on capacity assessments for testamentary capacity and EPOAs. https://www.ranzcp.org/Files/PreFellowship/2012-Fellowship-Program/Psychiatry-of-Old-Age-Certificate/Old-age-Certificate-requirements.aspx.

892 Email communication from David Dunbar, (Registrar, Medical Council of New Zealand) on scope of practice (16 March 2016).

893 The New Zealand Council: http://www.nursingcouncil.org.nz/Nurses/Scopes-of-practice.

894 There has been a submission to the Psychologists Board by neuropsychologists for capacity assessments to be included as a competency within their scope of practice (Email communication from K Cunningham (neuropsychologist), (29 May 2016).

895 KL Cunningham “Neuropsychological Assessment of Medico-Legal Capacity in the New Zealand Context” in JAB Macniven (ed) Neuropsychological Formulation: a clinical casebook (Springer, New York, 2016) at 114.

896 Psychologists use a variety of tests, for example, ABAS-II (Adaptive Behaviour Assessment System-Second Edition), whereby adaptive functioning scales can be filled out by the person and a reliable informant (family member and/or health professional). This test gives information of the person’s actual daily functioning skills without support or assistance. Cunningham, above n 895 at 94.

897 K Sullivan “Neuropsychological assessment of mental capacity” (2004) 13 Neuropsych Rev 131.

Existing guidance for assessing capacity
  1. In New Zealand, Young,898 and more recently Astell,899 have described approaches to capacity assessment for doctors. However, in contrast to the developments under the MCA and similar laws, no specific guidance has been established in New Zealand that takes into account the provisions of both the PPPR Act and the HDC Code, human rights developments under the CRPD, and the need to recognise tikanga Māori and cultural diversity within clinical practice.

  2. Traditionally, clinicians900 have used intuitive or unstructured methods of capacity assessment – sometimes referred to as “clinical judgement”. This approach is not accurate enough and will not withstand legal scrutiny, for example when assessing a person’s capacity to make a will or gift significant assets. There is often a misconception that tools for assessing cognitive impairment, such as the Mini-Mental State Examinations that produce a scored measure of cognitive function, are sufficient. However, these tools are not specific tests of decision- making capacity.901 Furthermore, the correlation between decision-making capacity and cognitive ability is not reliable in a legal setting, especially in the earlier stages of dementia.

  3. A variety of methods of capacity assessment have been published internationally but these mainly relate to other jurisdictions.902 The MacArthur Competence Assessment Tool for Treatment (MacCAT-T)903 has provided the basis for a clinical tool now used widely to assess capacity. It is internationally regarded as a “gold standard” of assessment, but requires some familiarity and training to use correctly. It has been used in the United States to assess decision-making capacity in relation to treatment decisions in many different clinical contexts, including research.904 This clinical tool provides a semi-structured interview that enables the assessor to evaluate capacity in terms of four abilities closely resembling the criteria in the MCA test905 (and the legal tests in the PPPR Act). A semi-structured interview approach is one which provides a framework for questioning, but which allows the clinician to insert details that are relevant to the issue and to the person being assessed. This approach can assist the clinician to ensure that the assessment is systematic and complete but is also sufficiently flexible and specific to the decision and circumstances.

  4. Major problems faced in the development and implementation of standards for assessing decision-making capacity are inter-rater reliability and the extent to which standards can be objective.906 Assessment of capacity will incorporate elements of value and rationality and the question is how to apply this in a clinical setting,907 particularly where the person has a severe psychiatric disorder. A particular difficulty that can arise for the clinician is whether the person’s ability to manipulate the information (that is, “foresee the consequences” or “use or weigh” the information) meets the standard of capacity. The assessment should focus on the process used in coming to a decision, not the content of the decision itself. However, assessing how a person weighs up the consequences is particularly subject to normative bias, based on the clinician’s own value judgements about how the patient “ought to” use the information.908 This may extend to cultural bias when assessing Māori, and generally there is a risk of failing to recognise the diverse cultural contexts within which capacity assessments are carried out.909

898 G Young “How to Assess a Patient’s Competence” (2004) Feb New Eth J 41. This seminal article was the first New Zealand specific method developed for GPs to assess capacity under the PPPR Act using a mnemonic for remembering the assessment procedure (“Play SOCCUR Excellently”).

899 H Astell, J Hyun-Lee and S Sankran “Review of capacity assessments and recommendations for examining capacity” (2013) 126 NZMJ 1383). Drs Astell and colleagues in the Community Geriatrics Department at Middlemore Hospital, Counties and Manukau DHB, identified the need to train specialist nurses and GPs to perform capacity assessments and developed a resource kit for this purpose.

900 The term ‘clinician’ is used to refer to health practitioners and can include, doctors, nurses and psychologists.

901 M Folstein, SE Folstein and PR McHugh “’Mini-Mental State’ – A Practical Method for Grading the Cognitive State of Patients for the Clinician” (1975) 12 J Psychiatr Res 189.

902 Examples internationally: T Grisso and P Appelbaum Competence Assessment Tool for Treatment (MacCAT-T) (Professional Resources Press, Sarasota, FL, 1998) (USA); Mental Capacity Act 2005 Code of Practice Chapter 4, A Ruck Keene (ed) Assessment of mental capacity: a practical guide for doctors and lawyers (4th ed, British Medical Society and the Law Society, London, 2015) (UK); Attorney General Capacity Toolkit (New South Wales, 2008) and Capacity Australia “Mini-legal Kits” www.capacityaustralia.org.au/resources/mini-legal-kits (Australia); Ontario Ministry of the Attorney General “Guidelines for Conducting Assessments of Capacity” (2005) http://www.attorneygeneral.jus.gov.on.ca (Canada).

903 Grisso and Appelbaum, above n 902, refer to capacity assessments for research participation.

904 P Appelbaum “Assessment of patients’ competence to consent to treatment” (2007) 357 New Eng J Med 1834. Note the legal test is slightly different – refer to Chapter 4 on Defining Capacity.

905 G Richardson “Mental Capacity at the Margin: the Interface between Two Acts” (2010) Med Law R 63.

906 See Chapter 4A Defining Capacity.

907 LC Charland “Mental Competence and Value: the Problem of Normativity in the Assessment of Decision-making Capacity” (2001) 8 Psychiat Psychol L 135.

908 Banner, above n 547.

909 See Chapter 2E Supported decision-making in practice and in English case law.

A survey of doctors in New Zealand
  1. In December 2015, as part of this research project, a survey entitled, “What do you know about assessing capacity, and what would help you do it better?” was sent to all doctors working at both Hutt Valley and Wellington hospitals.910 Information and a link to the survey were also published in three national newsletters widely read by GPs.911 The aim of this survey was three-fold: to increase awareness of the role of capacity assessments; to determine what doctors already know about the principles of capacity assessment; and to determine what their educational needs and preferences might be.

  2. This was a mixed-methods, cross-sectional survey consisting of four parts, using convenience sampling.912 Part 1 collected demographic information, including the doctor’s seniority, specialty, and frequency of experience with patients who may lack capacity. Part 2 asked doctors about the characteristics of a patient lacking capacity who they had encountered in the past year. Part 3 consisted of 13 questions testing the doctor’s knowledge about the principles of capacity assessment. Part 4 asked whether the doctor had received any postgraduate training on capacity assessment, whether they felt confident enough to defend their decisions in court, whether they considered assessing capacity to be within their scope of practice, and how they might like to receive educational material in the future. The final question asked doctors to describe what they considered to be the main difficulties they faced when assessing capacity.

  3. A total of 74 GPs and 153 hospital doctors responded, the majority of whom were medical consultants. In view of the number of doctors invited to participate, the results are of limited generalisability to all New Zealand doctors. However, valuable information was obtained, as the results showed that the doctors responding lacked knowledge regarding capacity assessments. A significant portion of GPs (24.3%) and hospital doctors (30.1%) did not consider capacity assessments to be within their scope of practice. Hospital doctors were sometimes confused as to whose job it was to assess capacity: i.e. whether they should take responsibility for the assessment of their patient or whether to refer them to a specialist, such as a psychiatrist or geriatrician. The median score on the multiple-choice questions in Part 3 was 17/26 for GPs and 18/26 for hospital doctors. Many doctors appeared not to realise that capacity assessment was decision-specific, and many incorrectly believed that a patient’s next of kin (without possession of a power of attorney) could give legal consent on that patient’s behalf.

  4. The vast majority of respondents had not had any formal training in capacity assessment. Those doctors who had training scored slightly higher than their peers. Doctors gave various reasons why they had difficulty with assessments, including lack of knowledge and confidence, time pressures, and lack of understanding of the relevant law. GPs also identified having to involve patients’ families as an area of difficulty. The reasons given were: resulting pressure from relatives for the GP to do a “grey area” assessment; family having “preconceived ideas”; family not understanding end-of-life care issues; family giving conflicting information to that received from the patient; and conflict between relatives.

  5. It is clear that most doctors sampled would benefit from structured, formal training in assessing capacity that would impart both clinical and legal knowledge. The survey showed that medical education in this area is particularly urgent, given that most respondents indicated that greater than 20 percent of their patients were aged 65 years or more, and that they had fairly frequently (6 – 12 times per year) been concerned about a patient’s capacity, or had to do a capacity assessment. Many respondents were enthusiastic about the prospect of learning how to better assess capacity, choosing various options for receiving educational material, and provided positive feedback to the authors for undertaking this research.

910 The survey was a collaboration by the writer with a number of doctors, led by Dr Greg Young, psychiatrist, Capital & Coast DHB. The collaboration involved Dr Crawford Duncan (psychiatrist), Dr Lorraine Davison (psychiatry registrar), Capital & Coast DHB; Dr Ben Gray, (Academic GP, Wellington School of Medicine, University of Otago); and Professor John McMillan (Director of the Bioethics Centre, University of Otago). A pilot survey was carried out at Hawkes Bay DHB in collaboration with Drs Lucy Fergus, Ian Hosford and Elaine Plesner. The survey received ethical approval from the Otago University Human Research Ethics Committee, (D15/213) and the institutional ethics committees of the Hawkes Bay and Capital & Coast DHBs. Statistical advice for the analysis of the survey was provided by Ellen Hewitt.

911 The Royal College of New Zealand General Practitioners (RCNZGP) circulated the survey on its electronic newsletter, ePulse and it was reported in New Zealand Doctor, “Closer look at GPs tricky job of judging mental capacity”, NZ Doctor.co.nz, 16 December 2015 www.nzdoctor.co.nz/.../2015/...2015/.../closer-look-taken-at-gps'-tricky-

912 The survey was based on work by Ganzini and colleagues that examined a number of misconceptions and uncertainties about capacity assessment in a group of old-age psychiatrists, physicians and psychologists in the United States: L Ganzini, L Volicer, W Nelson and others “Pitfalls in Assessment of Decision-Making Capacity”(2003) 44 Psychosom 237.

A toolkit for assessing capacity
  1. The survey clearly identified the need for professional education of doctors on how to assess capacity and on the legal framework. The authors have therefore developed guidance, in the form of a toolkit, using the results of the survey and their combined experience of teaching how to assess capacity to doctors, medical students and other clinicians.913 This toolkit was circulated widely in draft among doctors (and some lawyers) and was presented at a workshop attended by mainly hospital doctors and social workers.914 Detailed written feedback was received from over 30 respondents, including GPs and hospital doctors.

  2. The toolkit is intended to assist doctors and other health practitioners, including psychologists, nurses, occupational therapists (clinicians) and social workers who may be involved in assessing capacity. Guidance or standards for health practitioners need to be clear, appropriate and practically useful to clinicians.915 A key factor in developing the toolkit has been to ensure it provides the right balance of legal and clinical knowledge for clinicians using it. The toolkit recognises the need for culturally responsive practice when undertaking capacity assessments, especially if the person undergoing the assessment is from a different culture to the clinician. Tikanga Māori has been included by making whakawhanaungatanga, and the process of engagement and establishing connections between people, a platform for supported decision-making.916 The toolkit is therefore the first step towards providing a consistent and systematic approach to assessing capacity within the New Zealand healthcare setting.

  3. The toolkit for assessing capacity is annexed to this report.917

913 A Douglass, G Young and J McMillan “A Toolkit for Assessing Capacity” (2016) www.lawfoundation.org.nz; Appendix D.

914 “Elder Law in the Health Sector for Bright Star Training, Capacity assessments of older patients” (Crowne Plaza, Auckland, 24 February 2016). The Royal New Zealand College of General Practitioners (RCNZGPs) circulated the draft toolkit to a special interest group and various doctors were targeted through the network of doctors who supported the project.

915 L Anderson “Writing a new code of ethics for sports physicians: principles and challenges” (2009) 0 Br J Sports Med 1.

916 See Chapter 2D The Cultural Dimension. Advice on tikanga Māori was received from Dr Jo Baxter, Associate Dean of Māori, University of Otago.

917 Douglass, Young and McMillan, above 913, Appendix D.

  © 2020 Alison Douglass