This toolkit does not take the place of legal advice. Where a formal assessment has been requested, the referrer should clarify: the legal test, the particular questions to be answered, and that the clinician has been given all the necessary information to be able to complete the assessment.

People with impaired decision-making capacity may be vulnerable to abuse, coercion and undue influence from others, which may compromise their decisions being made freely and voluntarily. If there is suspicion of undue influence, then consider whether other professionals, or social agencies need to be involved and who can support the person in obtaining that advice. For example, whether the person should obtain independent advice from a lawyer or accountant, or support from Age Concern.

Assessing a person’s decision-making capacity may not be straightforward. Where the decision involves significant risk, or where there is conflict about the decision, it can be difficult to separate incapacity from differing personal values or unwise decisions. In these situations it is a good idea to seek the advice of senior colleagues. It is also common for clinicians to seek legal advice and, where possible, advice from a clinical ethics advisory group.

  © 2020 Alison Douglass