Capacity Toolkit

Checklist Overview

Introduction Purpose Guidance (not legal advice) Definition of capacity Legal test for capacity

Key Practice Points Presumption of capacity Capacity is decision/time specific Assess the ability NOT the decision Supported decision making Substitute decision making Tikanga Māori & cultural diversity Form of assessment Who should carry out assessments

Capacity Assesment Overview Preparing Assesment Interview After the Interview

The Legal Framework Overview Mental capacity law Relevant legal test PPPR Act : capacity thresholds Activating EPOAs Making EPOAs HDC Code: capacity to consent to treatment Right 7(4) of the HDC Code Capacity to make a Will Refusal to undergo assessment

Useful Resources Legal resources Education videos Cultural competence International guides to assessment Authors & Acknowledgments

HDC CODE: CAPACITY TO CONSENT TO TREATMENT

Capacity is an essential component to validating consent, or refusal to consent, but there is no specific legal test for capacity set out in the HDC Code itself. The person must be able to:

understand the nature, purpose and effects of the proposed treatment;
weigh up the options, the risks and benefits, including the likelihood of success and any alternative forms of treatment;
appreciate the possible consequences of receiving, or not receiving, the proposed treatment; and
communicate their decision.

Even where there is an appointed welfare guardian or attorney, every effort should be made to help the person participate as much as possible in the decision to be made. Right 7(3) of the HDC Code provides that:

Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence.