The interview process

The assessment interview follows the usual process of a clinical interview, however, because of the legal implications of the assessment, the interview needs to be more structured than a clinical interview.  Particular care may be required when a formal assessment is carried out by the person’s own clinician and takes place within the context of a continuing therapeutic relationship.  If the clinician is unfamiliar with the person, extra care may be needed to engage with them and attention should be paid to ensuring that the person has the appropriate personal and cultural support.   The success of the assessment is very dependent on the cooperation of the person being assessed.

Explain to the person that the purpose of the assessment is to ensure that they are fully informed about the decision, and whether they are in a position to either make the decision independently or make the decision with further support.

General health and cognition

Consider what assessment needs to be done of the person’s general health and cognitive state. If the assessing clinician is the patient’s regular GP, it may only be necessary to check that the patient’s level of cognition is “as good as it usually is in the present circumstances”, and to exclude such conditions as delirium aggravating the cognitive impairment of a known dementia. Where the person does not already have a diagnosis of dementia, for example, a more detailed assessment would be needed.

Cognitive functioning may be assessed with a recognised test such as the Montreal Cognitive Assessment (MOCA) or Mini Mental State Examination (MMSE), which provide a measure of the severity of cognitive impairment. It is important for the clinician to be aware that brief tests of cognitive function do not provide a measure of capacity. Their value is in the providing some rigour to the assessment of cognition and to allow a comparison of the person’s cognition at the time of the capacity assessment to their own, and the population baseline. Specific tests of frontal lobe function correlate better with measures of capacity because they assess problem solving, judgment and mental flexibility, which are all frontal lobe tasks.

Consider the four elements of the legal test: understand, retain, use or weigh, and communicate

Understand: does the person know what the decision is, why it is important for them (ie appreciate its significance) and why it needs to be made now, the alternative options available and the option to make no decision at all?

  • It may be useful to explain all of the information relevant to the decision to the person at the beginning of the assessment interview, unless it is apparent it has been clearly explained to them recently.
  • The level of understanding required must not be set too high.  It is not necessary that the person has the ability to understand every element of what is being explained to them.
  • The person must be given all the necessary information and options so that their capacity to weigh up those options can be fairly assessed: they do not need to start with a “blank canvas”.

Retain: is the person able to retain enough information for a sufficient amount of time for them to go through the decision-making process?

  • The length of time for which the person should be able to retain the information depends to some extent on the decision being made. In the case of a treatment decision, it may only be necessary to retain information about the possible complications and alternative options for long enough to make the decision or give consent. In that case the test would be asking the person to repeat the information back to the assessing clinician when the assessment is being done. On the other hand, it would be expected that if the decision was to change a will, the relevant information would be retained for longer. 

Use or weigh: is the person able to state the benefits and risks (consequences) of each option using relevant information and explain why they prefer one of the options?

  • This element includes the idea that the person is thinking about or “weighing” the options and that their thinking process is either logical, or at least based on the information available, and is actually engaging in the decision-making process itself. The person has the ability to ”foresee the consequences” of decisions (similar to the PPPR Act test), including the option of not making a decision.
  • Using and weighing information is the most difficult element to evaluate when assessing capacity for a number of reasons.   It is an assessment of a thinking process that the person may not easily demonstrate to the clinician. 
  • The standard of “weighing up” or “using information” can be difficult if the person is weighing the important medical facts against their personal convictions, beliefs or values. The assessment of an apparently bizarre idea or irrational decision, for example to refuse treatment, needs to be considered in the context of the person’s related beliefs and values taken as a whole. It may or may not turn out to be coherent in that light. It may be, for example, that in deciding to refuse lifesaving treatment, the person attaches no value to living in a particular condition (severe disability) and therefore does not give positive weight to the option of treatment. The test is of the person’s ability to weigh up the options: the weight to be attached to that information in the decision-making process is a matter for that person.
  • The standard of weighing up is usually a basic one; the information is considered in the decision-making process, and the person shows some flexibility to change their decision if additional information, even if hypothetical, is offered. For example, “if this decision could result in you suffering serious medical consequences or death, would you consider doing something different?” A person might not be considered able to use or weigh the information if they are unable to accept that they suffer from the condition that is requiring treatment. However, if the person refuses the advice of professionals, despite serious consequences, they may still be regarded as retaining capacity as long as they acknowledge these serious consequences.
  • It is also important to consider whether a person’s ability to use or weigh information is freely and voluntarily made where there is suspicion of susceptibility to undue influence or coercion from others.

Communicate: can the person communicate a decision or choice?

  • The inability to communicate is a stand-alone ground for establishing a person lacks capacity. Where a person cannot communicate a decision in any way, by talking, using sign language or any other means, they are unable to make a decision for themselves.
  • Any residual ability to communicate is enough so long as the person can make themselves understood.
  • An assessor should help facilitate communication, for example, by providing all necessary tools and aids, and enlisting the support of any carers or family who may assist with communication.
  © 2020 Alison Douglass