Consider the findings of the capacity assessment process and decide how to proceed

It may be possible to form an opinion about the person’s capacity during the assessment interview, and decide that no further assessment is required.  As a rule, this opinion should be explained to the person, either at the interview or at a suitable occasion after the interview. Capacity assessments for decisions that carry greater risk, are for the longer-term, or that may be contested in court, for example, testamentary capacity, may often require more than a single interview, particularly where the person’s condition may change.

Inconsistency in decision-making may suggest that the person lacks capacity.  For example, a person with fluctuating cognition due to delirium may make contradictory decisions.  Another type of inconsistency is the person who makes a will that is radically different from a number of previous wills and that contradicts their previously stated intentions.  Information from other members of the multidisciplinary team or from the person’s family may be another way of checking inconsistency with previous decisions or expressed wishes and out of character decisions.

Based on the findings of the whole assessment, the doctor will then need to decide whether the person has capacity to make the decision that they now need to make.   Even though the person may have some ability to make the decision, a binary yes/no assessment of their capacity to make the current decision may be required.  For example, regarding the activation of an enduring power of attorney or an application for the Family Court to make an personal care order, the clinician may be required to decide whether the person lacks capacity to make a significant decision (or range of decisions) or not.  

Recording your assessment

Document the findings of the assessment.  Any report or opinion for a formal assessment should be prefaced with an outline of the clinician’s expertise, experience, and contact and professional relationship with the person (for example, acting as their GP for 20 years), and the circumstances of assessment (for example, carried out in the person’s home for one hour).  Informal assessments should be recorded in the person’s clinical records.

The report of the assessment requires the clinician to be clear about the capacity decision that is being assessed, the information that is relevant to the decision, and an explanation whether the person was unable to satisfy the legal test and why.  The person will be considered to lack capacity if they are unable to satisfy any one of the elements of the test of: understand, retain, use or weigh, or communicate a decision. The clinician should give detailed, specific examples (actual quotes) of where the person has not shown the requisite abilities.

Where an intervention will be longer-lasting, for example an order to move into supported residential care, the clinician will need to describe the medical condition or disability that is causing the incapacity and whether any treatment is available that could restore the person’s capacity.

Where the person has capacity for the specific decision, but serious concerns have been expressed by family members or others, or where the decision carries significant risk, it is equally important to document the findings of the assessment, showing that the condition that is causing the impairment has been assessed and that despite the condition, the person has the ability to understand, retain, reason, and communicate adequately for the decision.

The prescribed information required for a certificate of mental incapacity for activating EPOAs (there is no longer a prescribed form) and the medical report form for court proceedings under the Protection of Personal and Property Rights Act 1988 (PPPR Act) are in the resources at the end of the toolkit.


  © 2020 Alison Douglass