AND LEGAL PERSPECTIVE Dr Emma Fitzgerald Clinical Neuropsychologist - - PowerPoint PPT Presentation

CLIENT CAPACITY FROM A MEDICAL AND LEGAL PERSPECTIVE

Dr Emma Fitzgerald Clinical Neuropsychologist

CECELIA

• 19 years old
• MVA aged 5 ½ and sustained a severe brain injury
• Currently enrolled in an under-graduate degree where she requires special

considerations for assignments

• As she has matured, she has had more emotional outbursts, is socially

inappropriate at times

• She has failed her drivers licence test a number of times
• Neuropsychological assessment revealed a weakness for visuoperceptual

problem solving

• Please provide an opinion as to her capacity to provide instructions to her lawyer

and her capacity to manage any settlement payment

BILL

• 65 years old
• Was a cyclist hit by a car when he was coming home from his job as a cleaner in a

factory

• Sustained a moderate severity brain injury
• Has not returned to work, lives independently, plays the pokies and has a 'friend'
• Please provide an opinion as to whether Bill can provide instructions to his lawyer

and his capacity to manage any settlement payment

WHAT IS CAPACITY?

 Capacity is a person's ability to make decisions about things that affect their daily life, such as:

• where to live
• what to buy
• what support or services they need
• when to go to the doctor
• matters that have legal consequences, including:
• making a will
• getting married
• entering into a contract
• having medical treatment
• instructing their lawyer

WHAT IS CAPACITY?

 Broadly speaking, when a person has capacity to make a particular decision, they are able to do all of the following:

• understand the facts involved
• understand the main choices
• weigh up the consequences of the choices
• understand how the consequences affect them
• communicate their decision.

CAPACITY IS DECISION SPECIFIC

• Medical and treatment decisions
• Financial decisions
• Lifestyle decisions – i.e. where I live
• Testamentary capacity
• Fitness to stand trial
• Litigation capacity

PRESUMPTION OF CAPACITY

Under the law, you must presume that every adult has capacity

• Consider how a person’s culture, language, ethnicity or

religion impacts on their freedom to make decisions

DISORDERS THAT MAY AFFECT CAPACITY

• Intellectual disability
• Acquired brain injury (e.g.traumatic brain injury,

stroke, tumour, infection, alcohol - related brain injury)

• Major Neurocognitive Disorder (dementia)
• Mental illness (e.g. schizophrenia, bipolar disorder)

RED FLAGS AND WARNING BELLS

• A client demonstrates difficulty with recall or has memory loss
• A client has ongoing difficulty with communications
• A client demonstrates a lack of mental flexibility
• A client has problems with simple calculations which they did not have previously
• A client is disoriented
• There is a sense that “something about the client has changed”, including

deterioration in personal presentation, mood or social withdrawal

RED FLAGS AND WARNING BELLS

• A client is in hospital or a residential aged care facility when instructions

are taken

• A client has changed solicitors several times over a short period,

particularly if there has been a change from a solicitor who has advised the client for many years

• A client is accompanied by many other friends, family or carers to

interviews with the solicitor but is not given the chance to speak for themselves

• A client shows a limited ability to interact with the solicitor
• A client shows a limited ability to repeat advice to the solicitor and ask key

questions about the issues

WHO CAN CARRY OUT A CAPACITY ASSESSMENT

THE REFERRAL LETTER

• The client's background
• The reason the client contacted the solicitor
• The purpose of the referral - what is the legal task or decision being

considered

• The relevant legal standard of mental capacity to perform the task at hand
• Any known medical information about the client
• Information about the client’s social or living circumstances
• The client’s values and preferences if known

CAPACITY ASSESSMENT PRINCIPLES

1. Always presume a person has capacity 2. Capacity is decision specific 3. Don’t assume a person lacks capacity based on appearances 4. Assess the person’s decision-making ability – not the decision they make 5. Respect a person’s privacy 6. Substitute decision-making is a last resort

CAPACITY IS DECISION SPECIFIC

• Tea or coffee?
• Home or supported accommodation?
• To have surgery or not?
• To appoint a Power of Attorney?
• To settle or go to trial?
• Does the person have the capacity to make this decision now?

CAPACITY IS DECISION SPECIFIC

• Mental capacity is fluid
• Mental capacity can fluctuate over time
• Mental capacity can change over time (i.e. either

deteriorate or improve)

• Stress, grief, reversible medical conditions or

hearing/ visual impairments

DON'T ASSUME A PERSON LACKS CAPACITY BASED ON APPEARANCES

ASSESS THE PERSON'S DECISION MAKING CAPACITY – NOT THE DECISION

 Because a decision is unwise, reckless or wrong does not mean a person lack's capacity  BUT  You may question a person's capacity if the decision:

a) puts them at significant risk of harm or mistreatment, and/or b) is very different from their usual decisions.

SUBSTITUTE DECISION-MAKING IS A LAST RESORT

• Consider assisted decision making
• You need to consider that everything possible has

been done to support them to make their decision, before deciding a person does not have capacity

THE CAPACITY ASSESSMENT

A formal capacity assessment should ideally involve:

• formal cognitive testing
• a structured/ semi-structured interview

NEUROPSYCHOLOGICAL ASSESSMENT

• Intellectual functioning (WAIS-IV)
• New Learning and Memory (WMS-IV)
• Language (receptive and expressive)
• Executive Functioning (planning, organising, multi-

tasking, self-monitoring, inhibition, abstract thinking)

• Mood and Behaviour (self-report & informant

questionnaires)

MENTAL INCAPACITY – WHERE DO WE SET THE BAR

 District Court Civil Rules  disability—each of the following is a person under a disability—  (a) a child;  (b) a person whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities;  (c) a person who is not physically or mentally able—  (i) to manage his or her own affairs; or  (ii) to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);

MENTAL INCAPACITY – WHERE DO WE SET THE BAR

 Guardianship & Administration Act 1993  mental incapacity means the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of— (a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or (b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever;

MENTAL INCAPACITY – WHERE DO WE SET THE BAR

 CLCA: 269H—Mental unfitness to stand trial  A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is— (a) unable to understand, or to respond rationally to, the charge or the allegations

• n which the charge is based; or

(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or (c) unable to understand the nature of the proceedings, or to follow the evidence

• r the course of the proceedings

MENTAL INCAPACITY – WHERE DO WE SET THE BAR

CECELIA

 Does she have the capacity to instruct her lawyer?

• Does she:
• understand the facts involved
• understand the main choices
• weigh up the consequences of the choices
• understand how the consequences affect them
• communicate their decision

CONCLUSIONS

Capacity assessments are a serious business:  an incorrect assessment can result in the denial of a fundamental human right; the right to autonomous decision-making or ‘self- determination’

RESOURCES

• Capacity Toolkit (NSW)
• When A Client's Mental Capacity Is In Doubt: A Practical guide For Solicitors (The

Law Society of NSW)

• Legal Capacity & Litigation Guardians In NSW by Laura Joseph
• Client Capacity Committee: Statement of Principles With Guidelines (Law Society
• f SA)