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 on 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 or 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 of SA)
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