As the population ages, and the prevalence of mental disorders such as dementia increases, it is likely that doctors will more frequently be required to assess the mental capacity of their patients.
Mental capacity is the ability to make a decision. If a person lacks capacity, they have an impairment or disturbance that leaves them unable to make a decision. The loss of capacity may be partial or temporary and it is possible for a person to have capacity to make one specific decision but not another.
For a person to have capacity to make a particular decision they must understand the decision to be made and the information provided about the decision – the consequences of making a decision must be included in the information given.
The person must be able to retain the information given for long enough to make the decision; be able to weigh up the pros and cons of making the decision and to communicate their decision. It is important to note that the Code of Health and Disability Services Consumers’ Rights states at Right 7:
“(2) Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent”
“(3) 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.”
The provisions of the Protection of Personal and Property Rights Act 1988 (“PPPR Act”) protect the rights of people in situations where they are shown to lack capacity, either wholly or partially, to make decisions about their welfare or financial affairs.1
The PPPR Act also allows for people who have mental capacity to give an enduring power of attorney to another person, which comes into effect when capacity is lost. Where it is established that a person lacks mental capacity, the court can make a personal order regarding the person’s care or welfare, or can appoint another person as a property manager or welfare guardian to make decisions for the person.
The court may seek a medical opinion on the mental capacity of the person to assist in reaching a decision as to whether an order should be made.