Test for medical capacity: What GPs need to know

Neelima Choahan

12/07/2018 11:59:46 AM

For the second of a series on legal matters in general practice, newsGP spoke with two experts about what GPs need to know when called to determine if their patient has medical capacity.

GPs can often be called upon to determine if their patients have medical capacity to make legal decisions.
GPs can often be called upon to determine if their patients have medical capacity to make legal decisions.

Every day we make decisions: what to eat, what to wear, where to shop and what to buy. This ability to make decisions is what allows us to live independently.
But often GPs are asked to assess if their patient is still capable of giving consent.
Capacity is a legal concept and refers to a person’s ability to make their own decisions.
So what do GPs need to keep in mind when making an assessment that could have a huge effect on their patient’s life?
Stuart Le Grand, Le Grand Margalit Lawyers 
Stuart Le Grand, who is a personal injury lawyer, told newsGP that broadly speaking, a person who has capacity is a person who is able to make various decisions that affect their daily life.  

stu_le_grand-Article.jpgPersonal injury lawyer Stuart Le Grand says it is in Australia that each area of law has developed a standard of capacity relevant to particular transactions.
However, in some circumstances, due to injury, illness or other health related reasons, an individual’s ability to make certain decisions may be compromised.  
When a person lacks capacity they may require a substitute decision-maker to make those decisions for them. A substitute decision-maker may be appointed to make decisions in all aspects of ones’ life, or just in a discrete area.
‘Lawyers have an obligation to consider a person’s capacity before acting on instructions,’ Mr Le Grand said.
‘For example in civil litigation or drawing a will, lawyers will seek a medical opinion regarding their client’s capacity.’
Mr Le Grand said GPs should remember that when you take away someone’s ability to make a decision you are putting it in another’s hands.
Different types of capacity

  • Testamentary capacity – a person’s ability to make or change a valid will
  • Capacity to manage legal and financial affairs
  • Capacity to make lifestyle decisions, such as medical treatment and living arrangements
  • Capacity to make a contract
  • Capacity to get married
  • Capacity to vote
No uniform standard for capacity
Mr Le Grand said in Australia each area of law has developed a standard of capacity which is relevant to a particular transaction in question.
‘For example, for testamentary capacity in the context of wills, the relative standard is that the person must be of sound mind, memory and understanding, whereas the laws regarding voting and marriage capacity is the ability to understand the nature and significance of the particular transaction or activity.’
Capable until proven otherwise 
Mr Le Grand says common law presumption is that an adult is presumed to have decision-making capacity unless there is evidence to the contrary.
‘So you start with the position that everybody has capacity and should have the ability to make decisions,’ he said.
However, Mr Le Grand said some people believe capacity to be an artificial construct.
‘Basically it’s so subjective, there is no definite scientific test to use when assessing whether a person meets a particular capacity standard,’ he said.
‘Although clinicians can and do employ various assessment tools when testing for capacity, the assessment of decisional competence remains heavily a matter of clinical judgement.’
Mr Le Grand said GPs should tell the patient about the process as to what they are being instructed to do.
‘Doctors should conduct the assessment in a way that suits the individual,’ he said.
‘For example, the patient may benefit from having a support person there. Be mindful of the person’s language, ethnicity, cultural values and religious beliefs, and be objective and impartial.’
Common characteristics of being able to give consent
‘Generally speaking a person is said to have capacity if they understand the information relevant to the decision, and the effect of the decision,’ Mr Le Grand said.
‘They are able to retain that information to the extent necessary to make the decision, they can use or weigh that information as part of the process of making the decision, and they can communicate the decisions in some way which is not just by speech but might be gestures or other means.’
Consent is fluid
Mr Le Grand said an important point to remember is that incapacity may be temporary.
‘An example might be someone suffering from a psychiatric illness of sufficient severity to render them incapable of making decisions during their period of illness,’ he said.
‘Both doctors and lawyer need to just bear the following in mind that not only is capacity a fluid concept, we shouldn’t assume a person’s decision-making capacity based on their appearance.
‘Just because a person makes unwise decisions does not necessarily mean they do not have capacity.’
He said capacity is also decision specific.
‘They might be able to make some decisions but not all of them,’ Mr Le Grand said.
‘There are also scenarios where a person may have capacity if they are provided with support to make a decision.’
Know the context
‘The GPs should be properly briefed by the lawyer in terms of the context of the opinion for capacity,’ Mr Le Grand said.
‘I encourage doctors to contact the lawyer for further information if needed before making their assessment.’
However, he said, GPs can refuse to make an assessment if they feel they have insufficient information.
It is recommended that GPs record both the questions that were posed in their assessment, and the patient’s answers. This is vital evidence should a court be asked to consider the question.
GPs one of many experts to give opinion 
‘What should give GPs some comfort is that theirs is merely one opinion,’ Mr Le Grand said.
‘Sometimes more evidence is required and that can be a neuro-psychologist assessment. Often lawyers will seek a ruling from a tribunal as to whether a client has capacity.’
Dr Sara Bird, Manager, Medico-legal and Advisory Services, MDA National 
Dr Bird told newsGP a lot of the decisions that GPs make can have quite significant ramifications for their patients.

sara_bird-Article-(1).jpgMDA National’s Dr Sara Bird says doctors need to be very clear about what type of capacity assessment they are being asked to perform.

 And assessing someone’s capacity is no different.
‘As soon as you identify that someone doesn’t have capacity then there are significant ramifications for the patient,’ she said.
‘Because it means they are no longer in a position to be able to make a decision at that point of time about their own medical treatment.’
Dr Bird said generally a person with capacity to make healthcare decisions will be able to:
  • Understand the facts of the situation  – ‘Tell me about what is going on? Is someone else helping you to decide?’
  • Understand the main choices available  – ‘Can you tell me about what your options are? What would these treatments involve?’
  • Weigh up those choices , including benefits and risks  – ‘What are the benefits and risks for these options, including doing nothing? Which option is best for you?’
  • Make and communicate the decision – ‘So what are you going to do?’
  • Understand the ramifications of the decision – ‘What was important to you in making that decision? How did you balance the other choices and come to this decision?’
Frequent requests
Dr Bird said GPs can be approached regarding a patient’s capacity to give consent for medical treatment, testamentary capacity or the ability to enact an Enduring Power of Attorney.
Dr Bird says the tests to assess whether a person has capacity to make a will or enact an Enduring Power of Attorney document will be different to those about someone’s capacity to give consent to medical treatment.
So doctors need to be very clear what type of capacity assessment they are being asked to perform.
‘So, for example, a testamentary capacity assessment has quite structured legal criteria,’ she said.
‘It is the responsibility of the lawyer to make it clear that it is the assessment they are seeking and to provide the GP with the elements that need to be considered as part of a testamentary capacity assessment.’
Dr Bird said if GPs don’t feel comfortable about performing a complex assessment – such as if someone is capable of making a will – then they can refer the patient to someone else.
‘That can be quite a complex and unique type of assessment,’ she said.
‘And it’s not necessarily an assessment that every GP would be comfortable in providing.’
Giving evidence
Dr Bird said one of the challenges for GPs is if they have done an assessment of a patient’s testamentary capacity and it gets called into question.
‘Of course, that doesn’t mean they have done anything wrong, it’s just that there is a dispute about the will,’ Dr Bird said.
‘And they might have to give evidence in court.’
She said in those cases it is no different to giving evidence in any other context.
‘GPs should review their medical records and any reports they have provided,’ Dr Bird said.
‘Make sure you are familiar with your report, and when you go to court, answer the questions factually and honestly.’

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Dr John Coleridge   13/07/2018 8:06:39 PM

Capacity is a variable quantity, I agree. Please can you help me interpret a particular clinical situation.
A 40 year old woman is consuming 5-7 bottles wine daily, though she denies this.
She says she is sober though her blood alcohol taken on separate occasions shows .35mg% while she says she is sober. (She masks/hides her drinking well)
She says she would never drive her children while drunk, but looses her licence for same.
Her alcoholism is destroying her family and incurring visits from Child Protection.
She has been taken to the ED on multiple occasions with alcohol-induced falls, anger and behavioural outburst, and even on one occasion when there was concern about suicidality as she was researching auto-asphyxiation on the internet. She refuses hospital admission for alcohol detox because she says she has no alcohol problem.
The psychiatric service at the hospital says that she has capacity and cannot help her against her will.

My diagnosis is chronic alcoholism with associated hepatitis and cirrhosis, and also neurological signs of cerebellar dysfunction. She has an underlying personality disorder. She completely lacks insight into her condition and the need for treatment. Because she is always drunk and has a long history of alcoholism, she probably has some cognitive impairment.
Given the lack of insight and probable degree of cognitive impairment, does she lack capacity. Can she be forced into rehabilitation against her will?

Max Kamien   14/07/2018 10:02:07 AM

My most difficult involvement re testamentary capacity involved a successful businessman dying from pancreatic cancer, his high profile son and the son's QC. The son and the QC wanted me to declare the father incapable so that the son could assume control of the business. My patient was incapable for most of the day due to the narcotics needed to control his pain. But for about two hours of each day he was lucid. He was adamant that the son was not capable of running the business and would destroy it. The QC's bullying intervention had the potential to cloud my judgment since I abhor and do not respond to bullies. My patient lingered on for several weeks. The son then took over the business, pushed other potential managers aside and spent all the assets on the international high life. The business went into bankruptcy as the founder, in his moments of lucidity, had predicted.

Elizabeth Pemberton   8/07/2023 10:23:43 AM

I have a 79 year old husband in hospital with a fractured femur after a fall. He has difficulty remembering anything & this has been verified by neurologist Scans. He has never in his whole life organized things for himself or our family of three adult sons except for his academic work and the minute details involved in preparing for a fishing trip, but such trips have not been possible in the last seven years since he lost capacity to drive after a stroke. Now hospital says he has capacity to make informed decisions e.g. his discharge; organizing MyAgedCare package; and absorbing medical information which must be kept confidential to him. For some years now he cannot hold a to-and-fro conversation, but does so with compliance with medical authority figures & then cannot explain anything nor does he follow up medicos instructions, except take more & more tablets. None of the hospital staff are willing take him home themselves. It is expected that I be disregarded, as everything must be