What is capacity?
Decisions about your health care, whether it be immediate treatment, or long term health care, are only valid if you have capacity when you make the decision. To 'have capacity', you must be capable of understanding the nature of the decision you are making and the effects that that decision will have on you and on others. If you have capacity, you are described as being 'capable'.
How is capacity measured?
There are no numeric measures or tests which can be done to determine if you have capacity. Capacity is not determined by whether you can perform a certain task, or by whether your decision is seen as wise by the people around you.
Capacity is measured by your ability to understand the consequences and nature of a specific decision. For example, you may have capacity to make a decision about whether to be treated for a particular health problem, because you can understand what is wrong with you, what the treatment will involve, and what the long term consequences of the treatment will be, but at the same time not have capacity to manage your financial affairs, because you are not capable of understanding the extent and nature of your finances, and the consequences of the decisions you are making about your finances.
People with mild intellectual disabilities may still be capable. It is also possible that you may lose capacity temporarily, for example if you suffer from an illness, but later recover from it. People in the early stages of dementia may lose capacity on a temporary basis.
Your capacity to make a decision is assessed at the time that you need to make that decision. If you are assessed as not being capable, this does not necessarily mean that you will never have capacity again.
What happens if a person doesn't have capacity?
If you don't have capacity and you have not specified how you want to be treated before losing capacity, someone else will make the decision about whether you should receive medical treatment, and if so, what sort of treatment that should be.
The Guardianship Act 1987 (NSW) sets out a list of people who will make that decision for you if you lack capacity. The decision will be made by a "person responsible" who will be either:
- a guardian or enduring guardian, or, if there is no guardian or enduring guardian,
- the most recent spouse, de facto spouse or same sex partner with whom you have a close and continuing relationship; or, if there is no spouse, de facto spouse or same sex partner,
- an unpaid carer who is now providing support to you or provided support before you entered residential care; or, if there is no carer,
- a relative or friend who has a close personal relationship with you
When appointing a guardian the Guardianship Tribunal must be satisfied that the proposed guardian's personality is generally compatible with the person under guardianship, there is no undue conflict between the interests and the guardian is willing and able to exercise his or her functions.
If there is no one falling within any of these categories, the Guardianship Tribunal may act as a substitute decision maker.
The decision maker gives consent if minor medical or dental treatment is required.
If the decision maker is not available, the doctor or dentist can proceed with minor treatment without consent if they can see from the patient's record that the treatment is necessary to promote the patient's health and well being and that the patient is not objecting to the treatment.
For major medical treatment, only the decision maker or the Guardianship Tribunal can give consent.
Consent cannot be given for treatments which are administered for the benefit of health carers, or health professionals. For example, a nursing home that is short of staff cannot ask a decision maker to consent to sedate residents to make it easier to care for them.
How can I retain control over my health care decisions if I lose capacity?
As discussed above, every person has the right to refuse or accept medical treatment, but the difficulty arises when you wish to ensure that you receive the treatment that you desire, when you are not in a position to make your preferences and desires clear.
You need to make clear your wishes about your future health care while you still have capacity. Some informal ways of doing this are by making your wishes known to friends, relatives and your doctor, and by writing your wishes down.
There are also some formal legal steps that you can take to ensure that your wishes are respected.
Consider the following possibilities:
- enduring guardianship; and
- advance health care directives.