Competency AssessmentCompetency Assessment

Competency and CapacityCompetency and Capacity

Capacity/CompetencyCapacity/Competency– Legal, clinical, ethical and social constructLegal, clinical, ethical and social construct– ““Ability of an individual to make autonomous Ability of an individual to make autonomous

choices”choices”– Task specificTask specific– May vary over timeMay vary over time– Not diagnosis dependentNot diagnosis dependent– Culturally mediatedCulturally mediated

Why Assess CompetencyWhy Assess Competency

ExpertiseExpertise– Some older people, particularly those with cognitive Some older people, particularly those with cognitive

impairment are likely to lose capacity to perform tasks impairment are likely to lose capacity to perform tasks and make decision and make decision

– Medico-legal expert in evaluation of cognitive Medico-legal expert in evaluation of cognitive disorders and associated risksdisorders and associated risks

Duty of careDuty of care– Those who lose capacity may become vulnerable to Those who lose capacity may become vulnerable to

abuse or neglectabuse or neglect– Those who lose capacity may place themselves or Those who lose capacity may place themselves or

others at riskothers at risk

When are we asked to assess When are we asked to assess competency?competency?

Impaired ability to communicateImpaired ability to communicate

Disorder of brain or mind which it is Disorder of brain or mind which it is suspected will impair decision making suspected will impair decision making abilities (not just dementia: depression abilities (not just dementia: depression psychosis mania intellectual disability)psychosis mania intellectual disability)

Person judged to be making unwise Person judged to be making unwise decisionsdecisions

Person is at risk of harmPerson is at risk of harm

Undue influence/AbuseUndue influence/Abuse

Definitions of CapacityDefinitions of Capacity

Appelbaum and GrissoAppelbaum and Grisso– 1)ability to express choice 1)ability to express choice – 2)ability to understand relevant information2)ability to understand relevant information– 3)ability to appreciate the significance of 3)ability to appreciate the significance of

information for one’s own situationinformation for one’s own situation– 4)ability to reason with relevant information so 4)ability to reason with relevant information so

as to engage in a logical process of weighing as to engage in a logical process of weighing optionsoptions

– Appelbaum TS, Grisso P. N Engl J Med 1988: 319; 1635-38Appelbaum TS, Grisso P. N Engl J Med 1988: 319; 1635-38

A capable person (5 Cs)A capable person (5 Cs)

knows the knows the contextcontext of the decision at hand of the decision at hand

knows the knows the choiceschoices available available

appreciates the appreciates the consequencesconsequences of specific of specific choiceschoices

is is consistentconsistent in their decisions in their decisions

can can communicatecommunicate their decisions their decisions

AutonomyAutonomy“self” and “law”“self” and “law”

"one who gives oneself their own law") "one who gives oneself their own law")

it refers to the capacity of it refers to the capacity of a rational individual to make an informed, a rational individual to make an informed, un-coerced decision. un-coerced decision.

Self-determination.Self-determination.

AutonomyAutonomy

Presumption of competence.Presumption of competence.

A person is assumed competent until A person is assumed competent until proven otherwise.proven otherwise.

The autonomy of a competent person The autonomy of a competent person must be respectedmust be respected

This is often at odds with the principle of This is often at odds with the principle of Benificence or “doing good”Benificence or “doing good”

Preservation of Autonomy Preservation of Autonomy PPPR Act Section 8 PPPR Act Section 8

(a) To make the least restrictive (a) To make the least restrictive intervention possible in the life of the intervention possible in the life of the person in respect of whom the application person in respect of whom the application is made, having regard to the degree of is made, having regard to the degree of that person's incapacity:that person's incapacity:

(b) To enable or encourage that person to (b) To enable or encourage that person to exercise and develop such capacity as he exercise and develop such capacity as he or she has to the greatest extent possible.or she has to the greatest extent possible.

Sliding Scale of Capacity Sliding Scale of Capacity Assessment Assessment (Shulman 2007)(Shulman 2007)

PPPR Act PPPR Act

Duties and responsibilities of welfare guardians / Duties and responsibilities of welfare guardians / property managers /attorneysproperty managers /attorneys– To act in the subject persons best interestsTo act in the subject persons best interests– Allow subject person to exercise capacity to the Allow subject person to exercise capacity to the

greatest extent capablegreatest extent capable– To act in good faith and with due careTo act in good faith and with due care– LiabilityLiability– Reporting requirementsReporting requirements– Integrate into the community as much as possibleIntegrate into the community as much as possible– Consult with the personConsult with the person

PPPR Act

Enduring Power of Attorney– Property– Welfare

Welfare Guardianship Orders (S12)

Property Management

Personal Orders S10)

Types of orderTypes of order

Section 10 (1) a-k personal orders of Section 10 (1) a-k personal orders of specific types (including)specific types (including)– d) enter,attend or leave an institution (other d) enter,attend or leave an institution (other

than a psychiatric hospitalthan a psychiatric hospital– e)be provided with living arrangements e)be provided with living arrangements

specifiedspecified– f) be provided with medical advice or f) be provided with medical advice or

treatmenttreatment

Types of order contTypes of order cont

Section 10 contSection 10 cont– g)educational, rehabilitative or therapeutic or g)educational, rehabilitative or therapeutic or

other servicesother services– h) that a person shall not leave the countryh) that a person shall not leave the country– j) that a person named in section 11 may j) that a person named in section 11 may

administer an item of propertyadminister an item of property

Welfare Guardianship Welfare Guardianship Section 12 Section 12

(2) A Court shall not make an order under subsection (2) A Court shall not make an order under subsection (1) of this section unless it is satisfied—of this section unless it is satisfied— (a) That the person in respect of whom the application is (a) That the person in respect of whom the application is made made whollywholly lacks the capacity to make or to lacks the capacity to make or to communicate decisions relating to any particular aspect communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of or particular aspects of the personal care and welfare of that person; andthat person; and (b) That the appointment of a welfare guardian is the (b) That the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare those particular aspects of the personal care and welfare of that person.of that person.

Powers of Attorney Powers of Attorney

(a) In relation to property, if the donor is not (a) In relation to property, if the donor is not wholly wholly competentcompetent to manage his or her own affairs in relation to to manage his or her own affairs in relation to his or her property; orhis or her property; or (b) In relation to personal care and welfare, if the donor(b) In relation to personal care and welfare, if the donor—— (i) Lacks, (i) Lacks, wholly or partlywholly or partly, the capacity to understand the , the capacity to understand the nature, and to foresee the consequences, of decisions in nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care respect of matters relating to his or her personal care and welfare; orand welfare; or (ii) Has the capacity to understand the nature, and to (ii) Has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions but wholly lacks the capacity to communicate decisions in respect of such mattersin respect of such matters

Powers of AttorneyPowers of Attorney

Legal instrument appointing person to make Legal instrument appointing person to make decisions on the donor’s behalfdecisions on the donor’s behalfMust be made on prescribed formMust be made on prescribed formFormal witnessing procedure including Formal witnessing procedure including requirement to assess donor’s capacity to requirement to assess donor’s capacity to appoint attorney.appoint attorney.Must be signed by the attorneyMust be signed by the attorneyMay specifiy when activated ( property)May specifiy when activated ( property)Specifies type of person to evaluate mental Specifies type of person to evaluate mental capacitycapacity

Powers of AttorneyPowers of Attorney

For welfare can be only one person but For welfare can be only one person but may specify who can take overmay specify who can take over

For property can be more that one personFor property can be more that one person

Requirements to act in the person’s best Requirements to act in the person’s best interestsinterests

Requirements to encourage donor to Requirements to encourage donor to develop and exercise capacitydevelop and exercise capacity

Powers of Attorney Powers of Attorney

Potentially 2 points at which decision Potentially 2 points at which decision making capacity needs to be assessedmaking capacity needs to be assessed– When the document is drawn up, or the When the document is drawn up, or the

Attorney appointedAttorney appointed– When the Attorney needs to start exercising When the Attorney needs to start exercising

their powers – ie when the donor has become their powers – ie when the donor has become partly or wholly incompetent with respect to partly or wholly incompetent with respect to welfare or propertywelfare or property

Specific Decisions:Appointing an Specific Decisions:Appointing an EPOAEPOA

A legal document which appoints someone to A legal document which appoints someone to make decisions for themmake decisions for them2 kinds of EPOA/ separate documents 2 kinds of EPOA/ separate documents How many attorneysHow many attorneysWhat kinds of decisions are coveredWhat kinds of decisions are coveredWhen it is activated ( when is it likely to be When it is activated ( when is it likely to be activated); when it can be revoked.activated); when it can be revoked.Who has final say once activatedWho has final say once activatedWho is the proposed attorney and reasons for Who is the proposed attorney and reasons for choosing that person vs otherschoosing that person vs othersMonitoring provisionsMonitoring provisions