According to the NSW Mental Health Act (MHA) 1993, mental ‘capacity’ refers to the understanding of general situations through the act of comprehension and memory. (The current 2007 MHA does not define this term). ‘Capacity’ is the ability to understand the nature, purpose and consequence of any act or transaction which one enters into. Having sufficient ‘capacity’ is necessary for a person to be able to make almost any legally binding decision, such as entering a contract, giving informed consent to medical treatment or authorising access to confidential medical information.
Legally, all rights of personal responsibility must be presumed until a person has been assessed professionally by a psychiatrist. The self-sufficiency displayed by the competent consumer must be recognised and respected, whilst the interests of the incapable consumer are protected by other means. Assessing a consumer’s capacity to make rational decisions must be based on the individual’s functionality in differing facets of life. Being incapable of comprehending situations, lack of memory and inability to premeditate actions are defined as factors of mental incapacity (Sullivan, 2004). Under the Guardianship and Administration Act 1993, ‘Mental Incapacity’ refers to the inability to look after ones’ own health, safety, or wellbeing or to organise one’s affairs.
There are well established indicators to assist in determining a lack of legal decision making capacity. People may be disorientated and confused about their location in time and space. They may be confused as to the identity of themselves or others, or they may demonstrate an inability to understand or communicate in a rational way. The NSW Law Society (2010) has provided a list of the general warning signs for lawyers when it comes to assessing an individual’s capacity, many of which refer to issues which may arise as a result of the onset of mental illness and which can prevent a person from being able to make legally binding decisions on their own behalf:
However, recent research confirms the notion that individuals should not be presumed to lack capacity simply on the basis of an unwise decision. It is important to understand that all individuals capable of making their own decisions will sometimes make irrational or unwise choices.
Generally speaking, the degree of capacity required for decisions needs to be proportionate to the importance and complexity of the decision being made. Thus, a person might be very unwell and disoriented which would disqualify them from making complex financial decisions, but they would still have the capacity to decide what they will have for lunch. This is a ‘partial’ capacity which is relatively easy to understand.
However, an individual may also have capacity issues with respect to certain issues only (partial incapacity). For example, an individual who suffers from an eating disorder may otherwise perfectly capable of making most decisions but have an irrational (and dangerous) decision making process when it comes to eating. They would thus be the exact reverse of the first example, in that they might be able to make complex financial decisions but not be able to safely decide whether to have lunch or what to have. Even though the individual may demonstrate irrational thinking in regards to specific issues, they still remain competent in other aspects of their lives.
In the same way, consumers experiencing paranoia might try to restrict access to treatment plans and personal information if harbouring suspicions towards families and carers. For example irrational patterns of thought caused by mental illness can induce consumers to make decisions which are not based on a realistic appreciation of their circumstances, such as the belief that the caregiver is a ‘spy’, or a ‘government operative’ (Roychowdhury, 2009; Etchells et al., 1999). A person experiencing these kinds of delusional symptoms can be argued to lack the capacity to make decisions about these specific issues just as the person with an eating disorder does not have decision making capacity around eating.
Capacity to make decisions can also fluctuate over time if one’s mental health (or illness) fluctuates. According to Roychowdhury (2009). Carers will usually be aware that mental disorders and their symptoms can change in severity based on biological, social and environmental factors. For example, a person may have full capacity so long as they adhere to a treatment regime, but they may lose this capacity if they cease medication and become more unwell. A person’s capacity should be reassessed after each fluctuation occurs, as it will determine the consumer’s ability to safely make decisions.
Capacity and the NSW Mental Health Act
Capacity is an important issue in mental health care because (as can be seen from the above) mental illness can affect a person’s ‘capacity’ to make decisions about issues related to their care. It is a formal legal requirement across Australia that consent to any kind of medical treatment must be made by a competent person: either by the person to receive the treatment, or if they are unable to do so by some other competent person on their behalf.
The ‘competent person’ who would normally make such decisions for a loved one incapacitated by illness in NSW, under section 33A of the NSW Guardianship Act (GA) 1987, is the ‘responsible person’, essentially defined as the ‘next of kin’. However, under the Guardianship Act, neither the ‘responsible person’ nor even the Public Guardian can approve treatment to which they know the incapacitated person objects (GA s46 (2)) unless they obtain specific authorisation from the Guardianship Tribunal (GA s46A). Unfortunately (and unlike most other illnesses), if a person lacks insight into their mental illness or denies they have one, they may actively resist and oppose any treatment.
Concerns that people may not want to make decisions consistent with their own best interests when their judgement is affected by mental illness have caused the NSW Parliament to grant ‘authorised medical officers’ the ability to authorise involuntary treatment under the Mental Health Act (subject to the oversight of the Mental Health Review Tribunal) should refusal to accept treatment place them or others at risk of harm. Similar laws apply in all Australian States and Territories. This effectively excludes consumers, families and carers from their normal role in approving treatment in these circumstances.
Primary Carer Recognition in the NSW Mental Health Act 2007
The ‘Primary Carer’ provisions in the Mental Health Act 2007 were enacted to address the issue of fluctuating consumer capacity and attitudes to carer involvement in treatment by allowing carers to be either formally nominated as ‘Primary Carers’ by consumers in writing before losing capacity, or to be identified and appointed by health services under a specific hierarchy listed in the MHA (section 71) if no nomination is in place and the consumer is too unwell to make one. Primary Carers have special rights to be informed about their loved one’s care and to be involved in treatment and discharge planning (s69-77 MHA). The Act also allows consumers to exclude specifically named people from being involved in their care (ss72 (2)).
While the consumer has the general right to nominate or exclude people from the Primary Carer role, the Act specifically provides at section 72(7) that:
(7) An authorised medical officer or a director of community treatment is not required to give effect to a nomination, or a variation or revocation of a nomination, if the officer or director reasonably believes:
(a) that to do so may put the patient or nominated person or any other person at risk of serious harm, or
(b) that the person who made the nomination, variation or revocation was incapable of making the nomination, variation or revocation.
Thus, the authorised medical officer or director of community treatment is given discretion to ignore a consumer’s nomination (or exclusion of a carer from the Primary Carer role) if it is made when they lack capacity (are ‘incapable’) or if the choices they want to make would expose them or others to significant safety risks.
As can be seen, it is precisely the durability of the Primary Carer nomination in the face of fluctuating capacity and attitudes on the part of the consumer which allows it to address many of the long standing issues for carers around the sharing of information and inclusion in care and discharge planning.
Balancing Carer and Consumer Rights
Etchells et al. (1999) (and other commentators) argue that a carer’s role in a consumer’s treatment is imperative for a positive recovery. However, recent studies have also found that if carers are given lawful decision making power over consumers, this power can be abused, for example by confining the consumer to unnecessary treatment or controlling all decisions (Roychowdhury, 2009; The Law Society, 2003). Carers can be ‘overbearing’ in some cases, and may consider the individual unable to make decisions even when the consumer is comparatively well and capable. This is inappropriate and a significant impediment to recovery, an important aspect of which is the consumer regaining the right to independently make decisions about their care. Once consumers regain capacity, their choices must be respected even if their carers do not agree with them.
Capacity is significant both legally and psychologically. All individuals are assumed and deemed capable until diagnosed otherwise. Capacity can be affected by physical, emotional or psychological occurrences. Additionally, incapacity may be either; consistent or fluctuating. According to current literature, an individuals’ ability to care for them-selves is highly dependent on the degree of their capacity. Those demonstrating fluctuating capacity are entitled to continuous reassessment whilst those who are consistently incapable are best served by having their carers collaborate in all aspects of their care. When a consumer is incapable of making a decision, the Primary Carer should be appointed to make decisions and access all treatment information (according to the MHA 2007). However, carers should take care not to be overbearing and accept that just because consumer sometimes want to make decisions that they might not agree with, this does not necessarily mean that they do not have the ‘capacity’ to be making them at all.
Appelbaum, P. S., Roth, L. H. (1981). Clinical issues in the assessment of competency. American Journal of Psychiatry, 138(11), 1462-1467.
Etchells, E., Darzins, P., Silberfeld, M., Singer, P. A., McKenny, J., Naglie, G., Katz, M., Guyatt, G. H., Molloy, W., & Strang, D. (1999). Assessment of patient capacity to consent to treatment. Journal of General Internal Medicine, 14, 27-34.
Mental Health Act (2007). Retrieved July 20, 2011, from http://www.austlii.edu.au/au/legis/nsw/consol_act/mha2007128/
The Law Society (2003). Client capacity: Civil and family. Retrieved 20 July, 2011, from http://www.lawsociety.com.au/ForSolictors/professionalstandards/Ethics/P...
The Law Society (2010). When a client’s capacity is in doubt: A practical guide for solicitors. Retrieved July 20, 2011, from http://www.lawsociety.com.au/idc/groups/public/documents/internetcontent...
Roychowdhury, A. (2009). Mental capacity assessments in secure care: An unnecessary complication? Psychiatric Bulletin, 33, 461-464.
Sullivan, K. (2004). Neuropsychological assessment of mental capacity. Neuropsychology Review, 14(3), 131-142.