Capacity and Competence
Context: Capacity concerns in setting of cognitive impairment / dementia / delirium / family or EPOA involvement
Key Principle
Decision-making capacity is the person’s ability to make a specific decision at a specific time.
Capacity is:
| Principle | Meaning |
|---|---|
| Decision-specific | A person may have capacity for one decision but not another |
| Time-specific | Capacity may fluctuate, especially with delirium, infection, pain, hypoxia or medications |
| Functional | Based on the patient’s actual ability to understand and reason |
| Dynamic | Can improve or deteriorate |
| Not diagnosis-based | Dementia, mental illness or disability does not automatically mean incapacity |
| Not score-based | MMSE/MoCA/GPCOG scores support but do not determine capacity |
Adults are presumed to have capacity unless there is evidence to the contrary.
In Queensland, relevant legislation includes the Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1998 (Qld).
Capacity vs Competence
| Term | Meaning |
|---|---|
| Capacity | Clinical assessment of ability to make a decision |
| Competence | Legal determination, usually made by a court |
In practice, clinicians often use the term capacity. Courts determine legal competence.
Core Elements of Capacity
The patient must be able to:
| Domain | Clinical test |
|---|---|
| Understand | Understand relevant information about the decision |
| Retain | Retain the information long enough to make the decision |
| Use or weigh | Consider risks, benefits, alternatives and consequences |
| Communicate | Communicate a clear and reasonably consistent choice |
A patient can make a decision that others consider unwise and still have capacity, provided the above elements are met.
Practical Capacity Assessment Structure
1. Define the decision being assessed
Document the exact decision, for example:
| Decision type | Example |
|---|---|
| Medical treatment | Consent to surgery, refusal of hospital admission |
| Accommodation | Staying at home vs RACF placement |
| Financial/legal | Managing finances, changing EPOA, making a will |
| Safety | Driving, accepting home supports |
| Healthcare | Medication changes, investigations, advance care planning |
Capacity should not be assessed globally unless the question itself is global.
2. Optimise conditions before assessment
Before assessing capacity, address reversible factors:
| Factor | Action |
|---|---|
| Pain | Treat pain first |
| Hypoxia | Check oxygen saturations and treat |
| Hypoglycaemia | Check BGL if clinically indicated |
| Delirium | Screen and treat underlying cause |
| Infection/metabolic disturbance | Investigate and manage |
| Hearing/vision impairment | Ensure hearing aids, glasses |
| Language barrier | Use accredited interpreter |
| Distress/distraction | Provide calm, private environment |
| Medication effects | Review sedatives, opioids, anticholinergics, alcohol/substances |
This is important because capacity may improve once reversible contributors are corrected.
3. Assess the four capacity domains
Suggested questions:
| Domain | Example questions |
|---|---|
| Understanding | “Can you tell me in your own words what the problem is?” |
| “What treatment or option has been recommended?” | |
| Retention | “Can you tell me again what the options are?” |
| Weighing/reasoning | “What do you think could happen if you accept this option?” |
| “What do you think could happen if you decline?” | |
| Alternatives | “Are there any other options you have considered?” |
| Communication | “What would you like to do?” |
| Consistency | “Is that still your decision after we have discussed the risks?” |
Role of Cognitive Testing
Cognitive screening may support assessment but does not replace clinical capacity assessment.
| Tool | Role |
|---|---|
| MMSE | General cognitive screening; less sensitive for executive dysfunction |
| MoCA | More sensitive for mild cognitive impairment and executive dysfunction |
| GPCOG | Useful Australian GP cognitive screening tool |
| RUDAS | Useful for culturally and linguistically diverse patients |
| KICA | Validated for older Aboriginal and Torres Strait Islander people |
| CAM | Delirium screening |
Important documentation point: Cognitive score alone does not determine capacity. Low MMSE does not automatically mean incapacity, and normal cognition does not always guarantee capacity for complex decisions.
Dementia and Capacity
Dementia does not automatically remove capacity.
Patients with mild dementia may still have capacity for:
| Possible retained capacity |
|---|
| Routine healthcare decisions |
| Simple medication decisions |
| Consent to basic investigations |
| Accommodation preferences |
| Some financial decisions |
Capacity may be impaired in more advanced dementia due to:
| Impairment |
|---|
| Poor insight |
| Executive dysfunction |
| Impaired judgement |
| Reduced ability to weigh risk |
| Fluctuating cognition |
| Communication impairment |
Delirium and Capacity
Delirium commonly impairs capacity because of impaired attention, fluctuating cognition and disturbed reasoning.
If delirium is suspected:
| Action |
|---|
| Treat as medical emergency |
| Identify cause: infection, metabolic disturbance, hypoxia, medications, pain, constipation, urinary retention |
| Delay non-urgent capacity decisions if possible |
| Reassess once delirium improves |
| Use substitute decision-maker only if the patient lacks capacity for the relevant matter |
Mental Illness and Capacity
Mental illness does not automatically equal incapacity.
A patient with depression, psychosis, bipolar disorder or anxiety may still have capacity if they can understand, retain, weigh information and communicate a decision.
Capacity may be impaired if symptoms directly affect the decision, for example:
| Example |
|---|
| Delusional beliefs driving refusal of lifesaving treatment |
| Severe depression causing nihilistic reasoning |
| Mania causing grossly impaired judgement |
| Psychosis preventing understanding of reality-based information |
Enduring Power of Attorney — QLD Context
In Queensland, an Enduring Power of Attorney (EPOA) generally becomes active for relevant matters when the person loses capacity for that matter.
Important points:
| Principle |
|---|
| Memory impairment alone does not activate EPOA |
| Dementia diagnosis alone does not activate EPOA |
| If the patient has capacity, the patient remains the decision-maker |
| EPOA involvement should match the specific area of incapacity |
| The patient should still be involved as much as possible |
Substitute Decision-Making Hierarchy — Queensland
If the patient lacks capacity for a health matter, consider:
| Order | Substitute decision-maker |
|---|---|
| 1 | Advance Health Directive, if valid and applicable |
| 2 | Enduring Power of Attorney for health/personal matters |
| 3 | Statutory Health Attorney |
A statutory health attorney is usually a spouse/de facto partner, unpaid carer, close friend or relative, depending on circumstances.
Can a GP Assess Capacity?
Yes. GPs can assess capacity for many routine clinical decisions, including:
| GP capacity assessment examples |
|---|
| Consent to treatment |
| Refusal of hospital admission |
| Medication decisions |
| Acceptance of home supports |
| RACF placement discussions |
| Driving concerns |
| Advance care planning discussions |
However, more complex, disputed or high-risk matters may require specialist assessment.
When to Involve a Specialist or MDT
Consider referral to geriatrics, old age psychiatry, neurology, neuropsychology, occupational therapy or social work when there is:
| Situation | Reason |
|---|---|
| Diagnostic uncertainty | Dementia subtype unclear |
| Fluctuating cognition | Delirium vs dementia unclear |
| Rapid cognitive decline | Neurology/geriatrics input |
| Young-onset cognitive impairment | Specialist workup required |
| Severe BPSD | Old age psychiatry/geriatrics |
| Family conflict | Medico-legal risk |
| Suspected elder abuse | Safeguarding concern |
| Complex financial/legal decision | Higher threshold |
| Changing EPOA or will | Legal/testamentary capacity issue |
| Driving safety concern | OT driving assessment may be required |
| High premorbid function with subtle decline | Neuropsychology may clarify deficits |
Role of Neuropsychology
Neuropsychological assessment is useful when the capacity question is complex or cognition is subtle.
| Indication | Purpose |
|---|---|
| Mild cognitive impairment | More sensitive testing |
| High premorbid functioning | Detect subtle decline |
| Diagnostic uncertainty | Clarify cognitive pattern |
| Legal dispute | Objective assessment |
| Testamentary capacity | Detailed cognitive evaluation |
| Financial capacity dispute | Executive function assessment |
| Return-to-work concern | Functional cognition assessment |
Documentation Template
Capacity assessment note
Decision assessed:
Capacity to make decision regarding: [specific decision].
Clinical context:
Patient assessed in context of [dementia/delirium/family concern/refusal of treatment/accommodation decision].
Optimisation of assessment:
Assessment performed in a calm environment. Pain/distress addressed. Hearing/vision aids used as required. Interpreter used/not required. No evidence of acute delirium/intoxication/hypoxia at time of assessment, or reversible factors considered.
Information provided:
Discussed diagnosis/current concerns, proposed options, benefits, risks, alternatives and consequences of declining recommended care.
Patient response:
| Domain | Findings |
|---|---|
| Understanding | Patient was able/unable to explain the relevant information in their own words |
| Retention | Patient was able/unable to retain the information during the consultation |
| Weighing/reasoning | Patient was able/unable to weigh risks, benefits and alternatives |
| Communication | Patient was able/unable to communicate a clear and consistent decision |
Cognitive screening:
[MMSE/MoCA/GPCOG/RUDAS/CAM] performed/not performed. Result: [score]. Result considered supportive only and not determinative of capacity.
Conclusion:
On assessment today, the patient does / does not demonstrate capacity to make the specific decision regarding [decision].
Capacity assessment is decision-specific and time-specific.
Plan:
- Patient remains primary decision-maker if capacity present.
- If capacity lacking, involve substitute decision-maker according to Queensland hierarchy.
- Treat reversible contributors if present.
- Consider MDT/specialist input if complex, disputed or high-risk.
- Reassess capacity if clinical condition changes.