In Aotearoa NZ, the assessment of decision-making capacity is an important aspect of various legal frameworks, including those related to welfare guardianship, property management and enduring powers of attorney.

Generally, a ‘relevant health practitioner’ is authorised to assess whether someone has decision-making capacity, meaning a medical professional whose scope of practice includes assessing a person's decision-making capacity, such as a doctor.

There is some debate about whether a nurse practitioner (with the appropriate qualifications) can undertake this assessment. It would be prudent to check this specific requirement out before approaching a nurse practitioner to undertake a decision-making capacity assessment.

Various pieces of legislation identify specific individuals who are authorised to assess decision-making capacity. The standards and criteria for these assessments can differ depending on the context, such as welfare guardianship, property management, and enduring powers of attorney. Here’s an overview:

Authorised Persons to Assess Decision-Making Capacity

Protection of Personal and Property Rights Act 1988

This legislation includes assessments in relation to Welfare Guardianship, Property Managers, and Enduring Powers of Attorney.

Under this Act, a medical practitioner is specifically identified as an authorised person to assess decision-making capacity. This includes assessing individuals for welfare guardianship and property management purposes.

Definition of ‘Medical Practitioner’: Section 2 of the PPPR Act provides the definition of a medical practitioner as:

‘A person who is registered under the Health Practitioners Competence Assurance Act 2003 as a medical practitioner.’

• Health Practitioners Competence Assurance Act 2003: To register under the Health Practitioners Competence Assurance Act 2003 as a medical practitioner in Aotearoa New Zealand, an individual must have completed a recognised medical degree, fulfilled clinical training requirements, and demonstrated competence and fitness to practice. The registration process involves submitting an application to the Medical Council of New Zealand, which assesses qualifications and ensures that only qualified individuals are permitted to practice medicine. 
  
  
• Medical Council of New Zealand: The Medical Council of New Zealand registers medical practitioners (doctors) who have completed the necessary qualifications and training, whereas nurse practitioners are registered with the Nursing Council of New Zealand. They have different regulatory frameworks governing their practice.

• Psychologist: In some cases, a registered psychologist may also be involved in assessing capacity, particularly when psychological factors may influence a person's ability to make decisions.

Legislative Framework

The Health and Disability Commissioner Act 1994 and the Mental Health (Compulsory Assessment and Treatment) Act 1992 also touch on aspects of capacity, particularly related to healthcare decisions and treatment. These laws reinforce the need for assessments to ensure individuals can make informed decisions about their health care.

Conclusion

In summary, under New Zealand law, a ‘medical practitioner’ is identified as an authorised person to assess decision-making capacity across various contexts, including welfare guardianship, property management, and enduring powers of attorney. The standards for assessing capacity may vary slightly depending on the context, focusing on the individual's ability to understand and communicate decisions relevant to personal care, welfare, and financial matters. If there are concerns about decision-making capacity, it is advisable to consult with qualified medical professionals or legal experts to navigate the assessment process appropriately.

How does a health practitioner decide if a person lacks capacity?

What is assessed?

A relevant medical practitioner will determine if an adult lacks capacity to make decisions through a clinical interview that assesses the person's ability to: 

• Understand the nature and purpose of a decision
• Understand the consequences of the decision
• Retain the information needed to make the decision
• Use the information to make the decision

The assessment is based on a functional test that considers the person's brain or mind function. A health practitioner may also consider the person's ability to communicate their decision. A neuropsychologist may also be involved in the assessment if the person's incapacity is borderline. They can use specialised assessments to identify the person's cognitive strengths and weaknesses. A health practitioner who knows the person is best (but practice nurses, social workers, and occupational therapists) may also contribute to the assessment. 

Toolkit for Assessing Capacity

The Law Commission has published a practical, legal, and clinical guide for lawyers and health practitioners to assess an adult's capacity to make decisions.  It includes a three-step method for assessing capacity.

1. Establish the relevant decision-making domain
2. Assess the individual's ability to understand the information related to that decision
3. Assess the individual's ability to weigh up the relevant information and make a decision; essentially focusing on understanding the situation, considering options, and communicating a choice in a relevant context. 

Key points about this method

Decision-specific

The assessment is always conducted in relation to a specific decision the individual needs to make, ensuring the evaluation is relevant to the situation.

Functional approach

It looks at the individual's actual ability to understand and weigh information, not just their cognitive abilities in general.

Flexible application

This method can be applied to various situations, including medical decisions, financial management, and legal matters. 

If you want to know more you can find this toolkit here: Toolkit for Assessing Capacity