Legal and ethical framework

In Victoria “the right of an individual to choose” is protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Capacity is considered to be present where a client^[1]:

• understands the information relevant to the decision
• retains the information
• uses the information to form a decision (using reasoned processes)
• communicates their decision

Capacity is a legal construct, it is fluid, decision specific, and context dependent.

Capacity assessment is usually prompted by concerns brought forward by someone other than the patient about decision making capacity.

Your only concern must be the person’s capacity to make a particular decision at the time it needs to be made. The Act sets out the following two-stage test:

1. Does the person have a memory and or other cognitive impairment or is there some sort of disturbance affecting the way their cognition, whether temporary or permanent?
2. If so, does that impairment or disturbance mean the person is unable to make the decision in question at the time it needs to be made?