THE DRAMATIC increase in the diagnosis of medical conditions that affect cognitive function presents a serious challenge for science, medicine and society. Another area for concern and intervention relates to a person’s legal capacity if impacted by certain medical conditions. These include progressive conditions such as dementia and Alzheimer’s disease, neurological events leading to acquired brain injury such as stroke or tumours, traumatic brain injury, intellectual disability and psychiatricdiagnosis.
A lack of legal capacity is relevant in a number of areas of law.
1 Disposing of property by will or by gift (testamentarycapacity)
2 Entering into a bindingcontract
3 Enduring powers of attorney
4 Capacity to consent to or refuse medical treatment
5 Advanced health directives
6 Parenting capacity
7 Responsibility for criminal conduct and capacity to standtrial
Concerns about an individual’s decision-making abilities may trigger the need to consider their legal capacity. Capacity is decision-specific: incapacity in one area (e.g. financial management) does not imply capacity in other areas (e.g.parenting).
Once it has been determined that a person’s capacity needs to be assessed, the key issue is the type of assessment required and by what specialty. Determining legal capacity may require medical evidence of a person’s cognitive functioning and/ or psychological state. Given the range and complexity of medical conditions that affect cognitive function, it is important to identify the most appropriate medical/ allied health speciality for the assessment. For example, a clinical neuropsychologist, neurologist or psychiatrist can assess cognitive function, while a psychiatrist or psychologist may assess psychological function, depending on the complexity of the condition.
The assessment of legal capacity in criminal matters is an area of law that has traditionally sought expert medical assessments. However, with the Australian population ageing and the number of people aged 65 and over more than trebling in the last 50 years, there will be an increase in health conditions that impact upon cognitive capacity. Advances in the medical understanding of the range of patterns of cognitive dysfunction mean that assessing legal capacity will be an issue that legal practitioners will increasingly face, and will be increasingly complex toassess.
While legal capacity assessments have often been conducted retrospectively, a more proactive approach may be helpful to reduce potential litigation. Assessments can be undertaken to anticipate future legal proceedings that may call into question an individual’s capacity, as contemporaneous assessments reduce the practical and evidential issues inherent with retrospective assessments.
1 Ageing population will increase need for legal capacityassessments.
2 Advances in medical understanding have increased the complexity ofassessments.
3 Complex symptom aetiology may require multiple and different specialties for legal capacity assessments.
4 The right choice of specialty and specialist is a critical determinant of the quality of a legal capacity assessment.
5 Capacity is decision-specific; it is important to consider what type of capacity needs to beassessed.
Five tips for an effective legal capacity assessment
- Determine the most appropriate specialty.
- Ensure clear communication with specialist.
- Consider contemporaneous assessment.
- Provide a specific referral letter detailing the relevant legal capacity beingassessed.
- Ensure that specialist has all the relevant information available, including any known medical, social or environmental factors affecting capacity.
Mandy Holland Bachelor of Law (Hon), Graduate Diploma in Legal Practice, Masters in Business Administration (Continuing), Bachelor of Applied Science (Nursing), A liate of the Institute of Company Directors, is the CEO/ managing director of Australian Medico-Legal Group, a successful national provider of independent medical examinations.