Today at QUT Law research seminars, Dr Kelly Purser talks about legal capacity, focusing on the big problems: wills, advance health directives, and powers of attorney.
Australia is an aging population, which means there will be lots of people without capacity. Incidences of dementia are likely to increase 6-fold by 2050. It’s already the single largest cause of disability in people aged 65 or older.
Currently, there are no guidelines for assessing capacity. It’s all left to the individual solicitor and sometimes a doctor. “It just comes down to dumb luck.”
Purser’s evidence shows that doctors are really hesitant to make an assessment of capacity. They don’t want to get it wrong and get dragged into court.
Purser took a mixed methods approach: surveyed 150 lawyers and doctors, then 30 interviews. Research was done within the framework of therapeutic jurisprudence, which highlights three issues: incompetency labeling (making a determination that someone lacks capacity is often a self-fulfilling prophecy); the role of the neutral fact finder; and autonomy and control.
The big outcome of Purser’s research is that there’s not enough discussion between legal and medical professions. Lawyers often do not explain what the processes are and what is expected; Doctors are then hesitant to get involved and don’t know how the system works.
Purser argues that we need national guidelines on assessing capacity. This is going to be a much bigger issue as we start to move towards supported decision making (e.g. under the CRPD). We need education, information, and training for both doctors and lawyers. Lawyers need to understand the standards of capacity, so that they can explain what doctors need to do.
Finally, we need to encourage people to get these arrangements sorted out in advance of losing capacity.
You can see Dr Purser’s research here.