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Guidelines and Policies

Assessment of Mental Capacity: A practical guide for Doctors and Lawyers (3rd Edition) UK
British Medical Association
Contains the Law Society and BMA’s practical guidelines on the assessment of mental capacity for all professionals working with people who lack, or who may lack, capacity to make decisions.


Guardianship Act 1987 NSW
NSW Parliament
Statutory Test for Competence: S33 notes that a person is considered incapable of providing consent to medical treatment if the patient: (a)  is incapable of understanding the general nature and effect of the proposed treatment, or (b)  is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

Toolkits and Protocols

Aid for Capacity Evaluation Canada
University of Toronto Joint Centre for Bioethics
The purpose of the Aid to Capacity Evaluation (ACE) is to help clinicians systematically evaluate capacity when a patient is facing a medical decision.

Capacity Toolkit NSW
Attorney General
Provides an overview and checklist for assessing a person’s competence to make an advanced care directive or decisions about medical or dental treatment.

Ethics and the Vulnerable Patient UK
UK Clinical Ethics Network
Training resource on ethics and the vulnerable patient.


C v Guardianship tribunal of Tasmania [2002] TasSC 29 Tas
The patient did not believe he was suffering from schizophrenia and so refused treatment. Even though he was able to understand the nature and effect of treatment he was considered incompetent.

Department of Health and Community Services (NT) v JWB (Marion’s Case)  (1992) 175 CLR 218 Cth
Court emphasised that each patient must be assessed individually, noting as an example that mentally impaired patients are not a homogenous group.

Re B (adult: refusal of treatment) [2002] 2 All ER 449 UK
Regarding the refusal of treatment: Competence requires that a patient has an understanding of their condition and the consequences of refusing treatment. If that understanding exists, it doesn’t matter that the reasons for their decision is rational, irrational, unknown or even non-existent.

Re C (adult, refusal of medical treatment) [1994] 1 All ER 819 UK
not publically available
A patient suffering from paranoid schizophrenia was found to be competent to refuse treatment. Lord Goff outlines three stages in deciding whether the patient can understand the nature, purpose and effects of the proposed treatment: 1. Can the patient comprehend and retain information. 2. Does the patient believe the information. 3. Can the patient weight the information, balance the risks and make a choice?

Re T (adult refusal of medical treatment) [1993] 4 All ER 649 UK
A patient’s right of choice exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent.

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