A Capacity Report is a report from a medical practitioner or other healthcare professional on the capacity of the Relevant Person.
The capacity assessment used is called a ‘Functional Test’ for capacity. This means the assessment is about a specific decision that needs to be made at a specific time. Applying the functional test, a person can be said to lack capacity to make a decision if they are unable to do one of the following:
- Understand information relevant to the decision,
- Retain that information long enough to make a voluntary choice,
- Use or weigh up that information as part of the process of making the decision,
- Communicate their decision in whatever way they communicate (not only verbally).
There is no form or template in the Circuit Court rules for a Capacity Report. The rules state that the report shall:
- include details of the extent to which the person making the report has treated the Relevant Person and include details of any examination or assessment undertaken for the purposes of making the report, and
- report on matters within the person’s expertise which relate to the Relevant Person’s capacity, considered in accordance with section 3 of the Act, to the extent relevant to the relief sought in the Capacity Application, including the likelihood of recovery of the Relevant Person’s capacity.
While the Circuit Court rules set out that one report must be filed, the Court can request more than one report depending on the case.
What classes of healthcare professionals can provide capacity assessments/reports?
The Assisted Decision-Making (Capacity) Act 2015 (Prescribed Classes of Healthcare Professionals) Regulations 2023 (S.I. No. 204 of 2023), set out the classes of healthcare professionals (in addition to medical practitioners) who may provide capacity assessments. They are -
- Occupational therapists – registered members of the profession of occupational therapist
- Registered midwives
- Registered nurses
- Social workers – registered members of the profession of social worker
- Speech and language therapists – registered members of the profession of speech and language therapist
However, an assessment cannot be provided by an immediate family member of a Relevant Person. Immediate family member means –
- a spouse, civil partner, or cohabitant,
- a child, son-in-law or daughter-in-law,
- a parent, step-parent, mother-in-law or father-in-law,
- a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law,
- a grandparent or grandchild,
- an aunt or uncle, or
- a nephew or niece
Psychologists are not included among the healthcare professionals who are entitled to provide a capacity assessment.