Dr. Caroline Dalton:

The question is reflective of the complexities of being able to assess capacity in any one individual, because when people make decisions they do so for a whole range of reasons. From a rudimentary perspective, assessing capacity is about looking at the individual's ability to make the decision that he or she has made at the time it has been made. There are other issues that come up in terms of fluctuating capacity. People's capacity changes over time and their ability to make a decision will change over time. That will also create issues in regard to the assessment of capacity. When we look at a piece of legislation it depends on whether we are happy that once a decision is made in advance that the decision holds or if the person needs to still have a decision-making capacity at the exact time that the decision is being enacted or acted upon. There is a range of complexities around that. My point about how we assess capacity is linked back to understanding or looking at processes for how we engage in assessment by understanding that there is a whole range of influences that need to be dug down through with any one individual in order to be able to assess how he or she came to a decision, who was there to support him or her, the information provided to him or her, how that information was provided and, to take up the point made by other panellists, if the person is making this decision in the absence of having full access to the level of choice and supports to which there should be access and that we should be providing, including very good end-of-life care. It is about all those factors when we look at one individual case. When we work with one person, it is his or her own belief system and the things that are impacting on the decision because not every decision a person makes is just linked back to what he or she wants for themselves but also in terms of relational autonomy and capacity and looking at those around them as well. Those things need to be captured or thought about when we look at how and why somebody has come to a decision and whether reflecting on all of those we are happy that they have made that decision and that it is fully autonomous, it has not been unduly influenced, and that the decision holds for the individual. There are many complexities involved in identifying how we capture that beyond just looking at whether a person has capacity to make that decision right now and what other background fundamental aspects of life that link back into that.