Dr Tuly Rosenfeld trained at Sydney Hospital and Westmead Hospital before his appointment as Geriatrician at Prince of Wales Hospital in Randwick. His main clinical interests have been in the areas of developing services for people suffering from chronic progressive degenerative illness especially those with brain diseases. The assessment of capacity in these patients has been a focus of his more recent work.
Too Ill To Will - The Determination Of Capacity By Doctors At The Bedside Of Ill Or Dying Patients.
Assessing mental capacity to undertake legal issues, such as making a will when a patient is ill, in the terminal phase of an illness or at a person's deathbed is fraught with challenges for both doctors and lawyers. Numerous issues need to be considered when assessing capacity for legal matters such as a Power of Attorney, the appointment of a guardian or making a will. Questions about capacity may also arise in decision making about treatment choices.
Determining capacity is more challenging when the assessment needs to be undertaken at the bedside of an ill or dying patient. The nature and severity of the illness, effects on cognition of a terminal illness, the effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers, and a range of other issues confound and complicate the assessment of capacity in these circumstances.
What is the doctor's role in properly assessing capacity in this context and how does this role intersect with the legal issues? Doctors will play an increasing role in assessing capacity in this setting. The ageing of society, more effective treatment of acute illness and, often, the prolongation of dying are only some of the factors leading to this increasing need. However, despite its importance and increasing prevalence, the literature addressing this challenging practical area is scarce and offers limited guidance. This paper examines these challenges and discusses some practical approaches.