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Cultural factors must be considered when assessing capacity

Antonia is in her mid-eighties. She migrated to Australia from Italy in the 1960s. Antonia’s first language is Italian, and she speaks only limited English. She received the equivalent of a grade three education. Antonia’s communication is hampered by a hearing impairment. After Antonia contracts the flu, her doctor places her in hospital.

The treating team speak with Antonia without an interpreter present and when Antonia does not have her hearing aids in. Consequently, she feels unsure about what is happening. The treating team interpret Antonia’s uncertainty as a lack of understanding and arrange for Antonia to be assessed by the geriatrician.

The assessment is conducted on the ward, whilst Antonia is still unwell. An Italian interpreter is present but struggles to understand Antonia’s dialect. The geriatrician uses a set of standard tests which do not really take into account Antonia’s cultural or educational background. The geriatrician assesses Antonia as having impaired capacity and the treating team are concerned about discharging her given that she lives alone.

As a result, the treating team applies to the Guardianship and Administration list of the Victorian Civil and Administrative Tribunal (VCAT). They seek the appointment of a guardian who can make decisions for Antonia about accommodation and access to services.

The geriatrician uses a set of standard tests which do not really take into account Antonia’s cultural or educational background.

Antonia contacts Seniors Rights Victoria for assistance. By this time, she is feeling much better and a further specialist assessment is arranged for her. The assessment is conducted at Antonia’s home while she is wearing her hearing aids. An Italian interpreter who speaks her dialect is present and the geriatrician is provided with a full history of Antonia’s cultural and educational background. Antonia is assessed as having capacity to make reasonable decisions about financial and personal matters. 

When the matter returned to VCAT, the lawyer from Seniors Rights argues that  Antonia was initially assessed when she was unwell, the interpreter could not understand her well and there were lots of distractions in the hospital. We said that because of these factors and other factors she was not able to fully participate in the assessment

The Tribunal Member found that Antonia could make reasonable decisions and did not appoint a guardian. Antonia is now living happily and independently at home where she receives help with tasks such as cleaning and shopping.