Mental Capacity

Background Table of Contents Foreword Acknowledgments Glossary Executive Summary Introduction

Setting the Context 1A: The Legal Concept of Capacity 1B: Overview of Mental Capacity Law in New Zealand 1C: Overview of mental capacity law in England and Wales

Supported Decision-making 2A: Human Rights 2B: Legal Principles 2C: Ethics, Autonomy and the Law 2D: The Cultural Dimenson 2E: SDM in practice & case law Recommendations for supported decision-making

Liberty Safeguards 3A: Human Rights Framework 3B: The Bournewood Gap 3C: NZ - Implications of the Bournewood Gap 3D: Reform options - proportionate response Recommendations for libeerty safeguards

Defining Capacity 4A: Important Concepts of Capacity 4B: PPPR Act - Legal Tests 4C: MCA - Legal Tests Recommendation for a Single Test for Capacity

Best Interests 5A: Best Interests in New Zealand Law 5B: Best Interests at Common Law and Under the Mental Capacity Act Recommendation for Best Interests as a Standard for Decision-making

Research on People 6A: The Gap in New Zealand's Legal Framework 6B: International Standards and the Mental Capacity Act Recommendations for Research on People who Lack Capacity

Code of Practice 7A: The Mental Capacity Act (MCA) Code of Practice 7B: Development of a Code of Practice for New Zealand 7C: The First Step - A Toolkit for Assessing Capacity Recommendation for a New Zealand Code of Practice

Conclusion 8A: Provisions of the MCA that could be inserted into the PPPR Act 8B: Major Gaps in Current New Zealand Law 8C Implementation of the Law in Practice 8D: Further Features of the Mental Capacity Act

Appendices Appendix A: A Review of Selected PPPR Act Cases Appendix B: A Review of the Health and Disability Commissioner's Opinions about Capacity Appendix C: Legislation and International Human Rights Conventions Appendix D: A Toolkit for Assessing Capacity Appendix E: Letters of Support and People Consulted for this Project

ACKNOWLEDGEMENTS

Many people have contributed to this report. It would not have been possible to carry out this law reform project without the support and generosity I have received from a large number of people and organisations involved in the ever-expanding field of mental capacity law and practice. The multidisciplinary nature of this report is self-evident in the list of people set out in Appendix E, all of whom have willingly been interviewed or provided advice, resources and comments on various drafts of the report. I wish to thank them all for being so generous with their time and their knowledge.

I also acknowledge the people with impaired capacity, and their families, whom I have represented over the years and the valuable insights they have given related to the challenges they face in their lives.

I would like to thank the following people for hosting me as a visiting researcher while in England: Professor Genevra Richardson, Dickson Poon School of Law, Kings College of London; Senior Judge Denzil Lush, Court of Protection; Alex Ruck Keene, barrister, 39 Essex Street Chambers, London; and Dr Michael Dunn, Ethox Centre, University of Oxford.

In New Zealand, I would like to thank Professor John Dawson, Faculty of Law, University of Otago, for his advice and peer review of this report; Professor Ron Paterson and Justice Collins QC for supporting my fellowship application; Professor John McMillan and colleagues at the Bioethics Centre, University for Otago, for providing an academic base; Dr Greg Young, for our work together and making this a medico-legal project; Jessie Lenagh-Glue, for her able research assistance; Dr Royden Somerville QC and colleagues at Barristers Chambers, for their interest and support; Naomi O’Connor for editorial assistance; and my family, including the cover design by Emma Crampton.

Most of all, I would like to acknowledge the generous support of the New Zealand Law Foundation by awarding me the 2014 international research fellowship. Special thanks to Lynda Hagen and Dianne Gallagher for their practical advice and support.

Naku te rourou, nau te rourou, ka ora ai te iwi.¹
With your basket and my basket the people will flourish.

¹Whakatauki (proverb) provided by Janine Kapa-Blair (Kāi Tahu, Kāti Māmoe, Waitaha) Associate Dean – Māori/Manutaki Tuarua - Māori, Otago Business School, University of Otago, sourced from M Mead and N Grove Ngā Pēpeha a ngā Tīpuna 2003 (Victoria University Press, Wellington).