Mental Capacity

Before I became a lawyer I read history as an undergraduate and post-graduate, and have always approached the development of the areas of the law in which I specialise from a chronological perspective. I find it’s the best way of understanding the trajectory along which ideas are moving when confronted by various forces.

The Court of Protection, of which I was the last Master and the first Senior Judge, has a venerable history dating back to about 1270, but it has never been the quiet backwater that most people assume it is. For the last two hundred years it has been on the cutting-edge of public policy. As Alison Douglass mentions in Chapter 1C of this report, since the great Reform Act 1832, when, to all intents and purposes, Britain first became a modern parliamentary democracy, we have changed our mental capacity legislation at least once in a generation.

England and Wales last looked properly at mental capacity a generation ago, during the early 1990s. In April 1991 the Law Commission published a consultation paper, Mentally Incapacitated Adults and Decision-Making: An Overview, which provided an overview of this area of the law, assessed the necessity for reform, and explored the best ways forward. This paper discussed and approved New Zealand’s recent legislation, the Protection of Persons and Property Rights Act 1988 (PPPR Act). The Law Commission produced three further consultation papers followed by a final report, Mental Incapacity, in 1995. The report contained a draft Mental Incapacity Bill, which was shelved for ten years before finally being enacted as the Mental Capacity Act 2005.

Alison Douglass is right when she says that “The PPPR Act is in need of review”. It is nearly thirty years old and needs to be updated to reflect contemporary thinking about disability, human rights and cultural diversity. She is complimentary towards our Mental Capacity Act 2005. It is well-drafted, concise legislation and good to work with. It clearly explains the key concepts of “capacity”, and “best interests” (understood as will and preferences), which are central to understanding the law. The Code of Practice has also been pivotal to the implementation of the Act by the wide range of people who use it.

But our legislation too, is in need of review. It is not fully compatible with the Convention on the Rights of Persons with Disabilities, which was adopted by the General Assembly of the United Nations on 13 December 2006, and ratified by New Zealand on 25 September 2008 and the United Kingdom on 8 June 2009. Abolishing adult guardianship law, as suggested by the UN Committee, would be a gigantic leap of faith into uncharted territory and may be one step too far this time around. However, I fully agree with Alison Douglass’ finding that substituted and supported decision-making models for mental capacity law can coexist comfortably.

I congratulate Alison Douglass on this report. Her recommendations are easily achievable and, if New Zealand were to implement them, its new legislation would be state-of-the-art, just as the PPPR was a generation ago.

Denzil Lush
Senior Judge of the Court of Protection England and Wales
4 July 2016

Professor Genevra Richardson

The publication of this report is hugely welcome. It provides a most timely and lucid analysis of the dilemmas raised by mental capacity law and practice. Dilemmas that have a very real impact on the lives of many of the most vulnerable of our fellow citizens, on clinical practice and on the law. The report reviews developments in international human rights law and contemporary thinking in ethics. Against the background of the experience of law reform in England and Wales, it analyses the legal position in New Zealand and provides some thoughtful recommendations for change. In the present context of widespread and often polarised debate concerning the law's proper approach to decision-making, the report's thoughtful and considered style is of particular value. In this Foreword I have the space to identify just two of the many difficult issues that Alison Douglass covers with great skill and sensitivity: support and liberty safeguards.

Over the last decade the focus of international human rights has shifted from a concern to protect people with impaired decision-making capacity by making decisions for them, to a desire to place the person at the centre by respecting their decisions and empowering them to exercise their legal rights just like anyone else. Central to this shift in focus has been the notion of support or supported decision-making. In Chapter 2 Alison Douglass gives a wonderfully clear account of the evolution of this "support paradigm" in international human rights and considers how far it is reflected in the law in New Zealand and in England and Wales. Of particular interest, is her analysis of tikanga Māori and her suggestion that New Zealand has a unique opportunity to enrich the wider debate by illustrating the importance of cultural influences.

Since the turn of the century, the law in England and Wales has struggled with the question of how best to safeguard the interests of people who lack mental capacity and who are effectively detained in supported residential or hospital care for their own protection. It is known as the question of the Bournewood gap after the case where it was first identified. The problem lies in trying to find the precise mechanisms for oversight and review that will provide real protection for an exceptionally vulnerable group of people without over regulation. In recognition of the very real need for proper oversight, we are working on improvements to our current system in England and Wales. In December 2016 the Law Commission is due to publish its report and is likely to recommend simplification of our existing Deprivation of Liberty Safeguards.

In Chapter 3 Alison Douglass reviews the law in England and Wales from the Bournewood case to the present day. This history is directly linked to the requirements of the European Convention on Human Rights and the attempts in England and Wales to comply with them. But, as Alison Douglass explains, the right to be free from arbitrary detention is not unique to the European Convention. It is both widespread within human rights treaties and well established within the common law. The dilemma raised by the Bournewood gap is not, therefore, limited to signatories of the European Convention and Alison Douglass concludes that the legal safeguards available in New Zealand are insufficient to plug it. With great insight and sensitivity she draws on the research she conducted in England and Wales to inform her recommendation that Liberty Safeguards be introduced through New Zealand's mental capacity legislation. Her understanding of the law in England and Wales, its origins and, most particularly, its practical implications has enabled Alison Douglass to produce a set of recommendations that are balanced and closely informed by experience elsewhere. The result perfectly reflects the value of careful comparative work and the recommendations that have emerged from it deserve the most serious attention.