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 Dimension 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 liberty 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

2B: LEGAL PRINCIPLES

Supported decision-making – in law

Supported decision-making is a central concept in art 12 of the CRPD. It is based on the idea that all adults, except in limited circumstances, have some level of ability and should be entitled to make decisions expressing their will and preferences, but may require varying levels of support to do so. Rather than question whether a person has capacity to make decisions – reflecting a “binary view” of capacity and decision-making – the preferable approach is to ask what level of support, or what mechanisms, are necessary to support people to express their will or preferences.²⁷¹ Supported decision-making can be referred to as a process, a mechanism, a system, or a framework.²⁷² The concept encompasses a range of support mechanisms from informal to formal. Carney summarises a number of these: ²⁷³

effective communication, especially in providing information and advice to a person and ensuring they are able to communicate their decisions to others;

spending time to determine a person’s preferences and wishes;

informal relationships of support between a person and members of their social networks;

agreements or appointments to indicate that a relationship of support exists; and

statutory relationships of support – whether through private or court/tribunal appointment.

Unlike traditional guardianship law, supported decision-making focuses on people retaining their legal powers of decision, but a third party is authorised by law to do such things as provide assistance, or access and share their personal information.²⁷⁴ As understood in human rights law, supported decision-making involves more than support with decision- making: it is about providing an alternative legal mechanism that give people legal standing where possible and to recognise their needs within the framework of the law.²⁷⁵
Legal capacity can be understood as a continuum in which supported decision-making occurs throughout. There is a point along the continuum in which a person may be found unable to make a legally binding decision, even with support (here the person loses legal agency but retains legal standing).²⁷⁶ Where this point is to be found depends on the complexity of the decision. But the likely will and preferences of the person still remain central to the decision- making process.
There are some challenges in establishing legal frameworks in line with the CRPD. The lack of a clear definition of supported decision-making has led to conceptual confusion about what it means in law. Its connection to the concept of legal capacity is not entirely clear. Nor is it clear how substitute decision-making and the modern notion of supported decision-making are to co-exist. There will be some situations when a person is completely unable to participate in decisions, such as when in a coma. There will also be circumstances where a person with impaired capacity is given support but they may still lack the ability to make a decision for themselves. In these situations a substitute decision-maker will need to make a decision for them.

Supported decision-making – a legal principle

Existing legal principles in both the MCA and PPPR Act implicitly assume that there is a role for supported decision-making, more expressly so in the MCA. These legal principles and concepts govern all decisions made and actions taken under both mental capacity laws. They are the aids to interpreting the law. Both the MCA and the PPPR Act have principles that are remarkably similar except for the MCA’s overriding decision-making principle of the person’s best interests.²⁷⁷ By comparison, best interests is not an express principle of the PPPR Act; instead its primary objectives are to make the least restrictive intervention and to maximise the person’s capacity to participate in decision-making.²⁷⁸

²⁷¹ Australian report, above n 264 at 93.

²⁷² Browning, Bigby and Douglas, above n 226 at 36.

²⁷³ T Carney “Participation and Service Access Rights for People with Intellectual Disability: A Role for the Law?” (2013) 38 J Intell Devel Disab 59 at 66.

²⁷⁴ T Carney, above n 273 at 60.

²⁷⁵ Browning, above n 226 at 40.

²⁷⁶ Browning, above n 226 at 39.

²⁷⁷ Mental Capacity Act 2005, ss 1(5) and 4.

²⁷⁸ Protection of Personal and Property Rights Act 1988, s 8(1) and (2). Under the HDC Code, where a person has diminished competence for decision-making they still retain the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence: Right 7(3).

Figure 2: Legal principles

All legal principles in the MCA and the PPPR Act are underpinned by the ethical notion of autonomy to a lesser or greater degree, even though the value of autonomy in some situations is contested. The presumption of capacity,²⁷⁹ maximising a person’s capacity, and maintaining their freedom to make unwise decisions (if capable or “capax”),²⁸⁰ reflect the legal “right” to non-interference and to make decisions for one’s self.
The “unwise decisions” principle asserts that people are entitled to make imprudent decisions so long as they have the capacity to do so.²⁸¹ Thus, a person cannot be deemed to lack capacity just because health professionals, or even the court, disagree with their decisions. But making unwise choices may be sufficient to raise doubts as to the person’s capacity, for example, if this is out of character.²⁸² It is an assessment of a person’s decision-making ability and not the substance of the decision they make, that is relevant to the court exercising jurisdiction. Despite this “imprudence limitation”, under the PPPR Act the court may still consider that the appointment of a welfare guardian is the only way to achieve “appropriate” decisions, one of the criteria for appointing a welfare guardian.²⁸³
Both English and New Zealand statutes have principles akin to the notion of supported decision-making but there are few mechanisms to prioritise or enforce them. In the MCA, a person is “not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”²⁸⁴ The accompanying Code of Practice under the MCA provides guidance to professionals and decision-makers on how to support people to understand relevant information during assessment of their capacity and to enhance their capabilities for decision-making.²⁸⁵

²⁷⁹ The PPPR Act affirms the common law presumption of competence. The presumption is rebuttable and the legal burden of establishing lack of competence falls on the person alleging it. The presumption of competence appears in s 5 Part 1, Personal Rights, s 24, Part 5 Property Rights and s 93B Enduring Powers of Attorney, the Protection of Personal and Property Rights Act 1988. Under the HDC Code the presumption of competence is recognised in Right 7(2).

²⁸⁰ “Capax/incapax” is Latin for capable/incapable, latin-dictionary.net.

²⁸¹ Mental Capacity Act 2005, s 1(5); Protection of Personal and Property Rights Act 1988, s 6(3).

²⁸² P Letts (ed), Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyers (3rd ed, The British Medical Association and the Law Society, 2010) at 27.

²⁸³ Protection of Personal and Property Rights Act 1988, s 12(2).

²⁸⁴ Mental Capacity Act 2005, s 1(3).

²⁸⁵ Office of the Public Guardian Mental Capacity Act Code of Practice (TSO, London, 2013) at 29.

In the PPPR Act, one of the primary objectives is to maximise a person’s capacity to the greatest extent possible. This is sometimes referred to as the “empowerment principle”. This description overstates the weight attached to it in practice, as it tends to be overshadowed by the other primary objective of making the least restrictive intervention.²⁸⁶ Both these principles generally come into play only after a person has been found to lack capacity and an intervention is considered necessary. For example, only after a welfare guardian has been appointed are they placed under a duty to consult the person subject to the order and to maximise their participation in decisions.²⁸⁷
The weakness of this legal framework is that there is no positive obligation to support the person to exercise their capacity at the beginning of the decision-making process; or, put another way, there is no presumption of supported decision-making. Furthermore, if a person lacks capacity and intervention is considered necessary, the framework does not emphasise that their will and preferences are still to be taken into account when decisions are made by others.

²⁸⁶ The objective of maximising a person’s participation to the greatest extent possible is rarely referred to in Family Court judgments.

²⁸⁷ Protection of Personal and Property Rights Act 1988, s 12.