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

Chapter 2 – Supported Decision-making

Chapter 2 is in five sections:

The human rights concepts in the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
The common legal principles in both the Mental Capacity Act (England and Wales) and the Protection of Personal and Property Rights Act 1988.
The notion of autonomy as understood in ethics and in the law.
New Zealand’s cultural dimension and tikanga Māori.
Supported decision-making in practice and in English case law.Setting the context and understanding the legal concept of capacity.

Introduction

This chapter considers the impact of human rights instruments and the paradigm shift promoted in the United Nations Convention on the Rights of Persons with Disabilities (CRPD),²²³ from substituted decision-making to supported decision-making.²²⁴ It considers the role of the law and argues that substituted and supported decision-making regimes are not mutually exclusive: there is a place for both of them in law and they can coexist.
Supported decision-making refers to a process of providing support to people whose decision- making ability is impaired, to enable them to make their own decisions whenever possible.²²⁵ Originally developed in Canada as an alternative conceptual framework for decision-making, the idea of supported decision-making challenged the belief that personal autonomy could only be expressed independently.²²⁶ It was seen as a way to overcome barriers for people with intellectual disabilities. The concept now has far greater reach, applying to people with a wide range of impairments that affect decision-making. While the concept has gained international traction, it poses significant challenges for the development of law and policy. This is due in part to multiple and sometimes confused understandings of what legal capacity and supported decision-making actually entail and how to translate those concepts into workable laws. Therefore, it is essential to have a clear understanding of these human rights concepts when undertaking a review of the law and to place them in a social and cultural context.
Contemporary thinking in ethics reflects a shift in focus from individual notions of autonomy to accounts of autonomy that affirm the importance of relationships in exercising legal capacity. The positive obligation to recognise support relationships in the CRPD also has synergies with tikanga Māori, where the values of individual autonomy and collective decision- making processes can work alongside each other. This chapter makes connections between supported decision-making as understood in human rights law, legal principles, ethics and Aotearoa/New Zealand’s own cultural dimension.

²²³ Convention on the Rights of Persons with Disabilities (opened for signature 30 March 2007, entered into force 3 May 2008), (CRPD).

²²⁴As discussed below, neither “substituted decision-making” nor “supported decision-making” are defined in the CRPD. A “substitute decision-maker” generally refers to a person or body who can make decisions for someone else who lacks capacity in law, such as an attorney or welfare guardian under adult guardianship law, a healthcare provider under Right 7(4) of the HDC Code, or the Court itself under statute or by way of the inherent jurisdiction.

²²⁵Law Commission, T Spencer-Lane “Mental Capacity and Deprivation of Liberty” consultation document http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty at 154.

²²⁶M Browning, C Bigby and J Douglas “Supported Decision-making: Understanding How its Conceptual Link to Legal Capacity is Influencing the Development of Practice” (2014) 1 Res Pract Int Devel Disab 34. Since the 1990s supported decision-making has been incorporated in legislation in several Canadian Provinces. Bach and Kerzner, above n 33. A New Paradigm For Protecting Autonomy And The Right To Legal Capacity is a commissioned report that has been influential in interpreting approaches to legal capacity.