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 4: Defining Capacity

Chapter 4 is in three sections:

An overview of important concepts of capacity.
An analysis of the four legal tests of capacity in the Protection of Personal and Property Rights Act 1988 (PPPR Act).
The test for capacity under ss 2 and 3 of the Mental Capacity Act (England and Wales) 2005 (MCA).

Capacity and best interests

“Capacity” and “best interests” are two fundamental concepts that underlie the English legislation. As capacity (or incapacity) is the “brightline” for determining whether the law permits intervention in people’s lives, it is essential that there is a clear test.⁵³⁵ If a person is unable to make a decision as defined in law, the best interests standard provides a legal and an ethical imperative for the person’s will and preferences to remain central to the decision- making that affects them.⁵³⁶ These clearly defined concepts in the MCA give integrity to the legal framework and make the law more accessible to everyone that uses it.
The principles and philosophy of the PPPR Act and MCA are very similar, as is the functional approach to defining capacity, based on an assessment of a person’s decision-making ability, not the decision made. Any definition of capacity must be considered in light of the key concepts that are used to interpret how the definition is applied.⁵³⁷
In this chapter, the problems and complexity of the multiple tests for capacity found in the PPPR Act and the lack of a definition of competence within the HDC Code are identified. The functional test in s 3 of the MCA is considered in light of current English case law.
The essence of the recommendations in Chapters 4 and 5 is that revised legislation should provide a single and unified legal test for capacity, as well as a transparent standard for decision-making, referred to as the “best interests” standard.

⁵³⁵ An introduction to the legal concept of capacity is set out in Chapter 1A.

⁵³⁶ Chapter 2 of this report has argued that the best interests standard as understood in s 4 of the MCA is an essential complement to a supported decision-making framework.

⁵³⁷ The common legal principles of the PPPR Act, the HDC Code and the MCA are considered in Chapter 2B.