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 5: Best Interests – a Standard for Decision-making

Chapter 5 is in two sections:

The absence of a “best interests” standard for decision-making in the PPPR Act and in the HDC Code.
B. The evolution of the common law and codification of the best interests standard for decision-making
under s 4 of the Mental Capacity Act (MCA).

Introduction

The MCA has a statutory “best interests” standard. It applies where a person takes actions or decisions on behalf of another person who lacks capacity and is “unable to make a decision”, as defined in sections 2 and 3 of the MCA.⁶³³ A “checklist” in s 4 provides a process for assessing the person’s best interests (the best interests assessment) and sets out matters that the substitute decision-maker (the decision-maker) must consider. These matters include the aim that the person with impaired capacity should participate in determining their best interests, recognising the person’s present and past wishes and feelings, and acknowledging the beliefs and values that would have likely influenced their decision if they had capacity.
Under the MCA, the concept of best interests therefore provides a framework for decision- making on behalf of people with impaired capacity. Previously, the law focused mainly on the autonomy of people with capacity, such as their right to refuse medical treatment, rather than on decision-making for people who could not make autonomous decisions.⁶³⁴ As discussed in Chapter 2,⁶³⁵ this best interests framework is compatible with supported decision-making because it requires participation by the person with impaired capacity where possible, and it is an appropriate approach to decision-making for people who cannot make decisions for themselves. This approach also recognises that, even if a person is unable to make a legally binding decision with support, their likely will and preferences remain central to the decision- making process: capacity is not an off-switch to a person’s rights and freedoms.⁶³⁶
Best interests guides substitute decision-making and is often contrasted to the notion of substituted judgment. While the former has traditionally been viewed as an objective standard, the latter is more subjective because it instructs the decision-maker to make the decision that the person would have wanted if they had capacity to do so. It has been preferred by courts in the United States.⁶³⁷ It is considered to uphold the person’s autonomy to a greater degree. Both approaches have their challenges.⁶³⁸ The statutory standard in the MCA can be regarded as a hybrid approach, as a subjective element was introduced that was previously absent from the common law’s approach to substitute decision-making.
New Zealand’s legal framework provides no such comprehensive standard for decision- making where a person has impaired capacity. The PPPR Act refers to decisions being made in a person’s “welfare and best interests”, and, under Right 7(4) of the HDC Code, decisions can be made in a person’s “best interests.” However, best interests is not a primary principle of either piece of legislation and there is no guidance on how these best interests decisions are to be made in light of a person’s “will, preferences and rights” under the United Nations Conventions on the Rights of Persons with Disabilities (CRPD).⁶³⁹
How best interests is assessed under the MCA, and the case law around it, is considered below. Recommendations are then made for revised legislation to provide a best interests standard in New Zealand based on s 4 of the MCA.

⁶³³ See Appendix C and Mental Capacity Act, s 4. Section 1(5) states that “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests”.

⁶³⁴ Buchanan and Brock, above n 34 at 3.

⁶³⁵ See Chapter 2 Supported decision-making.

⁶³⁶ Wye Valley NHS Trust v Mr B, above n 171.

⁶³⁷ Donnelly, above n 254 at 176.

⁶³⁸ Donnelly, above n 254 at 177.

⁶³⁹ Article 12(4) of the CRPD uses the formulation ‘rights, will and preferences’.