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

8A: PROVISIONS OF THE MCA THAT COULD BE INSERTED INTO THE PPPR ACT

The PPPR Act is in need of review and the HDC Code is silent on the definition of the capacity or “competence” that a person requires to make an informed healthcare decisions. The recommendations below aim to inject more clarity into the key concepts governing decision- making for those with impaired capacity, notably, into the concepts of supported decision- making; capacity itself; and the notion of best interests as a standard governing decision- making for others. These recommendations concern:

Supported decision-making – a legal principle, taking into account tikanga Māori. The CRPD provides an opportunity to enhance and improve New Zealand’s adult guardianship law by giving priority to supported decision-making as a legal principle, including incorporation of tikanga Māori. There is a need for clear statutory guidance about who bears the responsibility, and when, to provide support to people whose decision-making ability is impaired, to enable them to make their own decisions whenever possible.

Defining capacity – a single test. As capacity or incapacity is the “brightline” for deciding whether the law permits intervention in people’s lives, it is essential that there is a clear test for it. There are currently several tests for incapacity in the PPPR Act and no definition of incapacity in the HDC Code for the purposes of determining whether a person can give informed consent or refusal to healthcare. Section 3 of the MCA provides a single legal test, whereby a person lacks capacity if they are unable to make a decision due to an inability to: understand information relevant to the decision, retain that information, use or weigh the information, or communicate the decision. This test is recommended for adoption in New Zealand.

Best interests – a standard for decision-making. The “best interests” standard recognises that where supported decision-making options have been exhausted, decisions by others need to be made. It can provide a transparent basis for decision- making when a person is unable to fully exercise their legal capacity. It is an essential complement to a supported decision-making framework: capacity is not an off-switch to a person’s rights and freedoms. In New Zealand the phrase “best interests” is found in both the PPPR Act and in Right 7(4) of the HDC Code, but it cannot be regarded as a specified legal standard for decision-making of the kind codified in the MCA. Section 4 of the MCA provides a checklist setting out a series of matters that must be considered when best interests decisions are made on behalf of a person by a substitute decision-maker. These include: the person with impaired capacity should participate as much as possible in the process of determining their best interests; their present and past wishes and feelings (or will and preferences) should be recognised; and so should the beliefs and values that would likely have influenced their decisions if they had capacity.