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

8B: MAJOR GAPS IN CURRENT NEW ZEALAND LAW

The second category of reform concerns major gaps in New Zealand legislation where English law provides models from which New Zealand could learn and adapt into New Zealand law. From a New Zealand perspective, the most significant development in English law has been the realisation that the doctrine of necessity under the common law – the principle that necessary treatment and care can be provided to a person in their best interests – which is expressed in New Zealand through Right 7(4) of the HDC Code, provides inadequate legal safeguards for people who lack capacity and who are unable to consent or object to their healthcare, their living arrangements, or their participation in research. This report’s recommendations for New Zealand law therefore include:

Liberty safeguards: Liberty and freedom of movement are values of fundamental importance in our society, yet currently in New Zealand, for some people who lack capacity, there is no legal process governing their loss of liberty. In a broad range of settings, people who lack capacity are detained, and under the continuous supervision and control of those caring for them, and not free to leave. Yet, in many cases – such as where they are not under the authority of the mental health legislation (MH(CAT) Act) or an order made under the PPPR Act – no process is automatically triggered to review the lawfulness or appropriateness of their detention. This is the so-called “Bournewood gap” that has led to major developments in England under the MCA and in the European Court of Human Rights, including the establishment of the “Deprivation of Liberty Safeguards” (DoLS) to fill the gap. In New Zealand, courts (and the Mental Health Review Tribunal) review the position of people detained in psychiatric facilities under the MH(CAT) Act, and some orders for secure residential placement are made under the PPPR Act by the Family Court. In most cases, however, the PPPR Act does not provide an ongoing process for reviewing the detention of people who lack capacity. It is not designed to perform continuing review functions of this kind. Revised legislation should therefore provide what might be called “liberty safeguards”, including: a process to identify, authorise and monitor deprivations of liberty; procedural rules regulating such deprivations of liberty; a code of practice to guide providers and facilities when the safeguards apply; a clear and speedy authorisation process; and the powers and procedures of an independent monitoring body.

Research on people who lack capacity: Right 7(4) of the HDC Code, based on the common law doctrine of necessity, is also an inadequate legal basis for allowing participation in research by adults incapable of giving informed consent. Here too the MCA provides a useful legal model upon which New Zealand could base its own statutory protections where none currently exist. Sections 30 – 34 of the MCA provide lawful authority to carry out research on participants who lack capacity, where approved by a research ethics committee, as long as various safeguards are complied with. These safeguards relate both to the characteristics of the research and the participation of individuals in it. Among the numerous protections, the MCA provides that the research must have the potential to benefit the patient without imposing a burden that is disproportionate to that benefit, or be of wider benefit for persons affected by the same or a similar condition, and must impose no more than negligible risk to the patient.