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

8C: IMPLEMENTATION OF THE LAW IN PRACTICE

The MCA Code of Practice has been pivotal in making English law accessible. New Zealand should establish a Code of Practice concurrently with reform of the legislation. New Zealand is too small a country to have everyone “reinventing the wheel” by forming their own standards for best practice; greater-cross sectoral leadership is needed. The English experience shows it is vital that the professionals, as well as informal carers, know what the law is and how to implement it.

Code of Practice: Revised legislation should provide for a Code of Practice to be developed by a government agency responsible for the legislation. The enabling provisions should be based on those in the MCA. The Code should be developed after consultation with the health and disability sector. It should recognise the legal interface with the rights under the HDC Code and give guidance on how supported decision- making can operate in keeping with tikanga Māori.

A Toolkit for Assessing Capacity: The toolkit included in Appendix D is a practical legal and clinical guide to assist health practitioners in carrying out capacity assessments. It is a first step towards providing a consistent and systematic approach to assessing capacity within the New Zealand healthcare setting.