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

8D: FURTHER FEATURES OF THE MENTAL CAPACITY ACT

In addition, there are a number of areas that have been touched on in this report but require closer scrutiny in a future review of the law.

Register for enduring powers of attorney (EPOAs): There is no transparent mechanism in New Zealand to ensure oversight of attorneys appointed under an enduring power of attorney (EPOA). The 2007 amendments, which purported to address ongoing problems of misuses and abuse of EPOAs in New Zealand, have failed to provide a solution. A key factor promoting the success of the English model is the fact that there is a national register of enduring powers of attorney (referred to as LPAs), supported by a public agency, with the objective of ensuring more effective supervision of attorneys acting under EPOAs. It is now recognised in the UK that measures under existing mental capacity legislation, such as EPOAs and advance directives, should be utilised for their potential as instruments of support for the exercise of legal agency as contemplated by art 12(3), with accompanying safeguards under art 12(4), of the CRPD.⁹²⁰ The establishment of a register to facilitate these measures, and associated safeguards that would accompany it, is an essential reform for New Zealand. It could be cost-effective, self-funded, and efficient through the use of an electronic register.

Advance directives: As with EPOAs, advance directives are an important expression of a person’s prior autonomy – as they are an advance direction made when a person is still capable, to refuse specified medical treatment for a time in the future when they may lack capacity to consent to or refuse treatment. In New Zealand, there is no mandated form for an advance directive. Right 7(5) of the HDC Code provides: “Every consumer may use an advance directive in accordance with the common law,” but it does not tell us what the common law rules are. Under the PPPR Act, there is a confused relationship between EPOAs and advance directives. Where an attorney has been appointed under the PPPR Act, they must consult the person for whom they act. However, the paramount consideration for the attorney in these circumstances is to act in the person’s best interests, and the attorney might, on occasion, consider this requires them to act contrary to the person’s own prior instructions contained in an advance directive.⁹²¹ New Zealand law gives no clear indication as to whose views should prevail. The MCA, in contrast, has a clearly mandated framework for creating valid and applicable advance directives which state the circumstances in which a specified treatment either should, or should not, be carried out.⁹²² This clarifies the circumstances in which the advance directive is to prevail. These developments could encourage people to make advance directives for when they lose capacity for decision- making for a range of decisions. All advance directives and EPOAs could be included on one electronic register, so they can be readily known.⁹²³

Oversight and monitoring by a public body: In England, the MCA established the Office of the Public Guardian (OPG). This is an executive agency of the Ministry of Justice. Its aim is to help make sure that adults who lack capacity to make decisions for themselves are protected from abuse. The functions of the Public Guardian fall into three categories: establishing and maintaining a register of LPAs (EPOAs); supervising deputies (welfare guardians or property managers) appointed by the court; and investigations – referred to as “safeguarding referrals”. The Public Guardian’s office can also provide a professional deputy (the equivalent of a welfare guardian) who can be appointed by the Court under the MCA. This kind of arrangement would go some way to assist with the shortage of independent welfare guardians available in New Zealand. Such a public body could also provide oversight of the legislation and its proposed Code of Practice.

Independent advocates: New Zealand currently has no provision for the appointment of an independent advocate for adults with impaired capacity when serious medical treatment decisions need to be made or when they are deprived of their liberty. While there are health and disability advocates, they are largely concerned with complaints under the HDC Code. In England, the MCA has created an independent mental capacity advocate service (IMCA). This service is designed to help vulnerable people who lack the capacity to make such important decisions and who have no family or friends that it would be appropriate to consult. Recent law reform reports in the UK have emphasised that compliance with the CRPD requires that statutory advocacy services should be funded at a level that ensures genuine and effective access to independent advocates by persons with disabilities in any matter that impact upon their ability to exercise legal capacity.⁹²⁴

It is said that the measure of a society is how well the most vulnerable are treated.925 The PPPR Act is overdue for revision in line with contemporary thinking about the law for protecting and promoting the rights of people with impaired capacity for decision-making. The mental capacity law landscape in New Zealand is fragmented. A review of the law will require a coordinated approach across the social, health and legal policy sectors. It will create the opportunity for New Zealand to show a firm commitment to human rights principles in its construction of capacity as a legal concept, and the chance to develop the law from New Zealand’s own cultural perspective. Such reform is urgently needed. It is likely to get full support from those working within the health and disability sector who want to make positive changes that will benefit people with impaired capacity for decision-making.

⁹²⁰ Martin, Michalowski, Stavert and others, above n 919.

⁹²¹ Protection of Personal and Property Rights Act 1988, s 99A(2). There are limits on the powers of an attorney, (as with welfare guardians under s 18) including preventing the attorney from refusing consent for standard medical treatment or procedures intended to save that person’s life or prevent serious damage to that person’s health: Protection of Personal and Property Rights Act 1988, s 18(1)(c).

⁹²² Mental Capacity Act, ss 23-26.

⁹²³ The establishment of an electronic “health directive register” for EPOAs and advance directives could also include organ donations. See recent health policy consultation document about the need to increase organ donation in New Zealand. The proposal is that the Ministry of Health should establish a consistent mechanism whereby health professionals around New Zealand can obtain independent assurance that new practices and processes are ethically acceptable: Ministry of Health Increasing Rates of Deceased Organ Donation: Consultation document. Ministry of Health, Wellington, June 2016). It is important to note that the Human Tissue Act 2008 would not need to be amended to establish a register. The Act already has enabling provisions to establish regulations for a national organ and tissue donor “opt-on” register: Human Tissue Act, s 78. See A Douglass, “The new Human Tissue Act” (2008) NZMJ 377.

⁹²⁴ Martin, Michalowski, Stavert and others, above n 919 at 79; Law Commission interim statement (2016) above n 224.

⁹²⁵ Mahatma Ghandi, "A nation's greatness is measured by how it treats its weakest members”; also: Pearl S Buck civil rights/Nobel prize author of “The Good Earth”; James Earl "Jimmy" Carter Jr, former US President; and Pope John Paul II – among others.