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 8: Conclusion – a Checklist for Reform

Chapter 8 is in four sections:

A summary of the useful provisions in the Mental Capacity Act that could be adopted with some modifications into revised New Zealand legislation.
Major gaps in current New Zealand law that need to be filled.
A Code of Practice to assist with implementation of the law.
Further features of the Mental Capacity Act in the checklist for reform.

Conclusion

The PPPR Act has provided New Zealand with a progressive model for adult guardianship law underpinned by sound human rights principles. The Act reflects the need to strike a balance between promoting autonomy and providing necessary intervention to safeguard the interests of people with impaired capacity in a range of circumstances. However, the legislation’s weakness lies in its unnecessary complexity and lack of clarity about two essential concepts. These are firstly, capacity – the bright legal line determining whether intervention is permitted in people’s lives; and secondly, best interests – the standard upon which others should make decisions when a person is unable to make decisions for themselves, taking into account the will and preferences of the person concerned.
Importantly, the PPPR Act lacks an adequate mechanism for oversight of its implementation in keeping with the principles underpinning it. There has never been a public body that champions it and educates the public, and professionals working within the health and disability sector, about it. For the legal framework to have more integrity, a clear and precise law is needed that is accessible to all. Otherwise it runs the risk of being largely ignored, or being considered ineffective in safeguarding and promoting the rights of people with impaired capacity.
This report has identified useful provisions of the Mental Capacity Act 2005 (for England and Wales) that could be adopted, with some changes, into revised New Zealand legislation. The MCA has codified decades of judge-made law, and English case law is relied upon for interpreting our law when it is similar to the MCA. The MCA provides for the specialised jurisdiction of the Court of Protection, which develops corresponding expertise and case law. It also provides for a Code of Practice. This has led to greater transparency (of both the standards and the process) concerning decision-making for people who lack capacity, under a single piece of legislation that has codified much of the common law. English law under the MCA has also embraced the growing role of human rights instruments – such as the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights for Persons with Disabilities (CRPD) – in developing its principles. New Zealand should draw on this English experience, using these positive features of the MCA in the revision of our law.
The CRPD offers new ways of thinking about capacity, particularly in its emphasis on supported decision-making and recognition of universal legal capacity. New Zealand lags behind comparable jurisdictions in its commitment to implement the CRPD. Much of the international discussion has been on the positive rights in the CRPD, plus access to decision- making support under Article 12(3) for people with impaired capacity for decision-making. There has been less discussion about how to provide the corresponding safeguards concerned, not only in respect for the “rights, will and preferences” of the person, but also safeguards from undue influence and dealing with conflicts of interest, under Article 12(4).⁹¹⁹ A finding of this report is that supported decision-making and substitute decision-making – as currently understood in adult guardianship law – are not mutually exclusive concepts. For a workable law, there is a need for a more integrated approach for these two models of decision- making for them to co-exist.
Implementing the concept of supported decision-making as understood in the CRPD presents challenges as well as opportunities for policy- and law-makers. New Zealand has a history of adding an innovative cultural dimension to its law and policy. We should develop a law that fits our population size, and our social and cultural expectations. There needs to be flexibility in the legal framework to reflect the fact that a wide range of people with impaired capacity and circumstances may be affected by it: people with learning disabilities, older adults with dementia, those with acquired brain injuries, and those whose capacity is affected by mental illness.
The law’s approach to autonomy is often regarded as too individualistic. There is now greater recognition of the importance of relationships, as our autonomy is strongly influenced by our social and cultural context. The positive obligation to recognise support relationships in the CRPD has synergies with tikanga Māori, where values of individual autonomy and collective decision-making work alongside each other.
This report has put forward a number of recommendations for reform of the PPPR Act. These recommendations fall into four categories. Firstly, certain provisions of the MCA are identified that could easily be inserted (with some modifications) into the PPPR Act to give greater integrity to its legal framework and to assist with the interpretation of the HDC Code. Secondly, there are some major gaps identified in New Zealand law that need to be filled. Thirdly, the MCA Code of Practice is commended as an excellent model for implementing mental capacity law from which New Zealand could learn by introducing a similar Code with a statutory imprimatur. Fourthly, other useful aspects of the MCA are identified which this report has not covered in detail due to the scope of this research project but should form part of a wider review of the law.

⁹¹⁹A recent report released by the Essex Autonomy Project on legal reform across the UK on the rights of persons with disabilities provides informed discussion on legal reform of mental capacity legislation and the necessary safeguards contemplated by art 12(4) of the CRPD across the three jurisdictions in the UK: W Martin, S Michalowski, J Stavert and others The Essex Autonomy Project Three Jurisdictions Report: Towards Compliance with the CRPD Art.12 in Capacity Incapacity Legislation Across the UK (Essex Autonomy Project, University of Essex, 6 June 2016).