1B: OVERVIEW OF MENTAL CAPACITY LAW IN NEW ZEALAND

The Protection of Personal and Property Rights Act 1988 (PPPR Act) – background

13. In New Zealand, the PPPR Act is the guardianship law for adults who may permanently or temporarily lack capacity. The PPPR Act is the main legislation that applies to people who lack capacity and is a vitally important piece of legislation. It has played a key role over the last 28 years by recognising the vulnerability of adults with impaired capacity and the concern of the State to “protect and promote” the rights of those who cannot manage their own affairs.

14. The passing of the PPPR Act in 1988 responded to the needs of the community at a time when there was no guardianship law in place for adults who lacked capacity. The PPPR Act mainly grew out of the need to protect adults with intellectual disabilities in the community during deinstitutionalisation of psychiatric institutions in the 1980s, and was intended to remove them from under the control of “the murky stream of mental health law”.³⁸ Until the introduction of this Act in 1988, it was not possible to provide guardianship of people over 20 and, as a result, people over that age were often committed under the Mental Health Act 1969 (MHA 1969).
    
    
15. The PPPR Act created a new and expanded jurisdiction for the Family Court and in doing so relieved the High Court of a significant part of its first instance jurisdiction for people who lack capacity. The legislation adopted the social philosophy of the United Nations Declaration on the Rights of Mentally Retarded Persons 1971. It reformed aspects of the law governing both personal and property rights, and repealed the prior legislation dealing with administration of the property of people who lacked capacity: that is, the Aged and Infirm Persons Protection Act 1912 and property-related aspects of the MHA 1969.³⁹
    
    
16. Early decisions of the Family Court under the PPPR Act, notably decisions by the late Judge Inglis QC, were largely concerned with testing the waters of the new jurisdiction, including the tests for incapacity and the power to authorise treatment decisions,⁴⁰ as well as the basis upon which people with intellectual disabilities could live in the community with an appointed substitute decision-maker.⁴¹ With the changes in the social environment and burgeoning older population, many of the more recent cases before the Family Court are concerned with older adults who lack capacity.⁴²
    
    
17. As a matter of social policy, a consistent theme emerges: the most significant decision for people who lack capacity, young or old, is where they are to live. All other decisions, healthcare, welfare, financial and property are important, but tend to be secondary to their living arrangements – whether supported in the community or in more institutionalised models of care and support.

³⁸ AC Hughes-Johnson “The Protection of Personal and Property Rights Act 1988: An analysis, commentary and answers to likely questions”. (A seminar by the New Zealand Law Society, October 1988) at 11.

³⁹ Australian legislation, the Victorian Adult Guardianship Act 1987, provided the adult guardianship law model for the Protection of Personal and Property Rights Act 1988.

⁴⁰ In Re S (Shock Treatment) [1992] NZFLR 208 Judge Twaddle declined to order shock treatment therapy for a person with intellectual disability and instead ordered that they live in a community trust home and receive supported rehabilitative therapy.

⁴¹ In Re E [1992] 9 FRNZ 393, the Court declined jurisdiction to make a residential care order for a 28- year-old with severe physical disability, as she did not ”wholly” lack the capacity to communicate, and she clearly had the capacity to understand the nature of her decision. In Re “Tony” [1990] 5 NZFLR 609 Judge Inglis declined jurisdiction to make welfare guardian and property orders in respect of a man with schizophrenia who lived in a home described as a “protected environment”, where it was only a hypothetical possibility he might leave. Re A and Others [1993] 10 FRNZ 537, Judge Inglis made an order allowing for the joint appointment of the care centre and a parent for each of five long-term institutionalised individuals with intellectual disability.

⁴² See for example, Wilson v Wilson [2015] NZFLR 104, where a personal order was necessary to mitigate perceived undue influence for an elderly man with partial incapacity. In Hutt Valley District Health Board v MJP [2012] NZFLR 458 the Court held that it had jurisdiction to order an elderly woman with dementia to reside in a care facility despite her vehement objections.

The PPPR Act – an overview

18. The PPPR Act and its Regulations provide the mechanisms for the making and use of an enduring power of attorney (EPOA), which a person can execute in advance to authorise another person to make decisions about their care, welfare or property if they later become mentally incapable of making those decisions.⁴³ It authorises the Family Court to appoint substitute decision-makers, known as welfare guardians and property managers, and make personal orders that can be tailored for specific interventions, such as treatment decisions, therapeutic services or living arrangements.⁴⁴
    
    
19. The primary objectives of the PPPR Act are to make the least restrictive intervention and to maximise a person’s decision-making capacity where possible.⁴⁵ Another principle that underpins the Act is the presumption of competence: a person must be assumed to have capacity unless proved otherwise.⁴⁶ A limitation on any intervention by the court is the principle that people are entitled to make imprudent or unwise decisions so long as they are considered to have the capacity to do so.⁴⁷ As such, the Act has good bones: it is intended to be enabling and supportive of people who lack capacity, not unnecessarily restricting or controlling of their lives. It aims to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or participate in decision- making, as far as they are able to do so.
    
    
20. The Family Court is assigned this protective jurisdiction but it is a creature of statute and its jurisdiction in matters involving mental capacity is limited in scope by the legislation. There is a right of appeal and the ability to transfer Family Court proceedings to the High Court in certain circumstances.⁴⁸
    
    
21. The High Court’s inherent parens patriae jurisdiction in relation to vulnerable adults operates as a safety net to provide a remedy beyond the scope of the statutory scheme.⁴⁹ This jurisdiction is rarely used but has some application, where, for example, there are limitations on the powers of an appointed welfare guardian,⁵⁰ or where disputes arise about end of life decision-making for fully incapacitated persons.⁵¹
    
    
22. The PPPR Act contemplates a two-stage procedure in which the Court must first determine whether there is jurisdiction and then determine the degree of intervention, if any, that is necessary.⁵² In KR v MR, Miller J held:⁵³
    
         The question of capacity to make the decision that is the subject of an application (under the Act) is
          a threshold question and must be considered in every case; because jurisdiction to make an order
          ... depends on it.
    
    
23. The Act provides no single test for incapacity, which makes it complex legislation to follow and apply.⁵⁴ In general terms, however, the Act says a person lacks capacity if they do not understand the nature or cannot foresee the consequences of decisions, or are unable to communicate them.⁵⁵ As the Family Court can only intervene where a person lacks capacity, this concept of capacity and how it is assessed and considered by the court is central to the workings of the Act.

⁴³ Changes to Part 9 of the PPPR Act are discussed below. An EPOA is a grant by a donor when they are mentally capable to another person (the donee) which allows that person to make welfare and/or property decisions when they become mentally incapable or lack capacity for decision-making.

⁴⁴ There are statutory limitations on substitute decision-makers’ powers; Protection of Personal and Property Rights Act 1988, ss 18 and 98.

⁴⁵ Protection of Personal and Property Rights Act 1988, ss 8(a) and 8(b).

⁴⁶ Protection of Personal and Property Rights Act 1988, s 5.

⁴⁷ Protection of Personal and Property Rights Act 1988, s 8(3).

⁴⁸ Protection of Personal and Property Rights Act 1988, s 83; Family Courts Act 1980 s 14.

⁴⁹ Carrington v Carrington (2014) NZHC 869 Katz J at [103]. The parens patriae jurisdiction is expressly contemplated by s 114 of the PPPR Act. Section 17 Judicature Act 1908 applies to “Persons and estates of mentally disordered persons and persons of unsound mind”. See also Dawson v Keesing [2004] 23 FRNZ 493.

⁵⁰ Protection of Personal and Property Rights Act 1988, s 18, Limitation on the powers of welfare guardians. In Re W [1994] 3 NZLR 600 the High Court held that it had inherent jurisdiction to declare W’s marriage void on the basis of absence of consent through lack of intellectual capacity.

⁵¹ The High Court’s jurisdiction is used where there is withdrawal of life support from incapacitated patients in coma or persistent vegetative state (PVS). The continued existence in New Zealand of the Court’s parens patriae jurisdiction in this context was accepted in Auckland Area Health Board v A-G [1993] 1 NZLR 235, and reaffirmed by the High Court in Re W [1994] 3 NZLR 600 and Re G [1997] 2 NZLR 201.

⁵² KR v MR [2004] 2 NZLR 847 at [72]. Also reported as X v Y (Mental Health: Sterilisation) [2004] 23 FRNZ 475.

⁵³ KR v MR, above n 52 at [25].

⁵⁴ Protection of Personal and Property Rights Act 1988, ss 12(5)(b), 18(3), 97A(2) and 98A(2). See Chapter 4 Defining Capacity.

⁵⁵ The factors relevant to deciding capacity are the ability to: communicate choice; understand the relevant information; manipulate the information and appreciate the situation and its consequences (KR v MR at [51]).

24. Although often assumed to be relevant, the further principle of the person’s “best interests” is neither a primary objective of the PPPR Act nor defined in it. Substitute decision-makers appointed by a court order or by an EPOA are charged with making decisions in the person’s “best interests and welfare”, but there is no clear direction for the court to do so. The legislative intent in this area was discussed in an early decision by a full Court which warned against adopting:⁵⁶

... a narrow, legalistic approach to the Act where the welfare and best interests of the person the subject of the application are part of a hidden rather than stated objective.

25. The absence of a best interests standard and lack of clarity as to its significance (a “hidden objective”) has led to a confused understanding of best interest’s role within the legislation and risks conflating matters of best interests with the legal tests for capacity.⁵⁷
    
    
26. The Act provides a number of safeguards for the person who is subject to the Act (referred to as the “subject person”), including ensuring their right to be heard and the appointment of a lawyer to represent them in court proceedings. ⁵⁸ Where there is a conflict between the views of the subject person and others’ views about their welfare and best interests, the lawyer is required to discuss the issues with them as far as possible, and attempt to resolve the conflict with that person, but also required to put before the court all relevant information from a “best interests point of view”.⁵⁹ The court can make an interim personal order under urgency without the person being served but can only do so after a lawyer for the subject person is appointed and is in a position to be heard.⁶⁰ People subject to personal orders (including the appointment of a welfare guardian) have the right of review of the order and/or decisions by the welfare guardian at any time during the currency of the order. Other than appointing the lawyer at the time the order is made, these safeguards are not often used.⁶¹
    
    
27. Enforcing court orders against third parties to protect the person with diminished capacity, who may be vulnerable to undue influence from others, is a vexed issue.⁶² There have been cases involving incapacitated persons where (unsuccessful) habeas corpus arguments have been considered, based on allegations that a person subject to care and welfare orders has been unlawfully deprived of their liberty by their appointed welfare guardian.⁶³ There are a number of decisions where the court has creatively used supplementary orders under s10(4) as a means of enforcing the main order but the extent to which this provision can be used as a method of enforcement is unclear and unsatisfactory.⁶⁴

⁵⁶ In the Matter of A [1996] 2 NZLR 354 at 356.

⁵⁷ See Chapter 5 Best Interests.

⁵⁸ Protection of Personal and Property Rights Act 1988, s 65. An application to the Court activates the appointment of a lawyer to represent the “subject person” under s 65 and to report to the Court, among other things, whether the medical evidence supports the Court having jurisdiction to intervene.

⁵⁹ Ministry of Justice “Guidelines for subject person appointed under PPPR Act, Principal Family Court Judge” (24 March 2011) at www.justice.govt.nz. Where there is a conflict between the wishes of the subject person and what might be considered in a person’s best interests the Court may appoint a lawyer to assist the Court under s 65A.

⁶⁰ Public Trust v MJD [2013] NZFC 2706.

⁶² Protection of Personal and Property Rights Act 1988, ss 86-89. The maximum term of personal orders is three and sometimes five years.

⁶² See for example, JMG (by her Litigation Guardian AMB) v CCS Disability Action Inc [2012] NZFLR 369, Miller J.

⁶³ E v E, Wellington HC, CIV-2009-485-2335, 20 November 2009. Simon France J. See also JDEB & ors v JAB & RHB and MAB [2013] NZFC 4234, Judge O’Dwyer, following an unsuccessful writ of habeas corpus in the High Court.

⁶⁴ Examples include: setting in place a procedure on notice to a landlord to make the subject person a party to a tenancy agreement so that support services could be provided to him, JMG v CCS Disability Action, above n 62; facilitating attendance at a hospital so that the mental health patient who lacked capacity to consent to treatment could receive cancer treatment (CD v JMT [2012] NZFC 10147), and transporting a person with severe alcohol dependence to a residential facility to avoid “absconding” Loli v MWY FAM-2009-004-001877, 13 Jan 2011 NZFC Auckland 2011.

28. The court has limited ability to take contempt action against third parties who unduly influence the subject person and interfere with court orders designed to meet their needs. In JMG (by her Litigation Guardian AMB) v CCS Disability Action Inc,⁶⁵ JMG and her mother interfered with the provision of disability services to JCE and a tenancy order was made in the Family Court to facilitate access to these services. The Family Court Judge expressed concern that JCE was being manipulated and controlled by his partner JMG and her mother, contrary to his rights under the CRPD.⁶⁶ A report from the court-appointed psychologist “compellingly” confirmed JCE’s need for supported decision-making from both the disability service and his parents.⁶⁷ In an unsuccessful appeal to the High Court, Ronald Young J warned JMG’s mother, DH, of the risk of contempt action and that:⁶⁸

    ... only for so long can a Court tolerate the flouting of its orders. Given that JMG admittedly is not able to play a full part in the litigation, and so is unlikely to be sanctioned for breach, attention must turn for enforcement purposes to those who act on her behalf and by their own admission possess the ability to influence her decisions. I find that DH is in that position.

The PPPR Act – law reform

29. The PPPR Act may be regarded as progressive legislation and in some respects ahead of its time. It was enacted in 1988, the year of the report of the Cartwright Inquiry, and pre-dates significant developments of the law relating to patients’ rights following the Cartwright Inquiry and leading passage of the Health and Disability Commissioner Act 1994 and the HDC Code. Despite these developments, there has been surprisingly little attention or review of the operation of the PPPR Act or the principles that underpin it.
    
    
30. In 2001, the Law Commission published a report following a discussion paper entitled, Misuse of Enduring Powers of Attorney.⁶⁹ The discussion paper was triggered by concerns expressed by Age Concern about the lack of protection and adequate safeguards for those whom the statute was designed to assist, and by increasing awareness of elder abuse in the community. The subsequent report of the Law Commission identified problems with the way in which the initial grants of enduring powers of attorney (EPOA) were made, such as the donor feeling under duress, failure to explain the implications of the powers given to the attorney, or a donor lacking the capacity to understand what they were signing.
    
    
31. Part 9 of the PPPR Act was subsequently amended by the PPPR Amendment Act 2007. Prior to this amendment, the issue of a donor’s capacity was not addressed in the legislation; one of the most significant changes was the introduction of a presumption of donor competence.⁷⁰

⁶⁵ Above n 62. Above n 62 at [8].

⁶⁶ Counsel to assist was appointed by the High Court to consider its parens patriae jurisdiction with regard to JMG who lacked capacity to litigate, but was not subject to any orders under the PPPR Act and who was considered vulnerable.

⁶⁷ JMG (by her Litigation Guardian AMB) v CCS Disability Action Inc (stay application) Wellington HC, (27 May 2011) Ronald Young J at [20].

⁶⁸ Above n 67 at [52].

⁶⁹ Law Commission Misuse of Enduring Powers of Attorney (NZLCR, Wellington, 2001).

⁷⁰ Protection of Personal and Property Rights Act 1988, s 93B. See also B Atkin “Schizophrenia and Protection Orders” (1990) NZLJ 204 and discussion on the Part 9 Amendments in S Bell Protection of Personal and Property Rights Act & Analysis (Thomson Reuters, Auckland, 2012) at 36.

32. In the response to a 2013 request for “feedback” on the 2007 amendments from the Office for Senior Citizens of the Ministry of Social Development, the New Zealand Law Society reported that these changes have been problematic and difficult to implement. But the Law Society recommended that the changes to EPOAs made in 2007 should be considered in the context of a review of the PPPR Act as a whole.⁷¹
    
    
33. The Law Society advised that the increase in cost to meet the new legal requirements has had the effect of dissuading some clients from appointing attorneys; the new legal threshold for determining whether a person lacks capacity for the purpose of activating an EPOA is different from the threshold for the appointment of a welfare guardian by the court, adding to the complexity of using the Act; the different processes create confusion for people using them and complexities for health professionals making capacity assessments; and there is no independent oversight of the medical certification process required to certify a donor’s mental incapacity when the power is activated, such as an appointed lawyer to represent a person where court orders are proposed.⁷²
    
    
34. The Law Society also highlighted the lack of guidance for health practitioners concerning EPOAs. A similar gap exists regarding court proceedings under the Act, particularly about what the courts require of medical, psychiatric and psychological reports from clinicians and healthcare providers, to ensure there are consistent procedures for capacity assessment and a common approach to the essential question of whether the court has jurisdiction.
    
    
35. In June 2014, the Minister for Senior Citizens reported to Parliament on a review of the effectiveness of the 2007 amendments.⁷³ That report recommended an information campaign to improve legal and health professionals’ knowledge about their responsibilities and sources of information and support, but rejected the Law Society’s submission for a national register of EPOAs.
    
    
36. In 2015, an amendment to the PPPR Act was introduced to make minor and technical changes to the EPOA provisions and the witnessing requirements.⁷⁴ The 2015 amendments reflect the ongoing concern expressed by the New Zealand Law Society that the witnessing requirements in the 2007 amendments more than doubled the legal costs of making EPOAs and resulted in fewer EPOAs being made.⁷⁵ These changes will provide neither system-wide mechanisms to protect those vulnerable to abuse through incapacity, nor take account of New Zealand’s human rights obligations under international treaties.⁷⁶

⁷¹ Letter from Chris Moore (President, New Zealand Law Society) to Claire Kibblewhite (Ministry of Social Development Office for Senior Citizens) regarding the 2007 Amendments to Enduring Powers of Attorney Provisions (5 July 2013) https://www.lawsociety.org.nz/__data/assets/pdf_file/0011/69194/l- MSD-EPAs-5-7-13.pdf.

⁷² Ibid.

⁷³ The report was required by s 108AAB of the PPPR Act 1988. Report of the Minister for Senior Citizens on the Review of the Amendments to the Protection of Personal and Property Rights Act 1988 made by the Protection of Personal and Property Rights Amendment Act 2007, Ministry of Social Development, June 2014.

⁷⁴ Statutes Amendment Bill 2015, Part 21, introduced into Parliament in November 2015.

⁷⁵ Submission by the New Zealand Law Society on the Statutes Amendment Bill: Part 21 (29/01/2016), http://www.lawsociety.org.nz/__data/assets/pdf_file/0008/98207/Statutes-Amendment-Bill,-Part-21-29- 1-16.pdf at [2.7]. The Law Society submitted that the effect of the 2007 changes to the PPPR Act was “an increasing number of people who, for reasons of cost, have not made their own decision about who should be their substituted decision-maker if they lose their mental capacity”.

⁷⁶ See Chapter 3 Supported Decision-making, and the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

Family Court statistics

37. There is no comprehensive data published on Family Court proceedings concerning the PPPR Act. The Ministry of Justice published a general review of the Family Court in 2009. This showed a generally upward trend in numbers of applications for welfare guardians and property management orders and a relatively stable number of applications for personal orders. In 2011 the Family Court Public Consultation Paper looked at the total number of PPPR applications between 2004 and 2010. While there was some fluctuation, on average there were approximately 2500 applications annually.⁷⁷ During the 2006−2007 period, 40 percent of cases involved people over the age of 60, showing the weighting of proceedings toward older people, as this group only represents 17 percent of the general population.⁷⁸

38. Appendix A is a review of reported Family Court cases under the PPPR Act from 1988, and unreported cases from 2010 to 2015, where the decision expressly refers to the subject person’s capacity in ascertaining whether the court had jurisdiction (that is, that the person lacks capacity and there is a basis for the court to intervene).⁷⁹ The review is not a comprehensive evaluation of the PPPR Act but a snapshot of how decisions on jurisdiction are made.⁸⁰ Nor do these judgments tell the full, or even partial, story behind the many applications before the court that may have been resolved – not by way of judicial hearing and formal decision – but either “on the papers”, by way of unreported interim decision, court minutes, or judicial or settlement conferences.⁸¹

39. There have been few cases where a person’s capacity (and the jurisdiction of the court) have been contested by way of a defended hearing and even fewer where the person has given sworn or oral evidence. When judges are concerned that there is insufficient evidence to determine jurisdiction, they sometimes order further medical reports, and the outcome of these cases is often not known. The review identified 41 cases (30% of the total) where the subject person participated in a defended hearing, and another two cases where the decision records that the judge talked to the person on an unsworn basis. Of these, there were 19 cases where the person gave evidence contesting incapacity.⁸² The requirement that the person subject to an application should be present, unless formally excused under s76, does not appear to be rigorously followed.

⁷⁷ Ministry of Justice Reviewing the Family Court: a public consultation paper (Ministry of Justice, Wellington, 2011) at 81.

⁷⁸ Ministry of Justice Family Court Statistics in New Zealand in 2006 and 2007 (Ministry of Justice, Wellington, 2009) at 57.

⁷⁹ Unreported Family Court judgments were accessed from the Ministry of Justice but many of these judgments are not on any electronic database. While the process for deciding which judgments will be published aims to become more transparent, there is no “hard data” that can be statistically validated. Furthermore, even where capacity may have been contested, the case may have been resolved through the court-appointed lawyer’s involvement or for reasons unknown.

⁸⁰ The review was limited by the small sample size and what information can be ascertained from the combined reported (41) and unreported (94) cases.

⁸¹ Even where capacity may have been contested, the case may have been resolved through the involvement of the court-appointed lawyer.

⁸² There are few reports of judges visiting the person in their care setting or on a hospital ward, an approach used for reviews and hearings under the MH(CAT) Act. It is common and appropriate for judges to engage in informal discussion with the subject person and to encourage them to participate, where possible.

Mental capacity law in New Zealand

Figure 1: Mental Capacity Law in New Zealand

40. In addition to the adult guardianship law under the PPPR Act, there is also common law (case law), and other legislation that is relevant to people who lack capacity. The common law provides legal tests of capacity in respect to a range of situations and transactions, including: capacity to make a will (testamentary capacity); capacity to make a gift; capacity to enter into a contract; capacity to vote; and capacity to consent in the context of the criminal law, and particularly of sexual offences. The legal system recognises capacity to litigate and the role of a litigation guardian to represent those who lack capacity to instruct a lawyer.⁸³

41. There is a wide range of legislation in New Zealand where a person’s capacity for decision- making has an important bearing on the operation of the law and people’s access to it. The Accident Compensation Act 2001, for example, provides cover for claimants who may have suffered a traumatic brain injury and who may be either incapable or in need of support to access and manage their entitlements to rehabilitation and compensation.⁸⁴ There is a clear gap in the law for young persons between the ages of 17 and 18 who lack capacity and who are in need of care and protection, as custody orders under the Children, Young Persons and their Families Act 1989 expire when the person attains the age of 17, and the PPPR Act generally does not apply until a person turns 18.⁸⁵  There are criminal offences that recognise sexual exploitation⁸⁶ or neglect or abuse of vulnerable adults who may lack capacity.⁸⁷ Protection orders have been made where there has been domestic violence towards people who lack capacity.⁸⁸ Some legislation that governs what can and cannot be done for people lacking capacity may be viewed as paternalistic and out-dated.⁸⁹

42. There is legislation with compulsory powers under mental health law and the law for people with intellectual disabilities who commit criminal offences that affects people who lack capacity.⁹⁰

⁸³ Judicature Act 1908, Schedule 2 High Court Rules, Part 4 subpart 7; and District Court Rules 2014, Part 4 subpart 7.

⁸⁴ A recent report on claimants’ experiences with the ACC appeal process does not address for example, problems ACC encounters in case management for claimants with diminished capacity for decision- making during the claims process: Acclaim Otago Understanding the Problem: An analysis of ACC appeals process to identify barriers to access to justice for injured New Zealanders (Acclaim Otago and University of Otago Legal Issues Centre, Dunedin, 2015).

⁸⁵ Children, Young Person and Their Families (CPYF) Act 1989, s 108; Protection of Personal and Property Rights Act 1988, s 6(2). See AJ Cooke “State Responsibility for Children in Care” (PhD Thesis, University of Otago, 2014) http://hdl.handle.net/10523/4796; Personal communication from L Harrison, (former Barrister) (Dunedin, 2015).

⁸⁶ Crimes Act 1961, s 138.

⁸⁷ Crimes Amendment Act (No 3) 2011, ss 151, 195 and 195A create criminal liability for failure to provide necessaries of life, or protect from ill treatment or injury to a child or a vulnerable adult. Section 2 of the Crimes Act 1961 defines a “vulnerable adult” as a person who is unable, by reason of detention, age, sickness, mental impairment, or any other cause to withdraw himself or herself from the care and charge of another. The definition of “vulnerable adult” does not specify an age threshold, but it is presumed to refer to persons over 18.

⁸⁸ Domestic Violence Act 1995, s 11. See for example, AR and Anor v RDH FC Christchurch FAM-2008- 009-002784.

⁸⁹ Contraception Sterilisation and Abortion Act 1977 and the Alcohol and Drug Addiction Act 1966. This latter legislation is due to be repealed: Substance Addiction (Compulsory Assessment and Treatment) Bill 2015.

⁹⁰ Mental Capacity (Compulsory Care and Treatment) Act 1992; Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; Criminal Procedure (Mentally Impaired Persons) Act 2003.

Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT) Act)

43. The MH(CAT) Act provides a civil commitment process under which people who are considered to be “mentally disordered” may be placed under compulsory assessment and treatment. The MH(CAT) Act’s criteria for compulsion are not based on capacity but on a special legal test of “mental disorder” (based on the presence of discrete mental phenomena) and a serious threat of harm to self or others, or seriously diminished capacity to care for self.

44. Mental health legislation and mental capacity legislation have very different aims. The MH(CAT) Act provides powers for the detention and treatment of a person with a mental disorder, if necessary without that person’s consent. It is primarily concerned with the reduction of risk, both to the patient and to others, using compulsion where necessary. By contrast, mental capacity legislation, such as the PPPR Act, is concerned with enabling and supporting people to make their own decisions where possible. Whilst there is a need to protect people, the legislation is not intended to provide coercive powers (which can also be a problem, as discussed above).

45. The interface between the compulsory powers under the MH(CAT) Act and the PPPR Act is not entirely clear and sometimes the court has a choice over which Act to use. In Canterbury District Health Board v MH,⁹¹ the Family Court confirmed that the MH(CAT) Act cannot be used to keep a patient with dementia in hospital against her wishes for the purpose of providing for the patient’s physical, not mental, healthcare, despite such care not being available at her home.

46. Under the MH(CAT) Act, mental capacity is largely irrelevant, as the Act does not specifically require a compulsory patient’s capacity to consent to their psychiatric treatment to be formally assessed at intervals, or to be taken into account in deciding on their detention. A study has shown that of those patients under compulsory treatment in New Zealand, many of whom are under community treatment orders, a significant proportion – perhaps as many as two-thirds of involuntary patients − might retain the capacity to agree with, or refuse, their proposed course of psychiatric treatment. Therefore, potentially only one-third of involuntary patients do not have capacity for decision-making affecting their care.⁹²

47. The New Zealand mental health system has an emphasis on informal care. The safeguards available to patients subject to compulsory powers, such as the watchdog role of the District Inspector, do not apply to informal patients who are not subject to the MH(CAT) Act. To date, there has been no consideration by the New Zealand Government of the English law reforms concerning the position of compliant people who lack capacity and do not object to their detention in care facilities, who are effectively deprived of their liberty but are not under the MH(CAT) Act.⁹³

48. There is a complex interface between these two legislative regimes, particularly where an individual lacks capacity to consent to or refuse treatment. Problems include: the extent to which the proper treatment is for a “mental disorder” and would therefore be authorised under the MH(CAT) Act, or treatment is for a general medical condition that is being provided on a “voluntary” basis; how the presumption of competence operates in these circumstances; and whether the provisions of the PPPR Act – rather than the MH(ACT) Act – should apply, since it is likely to be less restrictive of a person’s human rights and freedom of action.

49. The IDCCR Act is unique to New Zealand.⁹⁴ It provides for compulsory care and rehabilitation within the health system of persons with an intellectual disability who commit criminal offences and who are no longer subject to the criminal justice system (referred to as “care recipients” or “special care recipients”). There are two principal pathways into the care regime under this Act. The most common route is a court order upon being found unfit to stand trial, found not guilty on the basis of insanity, or convicted of an imprisonable offence.⁹⁵ Rarely, a prison manager will activate the second route, by applying for the making of a care order under s 29 of the IDCCR Act.⁹⁶

50. Eligibility is determined by application of a test based on assessed IQ and social functioning. The Act defines an intellectual disability as a permanent impairment that has manifested during the developmental period of the person and results in significantly sub-average general intelligence (IQ less than 70) and significant deficits in adaptive functioning.⁹⁷ When a compulsory care order is made, the judge must specify the term of that order, with a maximum of three years.⁹⁸ The court reviews the care and rehabilitation plan at six months but only has the power to recommend changes. Care recipients are legally represented at some stages of the proceedings and there are six-monthly clinical reviews. However, there is no ongoing independent scrutiny of whether the care recipient continues to meet the criteria of intellectual disability.⁹⁹ Specialist assessors are designated by the Director-General of Health and are qualified health and disability professionals. Their role is to assess the level of risk posed by the individual and to try and predict the likelihood of future behaviour.¹⁰⁰

51. Exiting the compulsory care regime can be difficult, particularly for care recipients who are not likely to rehabilitate. As intellectual disability is defined in the Act as a permanent status, the ongoing detention of people under the regime presents a conundrum: as there is no guarantee that rehabilitation will necessarily reduce risk factors, there is potential for an indefinite sentencing regime with disproportionately severe infringements on an individual’s liberty. In RIDCA Central v VM,¹⁰¹ the Court of Appeal held the principle of proportionality required there to be a balance between the need to protect the community and the liberty interests of the care recipient in extending a compulsory care order. The Court concluded that any “order must be the least coercive and restrictive option available”.

52. While the expressed aim of the IDCCR Act is to limit the detention period to a maximum of three years, in reality the failure of the legislature to define criteria limiting the courts’ ability to extend such orders has repeatedly resulted in a de facto position whereby compulsory care risks becoming indefinite preventive detention.¹⁰² In a dissenting opinion in the application for leave to appeal in VM, Baragwanath J highlighted the “difficult balance” between protecting the community from low level offending by individuals, who because of intellectual disability are not legally responsible, and the human rights of such people. ¹⁰³
    

⁹¹ [2012] NZFC 4432, Judge C P Somerville.

⁹² J Skipworth “Should Involuntary Patients with Capacity Have the Right to Refuse Treatment” in J Dawson and K Gledhill New Zealand’s Mental Health Act in Practice (VUP, Wellington, 2013) at 218. See also Lepping, Stanly and Turner, above n 29 and discussed in Chapter 1A of this report.

⁹³ See Chapter 3 − Liberty Safeguards, for discussion of the interface between MH(CAT) Act and the PPPR Act.

⁹⁴See W Brookbanks ”Further Reform of Unfitness to Stand Trial” in Dawson and Gledhill, above n 92 at 321.

⁹⁵ Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(2)(b) (detention in a secure facility of a defendant found unfit to stand trial or insane as a special care recipient) and s 25(1)(b) (orders declaring a defendant found unfit to stand trial or insane as a care recipient to receive care under a care programme).

⁹⁶ Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 29 allows a manager of a prison (in the case of a serving prisoner) or the Director of Area Mental Health Services (DAHMS) (in the case of a former special patient) to apply for an assessment if there are reasonable grounds for believing that the person has an intellectual disability.

⁹⁷ Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 7(1); s 7(5) states that the developmental period of a person “generally finishes when the person turns 18 years”. Evidence now shows that cognitive development takes place at least until the mid-20s, and is dependent on a person’s developmental environment. Often care recipients who been raised in a developmentally deprived circumstances will show significant improvement in cognitive functioning. This has already resulted in some care recipients no longer meeting the criteria of intellectual disability and under s 8(2), the IDCCR Act does not apply. Email from Anthony Duncan (National Advisor to the IDCCR Act, Ministry of Health) to A Douglass regarding the IDCCR Act (7 October 2015).

⁹⁸ Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 46.

⁹⁹ For example, in a case where the writer represented the care recipient, the initial assessment undertaken in the criminal court was based on reports 12 years prior and there had not been a reassessment of the care recipient’s adaptive functioning for the purpose of bringing the person under the IDCCR Act regime.

¹⁰⁰ Ministry of Health Guidelines for the Role and Function of Specialist Assessors under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (Ministry of Health, Wellington, 2004) at 5−6. These guidelines have not been reviewed since originally published and the measures for predictive risk have not been translated into the New Zealand context.

¹⁰¹ Regional Intellectual Disability Care Agency Central v VM [2012] BCL 398; [2011] NZCA 659 at [92(a)]. The appeal upheld a High Court decision, VM v RIDCA Central (Regional Intellectual Disability Care Agency) HC Wellington CIV-2009-485-541 (Simon France J). In both VM and another High Court appeal, L v Regional Intellectual Disability Care Agency Central HC Wellington CIV-2010-485-1279 (Mallon J), the care recipients were women in their mid-forties who had assaulted and threatened violence against their caregivers. Prior to being under compulsory care orders they had largely lived in the community with supported care.

¹⁰² W Brookbanks “Managing the challenges and protecting the rights of intellectually disabled offenders” in B McSherry and I Freckleton (eds) Coercive Care: Rights, Law and Policy (Routledge, Abington Oxon, 2013) at 219.

¹⁰³ RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2010] NZCA 213 at [16]. 

53. The IDCCR Act has not been reviewed since it was passed. When it was first introduced, a significant funding pool was allocated from disability resources and there is more potential in disability services for the provision of individualised care packages than under the MH(CAT) Act.¹⁰⁴ In a recent study of people with intellectual disability, lawyers, among others, voiced concern that some of the procedural aspects of the IDCCR Act impacted on access to justice by care recipients.¹⁰⁵ The Act also does not cover the unknown number of prisoners who may lack capacity through intellectual disabilities or those who have suffered brain injuries and were convicted prior to the Act coming into force.¹⁰⁶

54. The HDC Code is now a central part of New Zealand’s health and disability regulatory framework. The interface between the PPPR Act and the HDC Code for people who lack capacity is not well understood. The PPPR Act is essentially about incapacity and the formal procedures for the appointment of substitute decision-makers for adults who lack capacity in a wide range of situations, some of which cross over into healthcare delivery. In contrast, the aim of the HDC Code is to place patients at the heart of healthcare decision-making and, where possible, without a substitute decision-maker. It is concerned with informal procedures for ensuring that a patient is capable of giving consent or refusal to a healthcare procedure and the standards to be adhered to by health professionals and providers of healthcare. Decisions are made every day by, or for, people in the health system who may have diminished capacity to give informed consent to healthcare procedures.
    
    
55. Capacity to make an informed choice and give informed consent to healthcare procedures is a key component to ensuring that the rights of patients are protected under Rights 5, 6 and 7 of the HDC Code.¹⁰⁷ Decision-making capacity may become an issue in the healthcare setting where a person’s ability to give informed consent is in question because of their refusal, for example, to consent to a treatment decision or to undergo a needs assessment for the purpose of assessing the level of ongoing care they require.¹⁰⁸
    
    
56. Unlike the PPPR Act, the HDC Code does not define the concept of capacity but it does recognise the common law presumption of competence (Right 7(2)) and that those with impaired capacity should participate as much as possible in decisions regarding their healthcare (Right 7(3)).¹⁰⁹ The presumption of competence may often be entirely appropriate in the context of legal proceedings but it does not provide an adequate framework for clinical practice. The discussion on the presumption has tended to proceed without consideration of a clinician’s duty of care towards a patient, particularly the circumstances in which there is a duty to assess the patient’s competence.¹¹⁰
    
    
57. There is no formal requirement or procedure for assessing a person’s competence under the HDC Code for the purposes of giving or refusing informed consent under Right 7. Nevertheless, the Health and Disability Commissioner has found a GP to be in breach of the HDC Code for failing to assess the capacity of a woman with Huntington’s disease who was living in isolation and squalor in her own home over a 10-year period. The doctor was found to be in breach of Right 4 in that she failed to provide adequate care and support for her patient.¹¹¹
    
    
58. If a person is assessed as lacking capacity and there is no substitute decision-maker, Right 7(4) of the Code of Rights provides legal justification for providing health and disability services without consent. The right is based on the common law principle or doctrine of necessity and justifies healthcare providers acting in what they consider to be the person’s best interests. It largely provides a defence for the health professional, rather than a safeguard for the patient, and does not provide a good basis for making important decisions with ongoing consequences for people who lack capacity.¹¹²
    
    

¹⁰⁴ Email from Anthony Duncan, National Advisor in the IDCCR Act 2003 regarding the IDCCR Act (7 October 2015).

¹⁰⁵ Mirfin-Veitch, Gates, Diesfeld and others, above n 21 at viii. This study recommended that there needed to be mandatory training for individuals representing clients under the IDCCR Act.

¹⁰⁶ Justice S Glazebrook “Foreword” in Dawson and Gledhill, above n 92 at 9. It is estimated that some 64 percent of prisoners have experienced a head injury. The extent of prisoners having impaired decision- making capacity is unknown. For example, the writer represented a prisoner before the Parole Board with dual disabilities (mental health and intellectual disabilities) who was subject to an indefinite sentence of periodic detention but whose disabilities only became apparent when in prison.

¹⁰⁷ The HDC Code is set out in Appendix C. Right 5 is the right to effective communication; Right 6 is the right to be fully informed; and Right 7 is the right to make an informed choice and give informed consent. Section 11 of the New Zealand Bill of Rights Act 1990 provides that everyone has the right to refuse to undergo medical treatment. The word “everyone” has been interpreted to mean every person who has capacity to consent: Re S [1992] 1 NZLR 363, although this interpretation would now be called in question with the modern notion of legal capacity under the CRPD.

¹⁰⁸ In Bedford [2013] NZCorC Decision No. 43/2013, the Coroner commented that no capacity assessment was undertaken when the patient (under the MH(CAT) Act) with Korsakoff’s dementia refused insertion of a nasogastric tube for a hernia repair operation and subsequently died.

¹⁰⁹ The terms “capacity” (PPPR Act) and “competence” (HDC Code) are used interchangeably in the relevant legislation.

¹¹⁰ PDG Skegg “Presuming Competence to Consent: could anything be sillier?” (2011) 30 U Queensland Law J 165.

¹¹¹ Health and Disability Commissioner: General Practitioner Dr C, 11 HDC00647.

¹¹² The doctrine of necessity and Right 7(4) is discussed below in Chapter 3 Liberty Safeguards and Chapter 6 Research on People who Lack Capacity.

59. Providers of services for the elderly, including District Health Boards (DHBs) and rest home proprietors, often seem confused about the requirements under the PPPR Act. They often require prospective residents to appoint an attorney for personal care and welfare decisions (a HealthCERT audit requirement), whether or not the resident wishes to do so, resulting in a facility insisting on the appointment of an EPOA as a requirement for admission. There is also inconsistency on how Right 7(4) of the HDC Code is applied.¹¹³
    
    
60. Unlike in England, the prominence of capacity issues in health and disability law has not led to a comprehensive review of adult guardianship law in New Zealand. One of the consequences of the “no-fault” accident compensation scheme and its statutory bar against suing health professionals for medical negligence causing “personal injuries” is the absence in New Zealand of litigation, and associated case law, contesting and clarifying capacity to consent. Yet capacity to consent is increasingly recognised in the more informal “case law” of the Health and Disability Commissioner’s opinions.¹¹⁴
    
    
61. Appendix B is a review of the Health and Disability Commissioner’s opinions and of decisions of the Human Rights Review Tribunal. This review shows that over time, the issue whether a consumer/patient lacks capacity or has impaired capacity for decision-making is becoming more prevalent in complaints investigated. Even where there is a substitute decision-maker appointed (a welfare guardian or attorney under an EPOA) there have been breaches of Rights 6 and 7 of the HDC Code in circumstances where the person is unable to make an informed choice or give informed consent. These breaches have occurred when there has been a failure to properly activate an EPOA or to consult with the legally appointed substitute decision-maker. There is a greater emphasis on ensuring that providers adequately assess capacity, and are clear on the legal basis on which substitute decisions are made when a person cannot give informed consent.
    
    
62. The Commissioner is charged with investigating complaints under the HDC Code.¹¹⁵ It is a reactive, not a proactive, process, and does not provide adequate protective mechanisms for those who lack capacity and are especially vulnerable in the health system. The Commissioner’s opinions are limited to breaches of the HDC Code, and the requirement for the Commissioner to investigate a complaint initially has a gatekeeper effect, as few complaints are investigated in fact and even fewer result in further action through the tribunal or disciplinary processes.¹¹⁶ There is a health and disability advocacy service under the Commissioner, but the role of the advocates is centred on providing assistance when a complaint is made, rather than at the front-end of the informed consent process.¹¹⁷

63. The PPPR Act is in need of review.¹¹⁸ The legal landscape of mental capacity law in New Zealand is fragmented. There is neither an overarching legal framework nor a cohesive social policy in New Zealand for dealing with issues arising for people who lack capacity. Mental capacity affects all aspects of people’s lives and access to the legal system. There is a danger of a silo effect isolating different aspects of the legal system, compartmentalising the issues in elder, family, property, medical, mental health or disability law, and so on. Increasingly, there is greater recognition that regulatory frameworks in the health and social policy spheres need to avoid these gaps. As Professor Laurie says: ¹¹⁹



These regulatory gaps are described as “liminal” (the spaces in between). They often exist outside existing formal legal and social structures, and are often in a state of flux. Citizens who also experience flux in their capacity can find themselves in liminal regulatory spaces where at times laws might, or might not, apply to them.

64. A review of the law therefore requires a coordinated government approach.

¹¹³ Letter from Chris Moore (President, New Zealand Law Society) to Claire Kibblewhite (Ministry of Social Development Office for Senior Citizens) regarding the 2007 Amendments to Enduring Powers of Attorney Provisions (5 July 2013) https://www.lawsociety.org.nz/__data/assets/pdf_file/0011/69194/l- MSD-EPAs-5-7-13.pdf.

¹¹⁴ Negligent failure to obtain informed consent was previously a ground for medical misadventure but is no longer since the introduction of treatment injury provisions in the Accident Compensation Act 2001, as amended in 2005.

¹¹⁵ Health and Disability Commissioner Act 1994, s 14(e). The Commissioner can investigate potential breaches of the HDC Code on a complaint or on his own initiative.

¹¹⁶ Email from Chris Moore (President, New Zealand Law Society) to the Health and Disability Commissioner regarding Review of the HDC Act and Code (17 February 2014) https://www.lawsociety.org.nz/__data/assets/pdf_file/0012/75999/l-HDC-Act-and-Code-Review-17-02- 14.pdf.

¹¹⁷ Health and Disability Commissioner Act 1994 s 30 sets out the functions of advocates, which includes ensuring that consumers are aware of their rights under the HDC Code and to provide assistance to ensure that healthcare procedures are performed with informed consent of the consumer: s 30(d). Health advocates can also receive complaints and assist persons who wish to pursue a complaint.

¹¹⁸ B Atkin “The Protection of Personal and Property Rights Act 1988 − Update and Reflections” (2013) 44 VUWLR 439.

¹¹⁹ These regulatory gaps are described as “liminal” (the spaces in between) in socio-political literature. Liminal spaces are realms of possibility and transition. Interview with Professor Graeme Laurie, Chair of Medical Jurisprudence and Director of the JK Mason Institute for Medicine, Life Sciences and Law, Edinburgh University (A Douglass, Edinburgh, 29 May 2015).