5A: BEST INTERESTS IN NEW ZEALAND LAW

Best interests and the PPPR Act

6. Promoting the “best interests” of people with impaired capacity is not a primary objective of the PPPR Act, although it is often assumed that it is. It is not stated as a key statutory principle governing the exercise of the court’s jurisdiction, nor as the basis for the appointment of a substitute decision-maker, such as a welfare guardian or an attorney under an EPOA. It is only once a substitute decision-maker has been appointed that the welfare and best interests of a person who lacks capacity becomes a paramount consideration in making decisions on that person’s behalf.⁶⁴⁰ There is also no clear direction that the court must make decisions in the person’s best interests.⁶⁴¹ In practice, the concept of best interests is given considerable weight in judicial reasoning, but the Act provides no guidance as to what best interests means or how this would be operationalised.
   
   
7. In some sections of the PPPR Act best interests is given priority. For example, in s 18(3), regarding the exercise of a welfare guardian’s powers, it is said: ⁶⁴²

   In exercising those powers, the first and paramount consideration of a welfare guardian should be the promotion and protection of the welfare and best interests of the person for whom the welfare guardian is acting, while seeking at all times to encourage the person to develop and exercise such capacity as that person has to understand the nature and foresee the consequences of decisions relating to the personal care and welfare of that person, and to communicate such decisions. [Emphasis added]

8. In the past, the “welfare and best interests” of the person has been referred to as “the welfare principle”.⁶⁴³ The notion of “welfare” adds little to the concept. “Welfare and best interests”’ could be described as a triple tautology as ‘best’, ‘interests’ and ‘welfare’ all have the same purpose.⁶⁴⁴ In philosophical literature, the notions of welfare and well-being are viewed as the same, whilst the term “best interests”, so important in legal thought, is little analysed.⁶⁴⁵

⁶⁴⁰ The phrase “best interests” is used in 10 sections of the PPPR Act, primarily to highlight when the Court (or a trustee corporation) should or should not make an order or appoint a manager, for example, ss 30(1)(c), 31(5)(e), 32(3)(b), 105(1)(a) and 125(b). Best interests is not a criterion for personal orders under s 10 or the appointment of a welfare guardian under s 12.

⁶⁴¹ Personal and Property Rights Act 1988, ss 12(5)(b), 18(3), 97A(2) and 98A(2).

⁶⁴² This expression of paramountcy is reiterated in s 36(1) with regard to property managers and in ss 97A(2) and 98A(2) with regard to attorneys in promoting and protecting the welfare and best interests of the donor, whether in regard to use of the donor’s property or personal care and welfare.

⁶⁴³ Re H [1993] NZFLR 225, Judge Inglis.

⁶⁴⁴ Interview with Dr Dominic Wilkinson, Director of Medical Ethics at the Oxford Uehiro Centre for Practical Ethics (A Douglass, Dunedin, 9 July 2015).

⁶⁴⁵ Herring and Foster, above n 306 at 484.

9. As with cases applying the English common law best interests test, a number of the early cases under the PPPR Act were concerned with sterilisation or orders to terminate a woman’s pregnancy.⁶⁴⁶ In KR v MR,⁶⁴⁷ where a personal order was sought to terminate the pregnancy of a disabled woman, Miller J considered the correct approach to the welfare principle: ⁶⁴⁸

   The welfare principle is capable of being viewed from a range of perspectives. It is susceptible to prevailing social norms and the personal values of the decision-maker. It is not an objective test and its workability depends on informed fact finding and the wise exercise of discretion.... The principal objectives also quite plainly envisaged that there may be ‘secondary’ objectives, which are unspecified. Nonetheless, from the point of view of the person in respect of whom the decision is being made the principal objectives are a surer guide to the exercise of the decision-maker’s discretion than is a general appeal to the welfare principle.

10. The participatory model of the PPPR Act requires appointed welfare guardians and property managers to consult with the person subject to the order. It is only when exercising these powers, however, that the “first and paramount consideration” is said to be promoting and protecting the person’s welfare and best interests.⁶⁴⁹ Importantly, this requirement that the welfare guardian or attorney must act in the person’s best interests only operates once incapacity has been established and the appointment of a substitute decision-maker made.
    
    
11. Despite this implied rather than expressed status of the best interests principle,⁶⁵⁰ there is now considerable case law, particularly in respect of living arrangements for older adults, where the Court has accepted jurisdiction and made orders considered to be in the person’s best interests, albeit against their express wishes. In Hutt Valley DHB v MJP,⁶⁵¹ MJP, the person subject to the application, neither wanted nor had any support at home but was unable to look after herself. Personal orders for dementia level care and necessary medical treatment were made despite the express wishes of MJP to return to her own home. The Court held that for its jurisdiction to be governed solely by the least restrictive intervention principle – which is explicit in the Act – would be to limit its application to the most compelling cases of incapacity. Judge Moss said a balancing approach was required:⁶⁵²

    It is in this area of fine distinction that meaning must be found to find the difference between an intervention to the least extent possible, which will enable capacity, and what is in the best interests and welfare of the patient.

⁶⁴⁶ See for example Re H, above n 643, and the decisions based on the parens patriae jurisdiction at common law: Re E v E [1986] 2 SCR 388; Re B (a minor, wardship: sterilisation) [1987] 2 All ER 206; and Secretary, Department of Health and Community Services v B (Marion’s case) (1992) 175 CLR 218.

⁶⁴⁷ Above n 52.

⁶⁴⁸ KR v MR, above n 52 at [65]. Miller J noted that whilst the welfare principle is the first and paramount consideration may appear “…self-evident at first blush, this was not necessarily so as a matter of construction under s 10”.

⁶⁴⁹ Personal and Property Rights Act 1988, ss 18(3) and (4) (welfare guardian) and s 98A(2) (attorney in relation to personal care and welfare).

⁶⁵⁰ The implicit reliance upon best interests by the Court was noted in a review of the implementation of the PPPR Act for people with intellectual disabilities: A Bray and J Dawson Who Benefits from Welfare Guardianship – A Study of New Zealand Law and People with Intellectual Disability (Donald Beasley Institute, Dunedin, 2000).

⁶⁵¹ Hutt Valley DHB v MJP [2012] above n 42. See also, Atkin B and Skellern A “Adults with Incapacity: The Protection of Personal and Property Rights Act” in Dawson and Gledhill, above n 92, at 341.

⁶⁵² Hutt Valley DHB v MJP above n 42 at [16].

12. The best interests principle tends to be disguised by the court in such a balancing exercise, where, for example, a person’s decision to refuse admission to residential care is called into question. This implicit reliance on best interests does not necessarily involve placing weight on the person’s current or previous will or preferences, however, but rather goes to the degree of intervention likely to be imposed by the court order.
    
    
13. The High Court has previously cautioned against adopting an overly legalistic approach when applying the PPPR Act’s express principles – to make the least restrictive intervention and maximise the person’s participation – to ensure that the welfare and best interests of the person are also taken into account, even if this matter is not expressed as a guiding principle of the Act.⁶⁵³ The precise role that best interests plays remains unclear, however, as it does not expressly apply to the initial finding that the person lacks capacity, nor is it the stated legal foundation for intervention against the person’s express preferences.

14. In contrast to adult guardianship law under the PPPR Act, the Care of Children Act 2004 (COCA) places the welfare and best interests of the child as the first and paramount consideration.⁶⁵⁴ The Act provides five principles to assist in this evaluation, with an emphasis on protecting child safety, and on parental and guardian responsibility.⁶⁵⁵
    
    
15. This difference between the PPPR Act and the COCA stems from fundamental policy differences between the two pieces of legislation. The purpose of the COCA is to promote children’s welfare and best interests, with an overall purpose of protecting children. The COCA anticipates that children may be able to participate in decisions about their interests,⁶⁵⁶ however, the threshold for state intervention is low.⁶⁵⁷ In contrast, the primary objectives of the PPPR Act are to make the least restrictive intervention possible while enabling and encouraging the adult person to exercise and develop their capacity.⁶⁵⁸ The aim of the PPPR Act is to “protect and promote” the interests of adults who are unable to manage their affairs. Although there is a protective function, there is a presumption of competence and recognition that intervention is only appropriate where an adult lacks capacity in law.

⁶⁵³ In the Matter of A [1996] NZFLR 359 (HC) where there was a personal order in addition to a welfare guardian order. The welfare guardian powers were restricted so that the subject person was not to leave the primary care residence without further order of the Court.

⁶⁵⁴ Care of Children Act 2004, s 4(1). ”The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration.”

⁶⁵⁵ In B v K [2010] NZCA 96 at [37] Arnold J explained how the principles in s 5 of the COCA are to be interpreted: “The answers to the question what is in the best interests of a particular child may differ as between judges. This is not because they involve discretionary decisions but because they involve evaluative assessments, which will not by their nature yield definitive answers”.

⁶⁵⁶ Care of Children Act 2004, s 16(1)(c) uses the term “helping the child to determine questions about important matters affecting the child”.

⁶⁵⁷ It is beyond the scope of this report to consider the competency of children in law to consent to medical treatment under the COCA, for example.

⁶⁵⁸ Protection of Personal and Property Rights Act 1988, ss 8(1) and (2).

16. The ill-defined concept of “welfare and best interests”, applying to substitute decisions for adults under the PPPR Act, runs the risk of being confused with the necessarily more protective policy objectives for the care and protection of children under the COCA. What is important is that all welfare tests are subject to limitations, and failure to clearly delineate these limitations risks tipping the balance from welfare and best interests, to protective paternalism.⁶⁵⁹

17. Healthcare decisions may be made in a person’s best interests under Right 7(4) of the HDC Code.⁶⁶⁰ If a “consumer” (person) is “not competent” to make an informed choice or give informed consent and there is no substitute decision-maker, Right 7(4) of the HDC provides legal justification for providing health and disability services without consent. The healthcare provider must, however, take certain procedural steps and act in what they consider to be the person’s best interests.
    
    
18. The Right is based on the common law principle of necessity. As described by Lord Goff in Re F,⁶⁶¹ this principle is based on the “need” for the patient to receive treatment, in their own interests, when they are (temporarily or permanently) disabled from giving consent. Read in conjunction with Right 7(1), this Right has the effect of ensuring that the provision of treatment without consent will not infringe the HDC Code in the specified circumstances, whether or not some statutory or common law justification is also applicable.⁶⁶²
    
    
19. The procedural steps in Right 7(4) requires a provider to take reasonable steps to ascertain the views of the person and consider whether there are reasonable grounds to believe that the provision of services would be consistent with the informed choice the person would make if they were competent.⁶⁶³ If the person’s views have not (or cannot) been ascertained, the provider should take into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise.⁶⁶⁴
    
    
20. There is no definition in Right 7(4) of “other suitable persons”. The range of possibilities could extend beyond family and next of kin to the patient’s GP (who may have admitted the patient to hospital), or caregivers and social workers who have some knowledge of the patient’s preferences and wishes, as well as an interest in their care and welfare. The provider of the services, for example a surgeon seeking consent from a patient for an operation, need only have a reasonable belief, based on their own judgment, as to the person’s best interests, to proceed. Right 7(4) may still be satisfied even where the views of other suitable persons cannot be obtained: for example, when it would be unreasonable to delay treatment, for example, and there is no-one available to consult in the timeframe available.

⁶⁵⁹ Email from Professor Mark Henaghan, Dean of Otago Law School to A Douglass (Dunedin, 3 May 2016).

⁶⁶⁰ Right 7(4) of the HDC Code is also set out in full in Appendix C and is discussed in Chapter 3 regarding the common law doctrine of necessity upon which it is based.

⁶⁶¹ F v West Berkshire Health Authority [1991] UK HL 1 (17 July 1990) Lord Goff of Chieveley at 24. Also cited in Re F (Mental Sterilisation), above n 125.

⁶⁶² Skegg, above n 109, at 300. There is also a defence available to providers under clause 3 of the HDC Code and they will not be in breach of the Rights in the Code in they take reasonable actions in relation to them.

⁶⁶³ Right 7(4) (b) and (c)(i).

⁶⁶⁴ Right 7(4)(c)(ii).

21. There is a substituted judgment element in Right 7(4) as the provider must reach a decision that is “consistent with” the informed choice that the person would make if they were competent to do so. Similar principles apply under Right 6, the right to be fully informed. However, Right 7(4) stops short of requiring the provider to act on the “views” of the person, once reasonable efforts have been made to ascertain them. Nor does it specify what the provider should be do where there are conflicting views, or views they disagree with, or how they should weigh the various views to reach a decision.⁶⁶⁵
    
    
22. Ultimately, Right 7(4)(a) suggests that the person’s best interests is the main factor in reaching a decision. Therefore, it seems, a provider could ascertain the views of the person and others but then decide that these views were contrary to the person’s best interests, and not follow them. For example, if a person has consistently said they do not wish to receive renal dialysis for their failing kidneys and their family supports this, then it seems the health practitioner, having ascertained their views, could still reach a legally (but not ethically) defensible decision to provide the treatment, based on what they consider to be in the person’s best interests.
    
    
23. Right 7(4) is a pragmatic response to the need for everyday healthcare decision-making for people unable to made decisions that are legally effective. The scope of its application is intended to be narrow. It relies largely upon the notion of “clinical” best interests as judged by the healthcare provider. As such, it provides an unsatisfactory standard for decision- making for people with impaired capacity in a wide range of circumstances. There is also considerable uncertainty about the extent to which Right 7(4) can be relied upon on a continuing basis, rather than in one-off situations or emergencies.⁶⁶⁶

⁶⁶⁵ Right 6 provides: “Every consumer has the right to the information that a reasonable consumer, in that consumer's circumstances, would expect to receive…”

⁶⁶⁶ The issue of relying on the doctrine of necessity and Right 7(4) of the HDC Code to make decision that deprive a person of their liberty is discussed in Chapter 3 Liberty Safeguards.