What do doctors, lawyers and their clients need to know about judging whether people have the mental capacity to make decisions?
Barrister Alison Douglass has produced a guide to assist legal and medical professionals to help future-proof the lives of people with dementia, brain injury, mental health problems and learning disabilities.
It comes before moves to reform the Protection of Personal and Property Rights Act, also known as the triple P law, which is three decades old.
Photo: Flickr
Douglass says updating the law is an urgent matter and New Zealand is lagging behind other countries in this area.
On the ground, people find the law too difficult to work with, she says.
“There’s a bright line in the law which says that if you have capacity then you are entitled to make your own decisions but if you don’t then other people, or substitute decision makers will make those decisions.”
Capacity is decision and time specific, says Douglass. The starting point for capacity is informed consent.
“It comes traditionally from medical law about doctors deciding that a person, or a patient, has capacity an informed decision about their treatment or care and if not, whether someone else need to make that decision.
“Then it’s expanded across the law.”
Under the ‘triple P’ law, the court can make an order to appoint a welfare guardian or property manager if someone is found not to have capacity, and it encourages people when they do have capacity to appoint someone under an enduring power of attorney, says Douglass.
“This has become very problematic area for lawyers in particular to facilitate clients making enduring powers of attorney because sometimes there’s questions of whether their client has the capacity to make enduring power of attorney.”
The law predates our Health Act, she says.
“Really, this is about what does supported decision making mean in practice and how do the professionals involved, whether it’s the doctors assessing the person’s capacity, or the lawyer, supporting the client in making legal decisions, how do they go about reaching that decision, that the person can exercise their legal capacity and make decisions.”
Douglass believes advanced directives are under used in the health system.
“This is again the idea that you make decisions about advanced refusal of treatment while you have capacity for that time when you might lose capacity.”
Advanced directives are recognised in the code of patients’ rights but for it to be valid, and for the doctor to follow it, people need to be supported in making it, she says.
