The ability to reason, make informed decisions, and understand the consequences of those decisions (referred to broadly as having capacity), is fundamental in the law. Capacity can determine whether a person’s decisions are considered valid, and whether that person will be held responsible for those decisions.
The Law Commission has just announced that it is commencing a review into the law relating to adult decision-making capacity.
The last major review of decision-making capacity was prior to the implementation of the Protection of Personal and Property Rights Act 1989 (PPPR Act), thirty years ago. Since then, there have been significant changes in attitudes about disability, with recognition that there are barriers that prevent disabled people from participating equally in society. In particular, there has been a move away from substituted decision-making (which underpins the PPPR Act) to supported decision-making, as provided for under the UN Convention on the Rights of People with Disabilities and incorporated into New Zealand domestic law. New Zealand also has an aging population, which is likely to result in greater numbers of people with diminished capacity over time.
The Law Commission’s review will consider:
- the test used to determine whether an individual has decision-making capacity, and in particular whether the assessment should be made of an individual alone, or with the supports that they would normally have to assist their decision-making;
- if a person doesn’t have capacity, should the result be substituted decision-making, which involves one person making a decision on behalf of another person, or supported decision-making, where the focus is on supporting a person to make their own decisions;
- whether a decision made for a person who lacks capacity should be based on that person’s objective best interests, or on what is believed to be their will and preferences;
- the use of advance directives, including the types of decisions that could be covered, whether they should be binding, whether legal advice should be required when they are made, and whether there should be a central register so that they are accessible when they are needed;
- enduring powers of attorney, and whether any changes need to be made to the processes for creating and using them; and
- whether changes need to be made to various pieces of legislation which allow decisions to be made for a person who does not have capacity once a court order has been made.
The review also acknowledges that the current laws relating to capacity do not take into account tikanga and te ao Māori perspectives, where decision making may have more whānau involvement and be less focused on an individual.
The review will also have implications for advance care planning, which is a process of discussion and shared planning for future health care which involved the individual, their family/whānau (if the person chooses), their health care professionals, and in some cases their lawyer. Advance directives (most commonly refusing consent to treatment in advance) are regularly used as part of advance care planning and implementation process.
The Law Commission has called for submissions from the public on views about decision-making capacity. These submissions can be made until 3 March 2023. Once the Law Commission has considered the submissions it will release its report, with any recommended changes to existing laws.
Special thanks to Senior Associate Nick Laing and Professional Support Lawyer Hayley Dale for preparing this article. If you have any questions about the Law Commission’s review, or about capacity laws generally, please contact a member of our health law or elder law teams.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.