GP input wanted for review of ‘adult capacity’ laws

One issue of particular relevance to medical professionals is how decision-making capacity is defined

Many important personal decisions cannot legally be made by a person who lacks decision-making capacity. These important decisions include consenting to medical treatments and agreeing to move to an aged-care facility. People without decision-making capacity may also be vulnerable to financial and other forms of abuse. The Protection of Personal and Property Rights Act 1988 enables another person to be appointed to make decisions for the person under an enduring power of attorney, or as a welfare guardian or property manager appointed by the Family Court. This person is often a family member.

Te Aka Matua o te Ture | Law Commission has just published our second issues paper in our review of the law relating to adult decision-making capacity. It is focused on the Protection of Personal and Property Rights Act. It is important we hear from a wide range of people with direct experience of the current law, such as medical professionals.

One issue of particular relevance to medical professionals is how decision-making capacity is defined. The current law contains a number of different legal tests.

We suggest in our issues paper that these be replaced by a single test, under which a person would be considered to have decision-making capacity if they can:

• Understand the information relevant to the decision and the effect of the decision.
• Retain that information as necessary to make the decision.
• Use or weigh that information as part of the process of making the decision.
• Communicate the decision (whether by talking, using sign language or any other means).

We are also asking whether some considerations should be insufficient, by themselves, for a finding that a person does not have decision-making capacity, and whether a new legislation should specify these factors. These insufficient factors might include the person’s age, or whether they have ever been previously found to lack decision-making capacity.

Another issue we are looking at is whether persons other than health practitioners should be able to carry out decision-making capacity assessments. For example, in many provinces in Canada, assessments are also carried out by registered nurses, occupational therapists and social workers who have completed a relevant course.

More broadly, we also want to hear about how assessments of decision-making capacity could be improved. For example, what sort of support or reasonable accommodation should be available to the person being assessed? How can the cultural responsiveness of assessments be improved or assured? How could guidance and training be improved?

If you have thoughts on any of these matters, or on any of the other questions in our issues paper, please consider making a submission.

For more information on our project and how to make a submission, visit our project website at: huarahi-whakatau.lawcom.govt.nz.

Our website contains links to our issues paper and to the key topic summaries of some of the main issues we are considering. The key topic summaries are available in a range of accessible formats and te reo Māori. Submissions can be made on the questions in the second issues paper or on the questions in the key topic summaries. The website also has information about how you can make a submission on the review, including online or via email or post.

Submissions are due by 5pm Friday 21 June 2024.

Geof Shirtcliffe is commissioner, Te Aka Matua o te Ture | Law Commission