Best practice standards

  1. The New Zealand health and disability sector is very familiar with professional standards, guidelines and Codes of Practice, and with the general use of subordinate or secondary legislation.869 A significant segment of New Zealand public law has evolved from subordinate legislation and the consideration of its legal effect. 870 Although there can be confusing terminology, many secondary sources of “subordinate legislation”, such as “guidelines”,871 are more concerned with establishing best practice standards than definitive rules or regulations.

  2. Nevertheless, the HDC Code is itself subordinate legislation, as it is a regulation issued under the Health and Disability Commissioner Act1994.872 Non-compliance with practice standards in the health and disability sector may result in a provider of services (whether an individual or an institution) being found in breach of Right 4(2) of the HDC Code for failing to provide services that comply with “legal, professional, ethical, and other relevant standards.”873

  3. The HDC Code only applies to “providers” of health and disability services and does not cover the wide range of people, including some professionals, who ma be involved with people with impaired capacity, such as paid carers, social workers, appointed substitute decision-makers under an EPOA or welfare guardian, and lawyers. Therefore, a Code of Practice based on the English MCA model would need to have much wider application than standards for health practitioners under the current HDC Code.874

869 For example, the Human Assisted Reproductive Technology Act 2004 requires the Advisory Committee to the Minister of Health (ACART) to promulgate advice and guidelines under the framework of that Act and for providers of fertility services to adhere to these, including ethical review by the ethics committee of the assisted reproductive procedures that fall within the guidelines.

870 The Parliament’s Regulations Review Committee may draw attention to delegated legislation, including legislative instruments and disallowable instruments to the House under Standing Order 319. See R Carter, J McHerron and R Malone Subordinate Legislation in New Zealand (LexisNexis NZ Limited, Wellington, 2013) at 171. “Instrument” as defined under the Legislation Act 2012, s 48 (a) means “any instrument (whether called regulations, rules, an Order in Council, a notice, bylaws, a code, a framework, or by any other name) that has legislative effect and that is authorised by an enactment.”

871 For example, the Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (Ministry of Health, Wellington, 2012) provide guidance intended to support the effective and lawful use of the Act and recognise that the Act is not a comprehensive framework for mental health treatment. The introduction to these guidelines states that “no piece of legislation can be framed in such a way that all circumstances that can possibly arise are precisely covered. If there is uncertainty as to the “correct” interpretation, any action should be taken in good faith, be consistent with the spirit and intent of the Act, and reflect best clinical practice.”

872 As noted above there is no guidance in the HDC Code about the concept of capacity – referred to as “competence’ or how to assess whether the person has capacity for the purpose of giving or refusing informed consent under Right 7 of the HDC Code. Sanctions for a finding by the Commissioner that a health practitioners is in breach of the HDC Code can result in a referral to the Health Practitioners Disciplinary Tribunal or to the Director of Proceedings with potential for a compensation claim in the Human Rights Review Tribunal.

873 For example, a GP’s failure to assess the competence of a woman with Huntington’s disease was found to be in breach of Right 4(2) of the HDC Code: HDC Opinion 11 HDC00647 – GP, Dr C (10 June 2013). See Chapter 1B.

874 For example, the current HDC Code does not apply to informal carers, lawyers, social workers, appointed substitute decision-makers, e.g. a welfare guardian or an attorney appointed under an EPOA.

Social workers
  1. In England, social workers are actively involved with the operation of the MCA, including assessing capacity as well as best interests, for the purpose of meeting the requirements under the Act, including the authorisation of Deprivation of Liberty Safeguards (DoLS) and reporting to the COP.875 The Code of Practice sets out case studies and gives examples of how to implement the law in situations that can be ethically complex and challenging. Social workers are very familiar with managing a conflict between the person with impaired capacity and their family, or disputes between family members over the care and living arrangements for their relative.

  2. In some instances, the COP has preferred the opinion of an independent social worker on the issue of a person's capacity over a medical expert on the basis that the social worker had greater knowledge of the person's environment and their potential to achieve capacity for decision-making. In X v K 876, a young man, L, with mild mental disability and some learning difficulties, had previously been assessed as lacking capacity regarding his living arrangements and contact with others. When deciding an application by the local authority to place L in his own supported accommodation, Mrs Justice Theis preferred the evidence of an independent social worker over the report of th psychiatrist who had not provided a "compliant" assessment of L's capacity. The psychiatrist had not revisited L or considered the use of drawings or pictures, even though this communication method was used on a daily basis as support for L. The Court found that the psychiatrist's assessment was not in keeping with the provision of support required under Article 12(3) of the CPRD.877

  3. In New Zealand, hospital social workers have traditionally been familiar with the procedural requirements of the PPPR Act and their role is pivotal in assisting families and coordinating applications to the Family Court under that Act. Social workers now practice in diverse environments, from private practice, to statutory roles, and non-governmental and not-for-profit agencies. In response to the need to navigate the complexities of working with families under the PPPR Act, they have developed their own voluntary practice guidance. 878 This requires that when a client's capacity is being questioned, "Social workers will be competent to have conversations about issues of client capacity with others involved in a client's care," and this includes understanding capacity assessments required for activation of an EPOA.879

  4. The next step would be for greater formal recognition to occur in New Zealand of the role of social workers and all allied healthcare professionals, such as speech therapists and occupational therapists, in working with people with impaired capacity and their families. Based on the experience in England, a Code of Practice could provide valuable guidance to them including informing them on what the court requires from them in court proceedings.

875 A “best interests assessment” is often carried out by social workers under s 4 of the MCA. There is a system of accreditation and specific regulations for the role of a “best interests assessor”. See Guidance note: Ruck Keene and Butler-Cole, above n 201.

876 X v K [2013] EWHC 3230 (Fam).

877 X v K, at [51]. The Court specifically referred to [4.16] of the Code of Practice which states: “It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way which is most appropriate to help the person understand”. The social worker had in fact carried out a best interests assessment (not a capacity assessment). However, this evidence was preferred by the Court to the capacity assessment undertaken by the psychiatrist, resulting in the Court requesting a further capacity assessment to revisit the issue of L’s capacity.

878 Australian New Zealand Association of Social Workers (ANZASW) Social Work and Protection of Personal and Property Rights Act Working Group “An ANZASW Practice Note for Social Workers Working with the Protection of Personal and Property Rights Act 1988” (2015). The practice note is to accompany the Code of Ethics of Aotearoa New Zealand Social Work Association. http://anzasw.nz/wp-content/uploads/Practice-Note-for-SW-working-with-PPPR-Act-Sept-2015.pdf.

879 ANZASW, above n 878 at [2.2] – [2.4].

Guidance for lawyers

  1. There are guidelines issued by the Family Court for the lawyer appointed to represent a person subject to an application under the PPPR Act, but these guidelines are specific to the representation and that lawyer’s reporting to the court.880

  2. There is a lack of guidance for lawyers generally on issues surrounding mental capacity and how to assess or asist clients who lack capacity.881 Property solicitors, for example, are often faced with questions from a family over their relative's capacity to make an EPOA or a will   In circumstances where a client's capacity is in doubt, it is often desirable, and a matter of good practice, for lawyers to obtain a medical or expert opinion, especially regarding complex or serious decisions. Lawyers need to know what kind of doctor or other health practitioner they should request an opinion from, how to clarify the relevant legal tests, how to provide the relevant information, and how to explain the particular areas of capacity the lawyer wishes the doctor to report on. Individuals may retain capacity to make decisions in some areas of functioning but not in others. They might, for example, be able to understand the issues involved in appointing an enduring attorney to deal with their finances but lack the capacity to make specific financial decisions themselves.882  A lawyer may need to explain these complexities to the health professionals concerned.

  3. The statutory framework under the PPPR Act does not codify all the common law tests of capacity recognised in case law, such as the test for capacity to make a will, capacity to marry, capacity to make a gift, capacity to contract, capacity to litigate, and so on. A Code of Practice would recognise that there are both common law and statutory tests of mental capacity, and would explain the different capacity tests that apply when the client may lack capacity to give instructions or make their own legal decisions.
Compliance with the CRPD
  1. There are considerable advantages in developing a Code of Practice concurrently with reform of the legislation to bring the law and practice in line with the new human rights framework under the CRPD. A Code of Practice would have greater impact if recognised in revised and well-drafted legislation, and enable better understanding of the law. It would explain the law, provide public education, and establish a framework for professionals involved with people with impaired capacity to make decisions. In doing so, it could reduce the need for State intervention and court proceedings to resolve some issues.

  2. A Code of Practice would be an “appropriate measure” through which New Zealand could implement supported decision-making in practice and would give effect to New Zealand’s commitment to Article 12(3) of the CRPD.883

880 Judge PF Boshier, Principal Family Court Judge, Guidelines for counsel for subject person appointed under the Protection of and property Rights Act 1988, March 2011, http://www.justice.govt.nz/family-justice/about-us/info-for-providers/documents/guidelines-counsel-for-subject-person-pppra.pdf As discussed in Chapter 1B, these guidelines present their own set of challenges for the lawyer appointed to represent the subject person where the person’s will and preferences are contrary to the views of others about their welfare and best interests.

881 The Law Society of New South Wales, Australia has published a practical guidance for lawyers which gives guidance to a lawyer’s role in a capacity assessment, principles applicable, and techniques available to lawyers. Law Society of New South Wales A Practical Guide for Solicitors: When a client’s capacity is in doubt (LSNSW, Sydney, 2009). See also legal toolkits available state by state in Australia, e.g. NSW Toolkit: http://capacityaustralia.org.au/wp-content/uploads/2013/10/NSW-Legal-kit-8pp-sept-2013-version-.pdf.

882 Letts, above n 282 at 175.

883 United Nations Convention on the Rights of Persons with Disabilities, art 12(3).

  © 2020 Alison Douglass