Chapter 7: Code of Practice

Chapter 7 is in three sections:

  1. A description of the English Code of Practice under the Mental Capacity Act.

  2. The case for a Code of Practice in New Zealand.

  3. Discussion of current guidance and scopes of practice for health practitioners undertaking capacity assessments in New Zealand; a survey undertaken of doctors concerning such assessments; and first steps towards establishing nationally consistent guidance, with the development of a Toolkit for Assessing Capacity.
  1. In New Zealand, there is no nationally accepted Code of Practice or statutory guidance on capacity law and practice for health practitioners, lawyers or others involved with people with impaired capacity. Understanding the law and applying it is an inherently interdisciplinary exercise combining law, healthcare and ethics. It involves health practitioners (doctors, nurses and psychologists) making the capacity assessment and lawyers and judges applying that assessment to the legal tests. Social workers, healthcare providers and families often initiate the legal process and provide valuable information about a person’s preferences.

  2. If there is to be a wider review of the PPPR Act, and its interface with the HDC Code, then it would be premature to draft a complete Code of Practice at present, when the law may change. The revised law should provide simple and concise legislation with an accompanying Code of Practice that would aid its implementation.837 The MCA Code of Practice has been pivotal in implementing the English legislation. It provides an excellent model from which to develop a New Zealand Code of Practice.

837 See discussion in Chapter IB, Overview of New Zealand Law and Chapter 4 Defining Capacity.

  © 2020 Alison Douglass