1. The second category of reform concerns major gaps in New Zealand legislation where English law provides models from which New Zealand could learn and adapt into New Zealand law. From a New Zealand perspective, the most significant development in English law has been the realisation that the doctrine of necessity under the common law – the principle that necessary treatment and care can be provided to a person in their best interests – which is expressed in New Zealand through Right 7(4) of the HDC Code, provides inadequate legal safeguards for people who lack capacity and who are unable to consent or object to their healthcare, their living arrangements, or their participation in research. This report’s recommendations for New Zealand law therefore include:
  • Liberty safeguards: Liberty and freedom of movement are values of fundamental importance in our society, yet currently in New Zealand, for some people who lack capacity, there is no legal process governing their loss of liberty. In a broad range of settings, people who lack capacity are detained, and under the continuous supervision and control of those caring for them, and not free to leave. Yet, in many cases – such as where they are not under the authority of the mental health legislation (MH(CAT) Act) or an order made under the PPPR Act – no process is automatically triggered to review the lawfulness or appropriateness of their detention. This is the so-called “Bournewood gap” that has led to major developments in England under the MCA and in the European Court of Human Rights, including the establishment of the “Deprivation of Liberty Safeguards” (DoLS) to fill the gap. In New Zealand, courts (and the Mental Health Review Tribunal) review the position of people detained in psychiatric facilities under the MH(CAT) Act, and some orders for secure residential placement are made under the PPPR Act by the Family Court. In most cases, however, the PPPR Act does not provide an ongoing process for reviewing the detention of people who lack capacity. It is not designed to perform continuing review functions of this kind. Revised legislation should therefore provide what might be called “liberty safeguards”, including: a process to identify, authorise and monitor deprivations of liberty; procedural rules regulating such deprivations of liberty; a code of practice to guide providers and facilities when the safeguards apply; a clear and speedy authorisation process; and the powers and procedures of an independent monitoring body.

  • Research on people who lack capacity: Right 7(4) of the HDC Code, based on the common law doctrine of necessity, is also an inadequate legal basis for allowing participation in research by adults incapable of giving informed consent. Here too the MCA provides a useful legal model upon which New Zealand could base its own statutory protections where none currently exist. Sections 30 – 34 of the MCA provide lawful authority to carry out research on participants who lack capacity, where approved by a research ethics committee, as long as various safeguards are complied with. These safeguards relate both to the characteristics of the research and the participation of individuals in it. Among the numerous protections, the MCA provides that the research must have the potential to benefit the patient without imposing a burden that is disproportionate to that benefit, or be of wider benefit for persons affected by the same or a similar condition, and must impose no more than negligible risk to the patient.


  © 2020 Alison Douglass