The question of capacity

When a patient lacks the capacity to make decisions about their own healthcare, establishing the most appropriate course of action is often a difficult task. Dr Alan Doris, MPS Head of Professional Services (New Zealand), offers guidance

“Every person being of adult years and sound mind has the right to determine what shall be done with his own body.”¹

This succinct and influential judgment was given 100 years ago in New York and neatly summarises the central principle of consent to medical treatment in New Zealand and similar international jurisdictions.

As the population ages, the number of people living with reduced ability to manage their own affairs and make decisions about their healthcare is increasing. It is therefore more important than ever that there are good mechanisms to ensure that appropriate decisions about healthcare can be made despite a patient not being of “sound mind”.

In an urgent situation involving a patient who lacks mental capacity for any reason, and where there is no-one who is entitled to consent on behalf of the patient, treatment may still be provided. It is necessary in these circumstances that the treatment is in the patient’s best interests and, having taken reasonable steps to ascertain the views of the patient, it is considered that the treatment is consistent with what the patient would choose if competent.

If it is not possible to know what the patient’s views would be then the views of other people interested in the welfare of the patient, such as family members, who can be consulted, should be taken into account.²

In less acute situations there are other processes available to provide care for people who lack mental capacity. The Protection of Personal and Property Rights Act 1988 (PPPR Act) was enacted to protect and promote the personal and property rights of adults who lack competence (for example, due to a learning disability), or who lose competence with the progression of disorders such as dementia.

There are different legal tools available depending on whether decisions need to be made about health or property; whether capacity is partly or wholly lacking; and whether the issue is shortlasting or long-term. There have been a number of cases where uncertainty among health providers about the right decision-making processes to follow has led to complaint and sanction by the authorities and MPS is often contacted by members seeking advice in this area.

Enduring power of attorney

Under Part 9 of the PPPR Act, an individual (donor) can give authority to another person (attorney) or persons to make decisions for them. Such an enduring power of attorney (EPOA) can give the attorney the ability to manage a person’s property, make decisions about their care and welfare, or both.

An EPOA for personal care and welfare can effectively make the attorney a proxy decision-maker for the patient when capacity is lost, and the attorney, in general, has the same ability as the patient had before losing capacity. It is important to note, however, that an attorney cannot refuse to consent to any standard medical treatment or procedure to save the donor’s life or to prevent serious damage to the donor’s health.

Tightening up of the certification requirements for creating or activating an EPOA, clarification of the duties of attorneys and making it easier for some people to access the Family Court were introduced in 2007 and 2010, because of concerns that some attorneys may not be acting in the best interests of the donor.

An EPOA may provide the attorney with a general decision-making authority or may limit that authority to certain aspects of the donor’s care and welfare or property affairs. It is prudent for a donor to provide a copy of their EPOA for care and welfare to their doctor and ensure that it is kept up-to-date.

Whereas an EPOA for property can take effect at any time, if it is for care and welfare it only takes effect when the donor loses mental capacity. Further, in respect of any “significant matter” relating to the donor’s personal care and welfare, it is necessary that a relevant health professional carries out an assessment and completes the appropriate certificate confirming that capacity is lacking (or alternatively, the court has determined that the donor is mentally incapable).

A relevant health practitioner is one who is registered with their registration body; whose scope of practice enables him or her to assess a person’s mental capacity and who is competent to undertake an assessment of that kind. Such a health professional could be a medical practitioner in general scope of practice, although the donor can specify when creating an EPOA that certification of loss of capacity must be done by a practitioner with a particular scope of practice, for example a psychiatrist or clinical psychologist.

Although there is no prescribed method of assessing capacity for the purpose of this certificate, it is important that the practitioner carefully records the reasons for his or her opinion in case it is challenged, and completes the necessary form.

A donor who has made an enduring power of attorney is mentally incapable in relation to personal care and welfare if they:⁴

• lack the capacity — 
  • to make a decision about a matter relating to his or her personal care and welfare
  • to understand the nature of decisions about matters relating to his or her personal care and welfare 
  • to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions   
• lack the capacity to communicate decisions about matters relating to his or her personal care and welfare.

As a donor can specify what matters the attorney can make decisions about, it is very important to know exactly what is contained in the EPOA document.

There have been several cases where health providers have been criticised by the Health and Disability Commissioner for not adequately informing the donor who has an EPOA for care and welfare about treatment advice and decisions.⁵

Clause 4 of the Code of Health and Disability Consumers’ Rights defines “consumer” as including someone who is entitled to give consent on behalf of the consumer. It is therefore necessary that an attorney is provided with adequate information to make an informed choice with regards to treatment.

In one case several family members were interested in the care being provided to an elderly relative in a rest home. While a good deal of information was provided by staff to different members of the family the rest home was found in breach of Right 6 (right to be fully informed) because the family member who was the attorney had not been adequately informed.⁶

Personal orders and welfare guardianship

If a person has already lost, or never had, competence, then an application can be made to the Family Court for a personal order or the appointment of a welfare guardian or property manager for the person. An application is often made by a relative, though could also be made by a doctor, social worker or hospital manager.

A personal order can require specific living arrangements to be made for the person, or that the person receives particular medical treatment or services. In deciding whether to make a personal order, the Family Court must decide whether the person wholly or partly lacks mental capacity to make decisions about their care and welfare, or if they do have mental capacity, are unable to communicate.

A personal order can also appoint someone to manage an individual’s affairs. A personal order may last for up to 12 months or until the time when the matters in the order have been completed. Where there is urgency in providing medical treatment or protecting the individual’s property rights, an interim personal order can be made by the court.

Though personal orders are well-suited for discrete or time-limited issues, the Family Court may appoint a welfare guardian or property manager when long-term substitute decision-making is necessary. For a welfare guardian to be appointed the individual must wholly lack capacity; and appointing a welfare guardian must be the only satisfactory way to ensure that appropriate decisions about care and welfare are made. There is usually only one welfare guardian appointed.

A welfare guardian is able to consent or refuse consent in the same way that the patient would have done if he/she had capacity other than to consent to psychosurgery, ECT or medical experimentation, or to refuse any standard medical treatment or procedure intended to save the person’s life or prevent serious damage to their health.