Abstract
This article considers the hard-earned lessons that New Zealand might draw from developments in English mental capacity law that should inform a comprehensive review of New Zealand’s equivalent adult guardianship legislation, the Protection of Personal and Property Rights Act 1988. The United Nations Convention on the Rights of Persons with Disabilities, and the shift towards supported decision-making, requires State parties to rethink domestic laws and engage with the key concepts of this important human rights convention. The most significant development under the Mental Capacity Act (England and Wales) 2005 is the identification of the so-called ‘Bournewood gap’ and the realization that the common law doctrine of necessity provides inadequate procedural safeguards for people with impaired capacity who are unable to consent or object to their healthcare and living arrangements. In addition, the ‘best interests’ standard for decision-making in English law has evolved with a greater emphasis on support for the exercise of a person’s legal capacity into this standard. This article argues that these developments should influence reform of New Zealand’s mental capacity law.
Keywords
Introduction
The area of law in the United Kingdom now known as ‘mental capacity law’ 1 could be described as a hybrid discipline drawn from traditional medical law, distinct in its purpose but overlapping with mental health law, and combined with contemporary thinking in human rights law. This article considers the development of the common law concepts of necessity and best interests in English mental capacity law under the Mental Capacity Act 2005 (England and Wales) (MCA). It aims to highlight some hard-earned lessons that should inform a review of New Zealand’s equivalent adult guardianship legislation, the Protection of Personal and Property Rights Act 1988 (NZ) (PPPR Act). 2 There are major gaps in New Zealand’s legislation that need urgent attention, where English law provides models from which New Zealand could learn. Moreover, the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) requires State parties to rethink domestic laws and engage with its key concepts. 3 This important human rights convention offers new ways of thinking about capacity, particularly in its emphasis on supported decision-making as a more integrated approach to decision-making, and recognition of universal legal capacity. 4
The most significant development in English law from a New Zealand perspective has been the realization that the common law doctrine of necessity, the principle that necessary treatment and care can be provided to an incapacitated person if it is in their best interests, provides inadequate procedural safeguards for people with impaired capacity 5 to consent or object to their healthcare or living arrangements. The power to make medical welfare decisions in the best interests of an incapacitated adult was formally recognized by the House of Lords in Re F (Mental Patient: Sterilisation). 6 In this seminal case, the House of Lords authorized sterilization of a young intellectually impaired woman who was considered unable to consent due to her incapacity. Re F was a catalyst for subsequent development of both the common law doctrine of necessity, allowing the medical treatment of adults who lacked capacity to consent, and for the evolution of best interests as a standard for decision-making, subsequently reflected in the MCA. 7 This article therefore provides a necessarily broad analysis of these concurrent legal developments under the MCA and how they are likely to influence change in New Zealand’s mental capacity law. 8
Following Re F, the House of Lords’ subsequent decision in the Bournewood case 9 exposed the so-called ‘Bournewood gap’ in the legal protections for compliant people who lack the capacity to object to their detention. In 2004, the European Court of Human Rights (ECtHR) in HL v United Kingdom, 10 rejected the House of Lords' decision and its reliance on the common law doctrine of necessity as a justification for such detention. The ECtHR held that HL, who had been informally admitted to Bournewood hospital in England, had been deprived of his liberty when the staff exercised complete control over his freedom of movement. This deprivation of liberty was not ‘lawful’ and breached Article 5(1) of the European Convention on Human Rights (ECHR) as there was inadequate protection against the arbitrariness of his informal admission. Once deprived of his liberty, Article 5(4) of the ECHR required that he have guaranteed access to an independent review process concerning the lawfulness of his detention. 11 Subsequently, amendments were made to the MCA, including the implementation of the Deprivation of Liberty Safeguards (DoLS). 12 A broadened interpretation was then given to when these safeguards are required and their application has been extended to people with impaired capacity who are ‘detained’ in community settings by the the UK Supreme Court in the 2014 judgment known as Cheshire West. 13 At the same time, a House of Lords Select Committee decreed that the DoLS regime under the MCA was not fit for purpose and called for its substantial overhaul. These revisions of the MCA are ongoing. 14
In the same House of Lords’ decision that endorsed the doctrine of necessity, Re F (Mental Patient: Sterilisation), Lord Goff held that doctors must act in the best interests of an incapacitated patient. 15 English law has expanded the interpretation of the best interests principle at common law and subsequently codified a standard for assessing best interests in section 4 of the MCA. There are a number of criticisms of the best interests test, such as, it is ill-defined and existing clinical guidance is insufficient; 16 and, the standard is applied inconsistently by the courts due to uncertainty as to the weighting to be afforded to the person’s ‘wishes and feelings’ when compared with other aspects of the standard. 17 Moreover, the best interests test does not fit with the ‘will and preferences’ paradigm and has been rejected by the Committee on the Rights of Persons with Disabilities. 18 This article argues that despite these criticisms, the best interests standard provides a defensible starting point for supported and substitute decision-making regimes to coexist and incorporates elements of supported decision-making consistent with the spirit of the CRPD. This aspect of English law has moved ahead in leaps and bounds by comparison with New Zealand’s law that has neither statutory guidance, nor a substantial body of case law on the meaning of a person’s ‘best interests’ or how the ‘will and preferences’ of a person with impaired capacity for decision-making should be determined when making that assessment. In view of the shared common law history between New Zealand and England, and the ongoing reform of the MCA, English law provides a particularly useful comparator with New Zealand’s mental capacity law. As Mary Donnelly says, ‘even without amendment, the MCA retains a degree of revolutionary potential and…this could (and should) be further developed’. 19 Both the concepts of ‘necessity’ and ‘best interests’ provide fertile ground for New Zealand law where there has been little development or articulation of these concepts.
This article first places these mental capacity law concepts within a human rights and cultural context appropriate to New Zealand law. This is followed by a critique of New Zealand’s mental capacity law, within which the common law doctrine of necessity is expressed mainly as an exception to the principle of informed consent in Right 7(4) of the Code of Health and Disability Services Consumers’ Rights (Code of Rights). 20 It then identifies the existence of the ‘Bournewood gap’ in the New Zealand context and the lack of an articulated ‘best interests’ standard governing support for legal capacity where a person has impaired capacity to make decisions. The article concludes by calling for reform of New Zealand law by filling these legal gaps and drawing on the English experience under the MCA.
International human rights treaties and the cultural dimension
In common with the United Kingdom, New Zealand is a party to the main international human rights instruments relevant to mental capacity law. These include those instruments that affirm liberty and the right not to be arbitrarily detained guaranteed by the International Covenant on Civil and Political Rights 1966 (ICCPR) 21 and the UN CRPD 2006. 22 In the United Kingdom, the ECHR has been adopted into domestic law under the Human Rights Act 1998. 23 Substantially, the same rights are protected by all three of these human rights instruments, with some differences. 24 Although New Zealand is not a party to the ECHR, Strasbourg jurisprudence from the ECtHR is likely to be influential in New Zealand courts, because its interpretations are enforced in the domestic courts in the English legal system upon which the New Zealand legal system has traditionally drawn. These rights are also expressly incorporated into the New Zealand law via section 22 of the New Zealand Bill of Rights Act 1990 (NZBORA), as well as having long been protected by the common law. A further aspect of the human rights framework in New Zealand is the national monitoring mechanisms for places of detention carried out by a number of government agencies. 25 A recent report has identified gaps in monitoring the deprivation of liberty of people in aged care and disability residencies and facilities. 26
Article 12 of the CRPD has added new impetus towards understanding legal capacity and the concept of supported decision-making. 27 In common with the English (and Welsh) law, New Zealand faces the challenge of providing a workable law that ensures people with disabilities enjoy legal capacity on an equal basis in all aspects of life. 28 Revised laws need to provide access for persons with disabilities to the support they require to make effective decisions or to take actions whenever possible (generally referred to as ‘supported decision-making’ in this context), while retaining appropriate and effective safeguards to prevent abuse, in accordance with international human rights law. 29 These safeguards include taking measures to ‘respect the rights, will and preferences of the person’. 30 A common criticism of the support paradigm is that it offers few tools under Article 12(4) to mitigate harmful decisions and does not deal with the ‘hard cases’, where there is the potential for undue influence, exploitation and abuse by supporters of the person with impaired capacity. 31 While a supported decision-making regime may be less paternalistic, it runs the risk of offering little protection against harm. 32
In New Zealand, there is an added cultural dimension to the development of law and policy reflected in the commitment to the Treaty of Waitangi. 33 The Treaty has been referred to as the ‘Māori Magna Carta’ 34 because it recognizes the obligations and the relationship between the Crown and Māori as tangata whenua (New Zealand’s indigenous people) and upholds a set of rights that Māori ought reasonably to expect to exercise in modern times. 35 As a consequence, the centrality and importance of Māori beliefs and values expressed through tikanga Māori (customary values and practices of Māori) 36 has received growing recognition in modern New Zealand law. 37 Diversity, and the impact of a person’s cultural background on the decision-making process, is part of the discourse on relational autonomy. 38 In this regard, the positive obligation in the CRPD to recognize supportive relationships and participation by people with impaired capacity in decisions that affect them, 39 has synergies with tikanga Māori. One of the core values embedded within tikanga that aligns with the concept of supported decision-making is the process of engagement with Māori through whakawhanaungatanga, recognizing the supportive role of the extended family and relating well to others. 40 While the principles of tikanga Māori have been recognized within revised legislation for the protection of vulnerable children, this has not been the case for vulnerable adults under the adult guardianship law. 41 New Zealand has a unique opportunity to enrich these developments internationally by demonstrating its commitment to, and understanding of, cultural influences in developing the law and clinical practice. 42
New Zealand’s mental capacity law
In New Zealand, the law governing issues of capacity and decision-making are largely found in two distinct pieces of legislation. The first is the PPPR Act, the guardianship law for adults aged 18 or over who lack capacity to make financial, care and welfare decisions. The second is the Health and Disability Commissioner Act 1994, which in turn authorizes the making of a legally enforceable Code, the Code of Health and Disability Services Consumers’ Rights (Code of Rights). 43 The PPPR Act was enacted in 1988, the year of the Report of the renowned Cartwright Inquiry (The Cartwright Report), and predates significant developments in the law relating to patients’ rights. 44 The Cartwright Report led to the enactment of the Health and Disability Commissioner Act 1994 and the issue of its subordinate Code of Rights. The Code provides that healthcare services may only be provided to a healthcare consumer if that consumer (or another person who is legally entitled to consent on their behalf) makes an informed choice or gives informed consent. However, the common law doctrine of necessity, that provides a justification for providing treatment without consent where a person lacks capacity, is expressly incorporated into the Code as an exception to that usual right to give consent. 45
New Zealand also has orthodox mental health legislation that can be used to authorize a person’s psychiatric assessment and treatment, including their detention in a psychiatric facility. 46 While the mental health legislation and the PPPR Act are overlapping regimes, they serve different purposes and operate differently. 47 Currently, an order for a person’s compulsory treatment under the mental health legislation will trump any arrangements under the adult guardianship (or capacity) legislation. Under the mental health legislation, a person can be treated against their stated preferences if they meet the relevant criteria of ‘mental disorder’ and threat of harm, whether or not they have the capacity to refuse psychiatric treatment (as is generally the position in England). 48 Incapacity to consent to treatment is not required for a person to be subject to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ), yet some people are subject to both laws in the course of receiving healthcare or consideration of their living arrangements. The MCA functional test for capacity, based on the person’s inability to understand, retain, use or weigh or communicate the relevant information in relation to a specific decision (without the diagnostic threshold), 49 has implicitly been accepted in New Zealand case law 50 and has been adopted as part of a threshold test in compulsory treatment legislation for substance addiction. 51
PPPR Act 1988
The PPPR Act has played a key role for nearly 30 years by recognizing the vulnerability of adults with impaired capacity and the concern of the state to ‘protect and promote’ the rights of those who cannot manage their own affairs. 52 The PPPR Act received express approval from the Law Commission for England and Wales in its 1991 consultation paper, Mentally Incapacitated Adults and Decision-making: An Overview, which assessed the need for reform in England and eventually led to the enactment of the MCA 2005 (England and Wales). 53 Similarly, a Scottish law reformer in the 1990s regarded the New Zealand legislation as influential in the build-up to the Adults with Incapacity Act 2000 (Scotland). 54 Now, the tables have turned and the New Zealand legislation is in need of review. 55 The range of people to whom the PPPR Act applies and the social environment in which it operates are now very different from when the legislation was passed in 1988, at the peak of the era of deinstitutionalization of patients in large psychiatric facilities. At that time, its main purpose was to remove people with learning disabilities from the domain of mental health law and to shift their management, if needed, to an adult guardianship regime. 56
The PPPR Act created a new and expanded jurisdiction for New Zealand’s Family Court, relieving the High Court of a significant part of its first instance jurisdiction for people who lack capacity. Although rarely used, the High Court retained its inherent parens patriae ‘safety net’ jurisdiction in relation to vulnerable adults to provide a remedy beyond the scope of the statutory scheme. 57 The PPPR Act permits a person with capacity to appoint an Enduring Power of Attorney (EPOA), to make financial, health and welfare decisions should they later lose their capacity 58 ; and it confers statutory jurisdiction on the Family Court to make substitute decisions concerning the welfare and property of people lacking capacity or to appoint a welfare guardian or property manager (a Deputy under the MCA) to make decisions on their behalf. 59
The conceptual underpinnings of ‘capacity’ and ‘best interests’ under the PPPR Act and the MCA therefore have many similarities. Both provide a legislative scheme for people with impaired decision-making capacity, in respect of financial, care and welfare decisions. 60 Both codify aspects of the common law and seek to balance the tension between the autonomy and protection of individuals subject to their jurisdiction. Both are based on similar principles of the least restrictive intervention and encouraging a person's participation in decisions that affect them. 61 They have a similar ‘bright line’ functional test for capacity, underpinned by the ethical notion of autonomy. However, unlike the MCA, the PPPR Act does not have an additional ‘diagnostic’ element to the functional capacity test or causation requirement 62 and so is relieved of any criticism that such a threshold could be viewed as discriminatory towards people with disabilities under the CRPD.
There have been few cases in New Zealand where a person’s capacity (and therefore the jurisdiction of the Court to intervene) has been contested in proceedings under the PPPR Act, so there is less case law interpreting the concept. 63 There are also multiple tests for capacity in the PPPR Act, which makes it complex legislation to follow and apply. 64 For example, a distinction is made in the legal tests between ‘wholly’ lacking capacity in respect of the appointment of a welfare guardian (Deputy) and ‘partly’ lacking capacity for a ‘one-off’ personal order made by the Court. 65 The lower threshold for the latter test has frequently been used to make significant decisions in respect of living arrangements of people subject to the Act (and corresponding deprivation of liberty), such as decisions to place people in a secure residential care facility, sometimes over their vehement objections. 66
The PPPR Act (implicitly) and the MCA (more explicitly) assume a role for supported decision-making as understood under the CRPD. 67 They part company, however, on the MCA’s overriding decision-making principle of the person’s best interests. 68 By comparison with the MCA, best interests is neither an express principle nor is it defined in the PPPR Act, even though the welfare and best interests of the person subject to the Act are the ‘paramount consideration’ for decision-makers. 69 Instead, the PPPR Act’s primary objectives are to make the least restrictive intervention and to maximize the person’s capacity to participate in decision-making. 70 In one of the earlier cases that examined the PPPR Act, the ‘welfare and best interests’ were described as ‘part of a hidden rather than a stated objective’. 71 However, there has been no corresponding development of New Zealand common law or codification of the standard upon which decision-makers assess a person’s best interests or how these interests should be identified, which would be akin to the principles now included in the MCA. 72 Nevertheless, in administering the Act, New Zealand courts have found that reliance on ‘best interests’ principles is required, forcing them to work out the matter without statutory guidance.
The Code of Health and Disability Services Consumers’ Rights
The Code of Rights is now a central part of New Zealand’s health and disability regulatory framework and the second main statutory imprimatur for mental capacity law in New Zealand. The provision of the Code is said to have transformed New Zealand’s medico-legal environment from an ‘unfortunate’ to a ‘fortunate’ experiment by providing a Health and Disability Commissioner with powers of investigation into complaints, thereby raising awareness of patients’ rights. 73 The competence of a consumer (patient) to make an informed choice, and give or refuse informed consent to healthcare procedures or disability services, is a key component to ensuring that the rights of consumers are protected under this Code. The Code does not define ‘competence’ 74 or codify a legal test for competence to consent to medical treatment or healthcare. Nor is there any formal requirement or procedure specified for assessing a person’s competence.
In common with the PPPR Act, it recognizes the common law presumption of competence (Right 7(2)) and that those with diminished capacity should participate as much as possible in decisions regarding their healthcare (Right 7(3)). The discussion regarding the presumption of competence has tended to proceed without consideration of a clinician’s duty of care towards a patient, particularly the circumstances in which there is a duty to assess the patient’s competence.
75
Nevertheless, the Health and Disability Commissioner has found a General Practitioner to be in breach of the Code for failing to assess the capacity of a woman with Huntington’s disease who was living in isolation and squalor in her own home over a 10-year period.
76
The Commissioner opined that Dr C had failed to provide appropriate care and support for her patient:
77
Given the known trajectory of patients with HD [Huntingdon’s Disease] and the probability that Mrs A would at some stage lose competence, Dr C’s failure to assess Mrs A’s competence to make the relevant decision was suboptimal care and unacceptable.
The interface between the PPPR Act and the Code of Rights is not well understood. The Health and Disability Commissioner does not, for example, have any oversight of the implementation or monitoring of court orders under the PPPR Act. The Commissioner’s opinions are limited to breaches of the Code. 80 The investigation of complaints is a reactive, not a proactive, process, and does not provide prospective mechanisms for those who lack capacity and are especially vulnerable in the health system. Moreover, the requirement that the Commissioner investigate a complaint has a gatekeeping effect, as few complaints are investigated in fact and even fewer result in further action through the compensation tribunal or disciplinary processes. 81 One of the consequences of New Zealand’s ‘no-fault’ accident compensation scheme and its statutory bar against suing health professionals for medical negligence causing ‘personal injuries’ is the absence of litigation and associated case law that might contest and clarify capacity to consent or refuse medical treatment. 82 Indeed, the telos of the Health and Disability Commissioner is suggested to be more about improving health services rather than policing the duties of health professionals and holding them accountable. 83
It is within the context of these informed consent rights that the doctrine of necessity under the common law is expressed as an exception in Right 7(4) of the Code of Rights. 84 While some refinements have been added, including express requirements to consider the patient’s known prior views before providing health or disability services and to consult other persons where possible. Provided those requirements are met, the text of Right 7(4), like the common law doctrine, provides both a justification for the provision of health and disability services without consent, where the person lacks capacity, and a defence to Code liability (under the Code) for the health professional who decides to provide treatment. 85
There is however no guaranteed process for reviewing the need for detention of people who may be detained in a range of healthcare and living environments, and who are not subject to involuntary treatment under the mental health legislation, 86 thereby maintaining the Bournewood gap. 87 In contrast, this gap has been filled in England, albeit controversially, by enactment of the DoLS regime and ongoing reform is under consideration by the Law Commission for England and Wales (Law Commission). 88
In addition, New Zealand’s legal framework does not provide statutory guidance on the meaning of a person’s ‘best interests’, an essential component of implementing the necessary safeguards, or how to assess these interests in difficult clinical situations. Nor is there guidance about how these interests should be determined in accordance with the person’s ‘will and preferences’ and there is no consideration of how supported decision-making might be implemented to better reflect the principles of the CRPD.
Against this background to the New Zealand context, the following considers the sufficiency of the common law doctrine of necessity as a legal basis for protecting the interests of people with impaired capacity, and the English response to the Bournewood gap.
Whither the common law doctrine of necessity?
The House of Lords’ decision in Re F 89 was a turning point in the advent of the declaratory jurisdiction in England and recognized that the common law doctrine of necessity allowed the medical treatment of adults who lacked capacity provided it was in their best interests. 90 The scope of the doctrine is broad and is not confined to emergency situatons. As described by Lord Goff in Re F, the principle is ‘one of necessity not emergency’. 91 This doctrine is based on the ‘need’ for the patient to receive treatment, in their own ‘best’ interests, when they are (temporarily or permanently) disabled from giving consent. 92 This jurisdiction was first limited to declarations of lawfulness related to medical treatment, but later was extended to non-medical issues as well, such as a person’s residence and contact with others. 93
The resulting body of law is described by Fennell as one of the most dramatic manifestations of judicial creativity in England in recent years. 94 The doctrine was subsequently embedded in the MCA as a general defence for health professionals carrying out actions in connection with the care and treatment of people who lack capacity and for the proportional use of restraint. 95 The ‘best interests’ standard that came to be used in healthcare was central to the MCA. 96 Substantial limits were later placed on the relatively unfettered discretion to make decisions for people with impaired capacity regarding restrictions on their liberty. Moreover, the previous assumption that decisions about the effective detention of a person who lacked capacity could simply be made in their best interests by healthcare professionals without any independent oversight of those decisions being required, was roundly rejected by the ECtHR. 97
There has been ongoing consideration of the matter by the Law Commission for England and Wales. The key concern is not whether, but how, DoLS are to be provided and how wide the revised scheme should extend. 98 A particular challenge in the English context has been to separate the ‘neutral’ question of deprivation of liberty from the ‘evaluative’ question of the standard of care or quality of living arrangements provided. 99 The decision of Cheshire West concerned three individuals who had Down syndrome and learning disabilities. Two of them lived in disability residences and one in a foster home. The majority of the Supreme Court concluded that these living arrangements constituted a deprivation of liberty under the MCA, so that it covered many more people in care homes and hospitals, as well as in community settings such as foster care placements, than had previously been understood. The ‘acid test’ for when safeguards are needed is met when an individual is under the continuous supervision and control of those caring for them and is not free to leave. Whether a deprivation of liberty is in the person’s best interests, or whether the person shows ‘tacit acceptance’ of the arrangements, is considered irrelevant. As Lady Hale, who gave the leading judgment for the UK Supreme Court in Cheshire West, said, ‘A gilded cage is still a cage’. 100
The English response to its human rights obligations, in enacting the DoLS regime, could be seen as an excessive response to the problem of providing a mechanism to safeguard the rights and interests of people with impaired capacity. In terms of proportionality, a New Zealand judge has noted ‘A sledgehammer must not be used to crack a nut’. 101 Notably, the ‘best interests requirement’ in the revised ‘liberty protection safeguards’ as proposed by the Law Commission, will recognize that this assessment must include whether the arrangements are necessary and a proportionate response to the deprivation of liberty. 102 There are aspects of the English legislation (both the MCA and the Mental Health Act) specific to its legal framework which would not apply in New Zealand. 103 There is also the different population size and different cultural context in which the English law is formed, and the need for the United Kingdom to comply strictly with the ECHR. Nonetheless, England has filled the Bournewood gap and other comparable jurisdictions have taken steps in that direction. 104
Ultimately, contemporary thinking in international human rights law has radically altered the extent to which the common law doctrine of necessity and the test of ‘best interests’ can provide lawful authority for deprivation of liberty in a broad range of healthcare and disability settings. The common law doctrine, as expressed in Right 7(4) of the New Zealand Code of Rights, is an inadequate basis for this kind of detention, particularly on an ongoing basis, and reliance on this provision for this purpose is being called into question.
Identifying the ‘Bournewood gap’ in New Zealand law
In view of these significant developments that almost paralysed the operation of these safeguards under mental capacity law in England, it is surprising how little attention has been given to this issue in New Zealand, especially as it applies to the detention of people who lack capacity but are not under the mental health legislation. 105 The Bournewood gap and ongoing developments in England raise important questions for New Zealand about the positive obligations on the state to provide oversight and legal protections for vulnerable persons who lack capacity and are effectively detained. The doctrine of necessity as justifying interventions that would otherwise constitute the tort of trespass or the crime of battery is well recognized in New Zealand law, based largely on the English precedents. 106 Habeas corpus has traditionally been available to secure the release of a person confined by any person or statutory body. 107 More recently, there have been several instances where (unsuccessful) applications for a writ of habeas corpus have been sought for adults with impaired capacity, based on allegations that people subject to care and welfare orders under the PPPR Act have been unlawfully deprived of their liberty by their appointed welfare guardian. 108 While the Family Court, not the High Court, is often the proper forum for these cases, they may indicate that there is not an adequate process under the PPPR Act itself to identify and monitor such deprivations of liberty. 109
In New Zealand, there has been no equivalent incorporation of the necessity ‘defence’ within the guardianship legislation itself, as is found in sections 5 and 6 of the MCA that embrace the doctrine of necessity and the reasonable and proportionate use of restraint. 110 Nor does the PPPR Act provide coercive powers to implement court orders made under it. 111 There are cases where the Family Court has creatively used supplementary orders as a means of enforcing the main order, but the extent to which this provision can be used as a method of enforcement, or to sanction the use of reasonable restraint, is unclear and unsatisfactory. 112 Under the current legal framework, the Family Court cannot provide adequate monitoring and ongoing oversight of the use of restraint and detention for people with impaired capacity. As a result, ‘effective and unqualified control’ is left to health professionals and others as to when and on what basis a person should be detained: the same concern that Lord Steyn identified in the House of Lords in Bournewood. 113 Nor has there been exploration by the New Zealand courts, or in the opinions of the Health and Disability Commissioner, of the extent to which the doctrine of necessity in this context, expressed as an exception to the ‘right’ to give informed consent, can be relied upon as legal authority for the provision of care or living arrangements on an ongoing basis, where no Court orders have been obtained.
Right 7(4) of the Code of Rights
In New Zealand law, the common law doctrine of necessity is largely recognized in Right 7(4) of the Code of Rights. If a person is assessed as lacking capacity and there is no legally authorized decision-maker, this right, more accurately described as a ‘right override’, provides a legal justification for providing health and disability services without consent, subject to certain requirements.
Right 7(4) provides: Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where – It is in the best interests of the consumer; and Reasonable steps have been taken to ascertain the views of the consumer; and Either, – If the consumer’s views have been ascertained, and having regard to those views, the provider believes, on reasonable grounds, that the provision of the services is consistent with the informed choice the consumer would make if he or she were competent; or If the consumer’s views have not been ascertained, the provider takes into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise the provider.
The procedure in Right 7(4) requires a provider to take reasonable steps to ascertain the views of the person and consider whether there are reasonable grounds to believe that the provision of services would be consistent with the informed choice the person would make if they were competent. If the person’s views have not (or cannot) been ascertained, the provider should take into account the views of other suitable persons who are interested in the welfare of the consumer and who are available to advise. Ultimately, the decision is based on ‘clinical’ best interests, as assessed by the health professional or provider institution, such as a hospital or residential care facility. There is a substituted judgment element in Right 7(4) as the provider must reach a decision that is ‘consistent with’ the informed choice that the person would make if they were competent to do so. 114 However, Right 7(4) stops short of requiring the provider to act on the ‘views’ of the person, once reasonable efforts have been made to ascertain them. Nor does it specify what the provider should do when there are conflicting views, or views they disagree with, or how they should weigh the various views to reach a decision. Ultimately, Right 7(4)(a) suggests that the person’s best interests are the main factor in reaching a decision. It remains a broad provision and allows for decisions to be made in situations where it may be impossible to ascertain the person’s ‘views’. Therefore a provider could attempt to ascertain the views of the person and others, but decide that these views were contrary to the person’s best interests, and not follow them. 115
On its face, Right 7(4) appears to merge both a best interests assessment under section 4 of the MCA with a defence to the decision-maker under section 5 of the MCA, if the procedural steps have been followed. The major difference, however, is that, unlike the best interests assessment under the MCA, there is no equivalent scrutiny of the decision-maker, as occurs when the matter is litigated under English law. There is a corresponding lack of transparency as to when and how the doctrine of necessity is relied upon in a wide range of situations. Read in conjunction with Right 7(1), Right 7(4) has the effect of ensuring that the provision of treatment without consent will not infringe the Code of Rights in specified circumstances, whether or not some statutory or common law justification is also applicable. 116 Peter Skegg suggests that the role of Right 7(4) has sometimes been exaggerated, and sometimes underrated. 117 Strictly speaking, Right 7(4) only applies for the purpose of Code liability and does not provide an all-purpose justification for treatment without consent or a defence to criminal or tortious liability. 118 As with the common law doctrine, Right 7(4) is a pragmatic response to the need for everyday healthcare decision-making for people unable to make decisions that are legally effective. The scope of its application is intended to be narrow. It relies largely upon the notion of ‘clinical best interests’ as judged by the healthcare provider. 119 As such, it provides an unsatisfactory standard for decision-making in a wide range of circumstances for people with impaired capacity. The use of Right 7(4) is most appropriate where decisions need to be made in the short-term. There remains, however, considerable uncertainty about relying upon it for ongoing decision-making regarding longer-term care and treatment.
Director of Proceedings v. Taikura Trust
The closest reported example to date that illustrates the Bournewood gap in New Zealand concerned the informal detention of a woman in a dementia unit that arose as a complaint under the Code of Rights. In Taikura Trust, 120 Ms A, a 43-year-old woman with a complex history of mental illness and alcohol abuse, was held in a secure dementia unit for almost a year, against her will, without legal authority. Although initially she had been admitted to hospital appropriately, having been assessed as not having the capacity to make decisions relating to her care and welfare, the hospital incorrectly assumed that a personal order under the PPPR Act had been obtained from the Court that covered her ongoing care. Despite expressing a wish for a more suitable placement, Ms A was effectively detained for over a year in this dementia unit, against her wishes and contrary to her needs. Moreover, despite her capacity changing over time, she was not reassessed. The Health and Disability Commissioner found that there was a failure to provide appropriate care to Ms A under Right 4 of the Code. Regardless of whether there was a court order placing Ms A in the dementia unit, it was still a breach of her right to receive proper care for the healthcare providers not to take the steps to reassess her capacity and address her inappropriate placement in the dementia unit. 121
The case went to the Human Rights Review Tribunal, where the two Auckland service providers who were responsible agreed to pay compensation to Ms A’s estate (as she had subsequently died after her release from unlawful detention). 122 Right 7(4) of the Code was not specifically relied upon to justify Ms A’s ongoing detention in Taikura Trust. Ms A’s initial admission to hospital for care was perhaps defensible on that basis, but her ongoing detention was not after she had regained her capacity. Moreover, the principle of necessity imposed a clear obligation on the staff to ensure the provision of secure care continued to be in her best interests, which was not met. Furthermore, even when Ms A objected to her longer-term care, no independent review process was activated, particularly none involving a court or tribunal. Obtaining a retrospective PPPR Act order (if feasible) would not have addressed the problem of a lack of safeguards that were intended to operate in advance of the person’s detention or, in this case, Ms A’s ongoing detention. 123
The Commissioner only has retrospective, not prospective, powers to act on complaints, and therefore is not in a position to assess whether a person is deprived of their liberty, and there is no statutory guidance (or advocate available to assist) on how a person’s best interests is to be assessed in these circumstances. 124 There will be many instances where the lawfulness of a person’s initial detention in care would be clearly justified under the principle of necessity, but the original reasons for their detention may cease to be valid if their condition changes. Their ongoing detention may then become a disproportionate response to the situation and a breach of section 22 of the NZBORA 1990. 125 Moreover, under New Zealand law, the precise situations in which providers may rely on Right 7(4), or must instead seek a court order, are not clear. In practice, it seems that providers tend not to risk relying on Right 7(4) alone in more contentious cases, such as where a family dispute exists about where to place an older family member, where the person strenuously objects to the proposed arrangements (particularly their admission to a secure dementia unit) or where there is no obvious family member or friend available who is concerned about the person’s long-term interests. 126 In those cases, more formal legal arrangements may be sought. As a result, providers’ conduct in this regard may be inconsistent and idiosyncratic. 127
The Bournewood gap exists in New Zealand because there are no specific legal safeguards that apply to these situations of detention. Reliance on necessity and best interests in these situations was rejected by the ECtHR in HL v. United Kingdom as an inadequate basis for the ongoing detention or monitoring of situations where people are deprived of their liberty. There is a broad range of settings where the State is involved with the provision of health and social care to people who lack capacity and are unable to consent or object to their care and living arrangements. In these circumstances, the people concerned are under the continuous supervision and control of those who care for them and are not free to leave. Therefore, they meet the ‘acid test’ for when safeguards are needed as described by Lady Hale in Cheshire West. 128 In New Zealand, neither the court procedures currently available under the PPPR Act (personal orders or the appointment of a welfare guardian) nor Right 7(4) of the Code are designed to be effective in identifying deprivations of liberty in advance of a person’s detention. Nor do they provide ongoing monitoring of a person’s detention to ensure that such decisions are the least restrictive option and are made in their best interests. 129
This article now turns to consider how English cases under the MCA have developed the notion of ‘best interests’ as the relevant standard, compared with the undeveloped state of this notion in New Zealand, with a few limited exceptions in case law.
Best interests as a standard for decision-making
Although Re F confirmed that the notion of ‘best interests’ was a guide to decision-making where a person reached the threshold of incapacity, the principle remained elusive without a conceptual framework. 130 The MCA’s statutory ‘best interests’ standard applies where a person takes actions or decisions on behalf of another person who lacks capacity and is ‘unable to make a decision’, as defined in sections 2 and 3 of the MCA. A checklist in section 4 provides a process for assessing the person’s best interests (the best interests assessment) and sets out matters that the decision-maker must consider taking into account ‘a wide range of ethical, social, moral, emotional and welfare considerations’. 131 It is a hybrid standard: the overall question of a person’s best interests is an objective one. Relevant matters include the aim that the person with impaired capacity should participate in determining their best interests, recognizing the person’s present and past wishes and feelings and acknowledging the beliefs and values that would likely have influenced their decision if they had capacity. Notably, section 4 does not define best interests but rather provides a procedural framework for making the decision. Thus, two best interests assessors may embark upon an assessment and reach two different conclusions as to what is considered to be in the best interests of that person. 132
An important feature of best interests under the MCA is that, even though the person may lack capacity (in law), ‘so far as reasonably practicable’, they should be permitted and encouraged to participate ‘as fully as possible in any act done and any decision affecting them’ and that their ‘wishes and feelings’ must be taken into account.
133
This approach recognizes that even where a person does not have capacity to make an effective decision, they may play an important part in the decision-making process. As Herring observes:
134
…that does not mean their views and feelings count for nothing. Indeed there is recognition in section 4 that even if it is not possible for P (the person) to make a decision, they should still be involved to a reasonable extent in the decision-making process and their views should be listened to. …in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical, but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view on what his attitude would be. (Emphasis added)
Best interests under the MCA has received three main criticisms. 140 First, in clinical practice, there is a risk of conflation of ‘medical’ or ‘clinical’ best interests with the evaluation exercise required under section 4. 141 Where a patient’s wishes are unknown, unclear or incompatible with a doctor’s preferred judgment, doctors are likely to assess best interests based on a clinical assessment of them. Therefore, the MCA has not been able to shed the medical paternalism that is inherent in the best interests’ assessment process.
This leads to the second criticism, namely that there is no hierarchy of values the decision-maker must take into account in the best interests checklist. To make the best interests standard more compliant with the CRPD, the Law Commission initially consulted on a proposal to include a presumption that the person’s wishes and feelings will be followed. 142 In Wye Valley NHS Trust v. Mr B, Peter Jackson J defended the existing provision in the MCA and questioned this proposal. 143 Rather than a presumption, the draft Bill to amend the MCA proposes a small, but subtle, shift by placing supported decision-making at the beginning of the decision-making process. It would require the decision-maker to ‘first of all’ ascertain, as far as reasonably practicable, the person’s wishes and feelings, and then the decision-maker ‘must give particular weight to any wishes and feelings ascertained’. 144
The third main criticism of best interests under the MCA concerns whether it goes far enough in adhering to the ‘support paradigm’ of the CRPD, as interpreted by the UN Committee. 145 The Committee has even suggested that the best interests principle is not a safeguard in accordance with Article 12(4) and ‘the best interpretation of will and preference must replace the best interests determination’. 146 The best interests framework has been rejected by those who strongly emphasize the value of supported decision-making that is given priority in the CRPD, however, the move to increase inclusion of the person subject to the decision can be viewed as an ‘appropriate measure’ under Article 12(3) of the CRPD to ascertain the person’s will and preferences under Article 12(4). The interpretation of Article 12 that the will and preferences of an individual should always be determinative of any decision taken in their name has also been rejected in a recent decision by the ECHR. 147
The strength of the best interests framework for decision-making lies in the transparency required in reaching a decision and the reality that there will be situations where, even following significant efforts, a person’s will and preferences cannot be determined. Perhaps more controversial is the extent to which the best interests standard in the MCA is based on an objective analysis of what is believed to be in the best interests of the individual concerned, rather than being based upon the person’s own will and preferences. 148
Best interests and supported decision-making
The English formulation of best interests in the MCA has thus incorporated elements of supported decision-making (and plans to add more), but there is no equivalent in New Zealand legislation. This best interests assessment is potentially compatible with supported decision-making when this concept is viewed as support for the exercise of legal capacity, which is broader than simply supporting people to take their own decisions and can apply to decision-making for people who cannot make decisions for themselves. The best interests framework also recognizes that, even if a person is unable to make a legally binding decision with support, their likely will and preferences remain central to the decision-making process.
A person should not be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success. 149 There are few cases in the Court of Protection (COP) where this principle has been satisfied or clearly expressed in the judgment. Nonetheless, English case law demonstrates how supported decision-making can be applied within the existing legal framework of the MCA, particularly at the beginning of the decision-making process. A clear distinction is made between the concepts of capacity and best interests. In CC v. KK, 150 a local authority failed to prove that an elderly woman in its care with Parkinson’s disease did not have capacity to make decisions about her residence and care as they had not provided her with detailed options, including what support might be available at home, to allow a fair assessment of her capacity to weigh up those options. 151 Baker J held that when evaluating capacity there was a danger that professionals, including judges, might objectively conflate a capacity assessment with the best interests analysis and conclude that the person under review, KK, should attach greater weight to the physical security and comfort of a residential home and less importance to the emotional security and comfort derived from being in her own home. 152
Moreover, there are strong dicta from the COP emphasizing that where a person lacks capacity in law, they do not lose their right to participate in decision-making that affects them. To this end, the best interests standard by which the decision-maker is to act requires them to support the person and take into account their will and preferences in reaching a decision. In Re M,
153
for example, the Court held that M lacked capacity to decide where to live but that it was in her best interests, despite very significant care needs that were being successfully provided for in a care home, to return to her home with a care package. Although finding that M lacked capacity, the court also carefully considered M’s wishes (and her partner’s views), plus the risks to her health of a return home compared to the risks of staying at the care home given her threats to kill herself. Emphasis was placed on M’s own assessment of her quality of life.
154
Peter Jackson J said:
155
The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In M’s case there is little to be said for a solution that attempts without any guarantees of success to preserve for her a daily life without meaning or happiness which she, with some justification, regards as insupportable. (Emphasis added)
The ‘best interests’ standard, by whatever name, can provide a transparent basis for decision-making when a person is unable to fully exercise their legal capacity to make decisions.
Best interests in New Zealand law
New Zealand’s legal framework provides no such assessment process or approach to how a person’s best interests are to be interpreted when decisions are made by others. The PPPR Act refers to decisions being made in a person’s ‘welfare and best interests’, 157 and, under Right 7(4) of the HDC Code, decisions can be made in a person’s ‘best interests’. The New Zealand High Court has previously cautioned against adopting an overly legalistic approach when applying the PPPR Act’s express principles – to make the least restrictive intervention and maximize the person’s participation – to ensure that the welfare and best interests of the person are also taken into account, even if this matter is not expressed as a guiding principle of the Act. 158
Promoting the ‘best interests’ of people with impaired capacity is not a primary objective of the PPPR Act, although it is often assumed that it is. It is not stated as a key statutory principle governing the exercise of the court’s jurisdiction, nor as the basis for the appointment of a decision-maker. It is only once a decision-maker has been appointed that the welfare and best interests of a person who lacks capacity become paramount considerations in making decisions on that person’s behalf. Despite this, there is no guidance on how these best interests decisions are to be made in light of a person’s ‘will and preferences’, whether previously expressed or not. In some sections of the PPPR Act, best interests is given priority. For example, in section 18(3) ‘the first and paramount consideration of a welfare guardian should be the promotion and protection of the welfare and best interests of the person for whom the welfare guardian is acting’. 159
In the past, the ‘welfare and best interests’ of the person have been referred to as the ‘welfare principle’.
160
As with cases applying the English common law best interests test, a number of the early cases under the PPPR Act were concerned with sterilization or orders to terminate a woman’s pregnancy. In KR v. MR,
161
where a personal order was sought to terminate the pregnancy of a disabled woman, Miller J considered this principle as a ‘secondary objective’ yet it:
162
….is susceptible to prevailing social norms and the personal values of the decision-maker. It is not an objective test and its workability depends on informed fact finding and the wise exercise of discretion.… It is in this area of fine distinction that meaning must be found to find the difference between an intervention to the least extent possible, which will enable capacity, and what is in the best interests and welfare of the patient.
Conclusion
As with similar countries, New Zealand’s adult guardianship regime is likely to be increasingly utilized with the burgeoning older population, given the predicted increase in people with impaired capacity due to dementia and the corresponding explosion in elder care. 166 A legacy of the Bournewood gap is that there is now far greater recognition that people with impaired capacity may face substantial restrictions on their liberty and freedom of movement, not only when they receive treatment in a secure hospital unit, but also when they live in residential care or in supported living arrangements in the community. 167 Many of the more recent cases before New Zealand’s Family Court, that administers the PPPR Act, are concerned with the living arrangements of older adults who lack capacity. 168 Yet, over the past three decades, New Zealand’s mental capacity law has largely remained static, despite increasing numbers of older adults with impaired capacity receiving healthcare, including their placement without their effective consent in ‘secure dementia units’. 169
The MCA provides a useful model for revision of New Zealand mental capacity law, bringing together the uneasy interface between the role of New Zealand’s adult guardianship law, the PPPR Act and the right to informed consent under the Code of Rights. In light of subsequent English developments, New Zealand should no longer rely on the common law doctrine of necessity. The decision of the ECtHR in HL v. United Kingdom was highly significant in 2004 and remains so. 170
Despite its paternalistic origins, the ‘best interests’ standard for decision-making in the MCA has the potential to provide meaningful respect for a person’s autonomy. Properly understood, assessing a person’s best interests recognizes the importance of relationships and support for the exercise of a person’s legal capacity. In this respect, reform of New Zealand law would provide an opportunity to illustrate the importance of cultural influences and to enrich the wider debate of how to provide workable laws that reflect supported decision-making in law and in practice. It is easy for New Zealand policy-makers to be complacent about the obligations under the CRPD in a relatively non-litigious society. There remains a need for a legal framework that provides for accountable decision-making and for which a policy and legislative response is required. The impact of international human rights and the CRPD has changed the face of medical law in the United Kingdom. As Lady Hale says, ‘The whole point about human rights is their universal quality’. 171 England’s ‘revolutionary potential’ 172 under the MCA could be New Zealand’s innovative gain for reform of its mental capacity law.
Footnotes
Acknowledgements
I would like to thank the following people for comments on earlier drafts of this article: Professors John Dawson and Mark Henaghan, Faculty of Law, Dr Jeanne Snelling, Bioethics Centre, University of Otago; and Alex Ruck Keene, 39 Essex Chambers, London, UK.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This article arose from research that was funded by the New Zealand Law Foundation.
