Competence and Capacity Medico-Legal Conference 17-18 October 2012 Dr Cordelia Thomas Specialist Senior Legal Advisor Acting Investigations Manager Office of the Health and Disability Commissioner

What obtaining informed consent means in practice A competent person… Making a voluntary choice… About information communicated effectively… Which is sufficient to make an informed decision

A competent person… Every person is presumed competent unless there are reasonable grounds for believing that the person is not competent (Right 7(2)) Determining competence: - Clinical assessment - Legal test – whether person understands the nature, purpose, effects and likely consequences of the proposed treatment or of refusing treatment

A competent person… Where a person has diminished competence, that person retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence (Right 7(3))

When a person can no longer consent Emergency Situations Advance Directives Court Orders Enduring Powers of Attorney/Welfare Guardians Right 7(4)

Emergency situations Treatment can be provided in an emergency Must be necessary to preserve life, health and well being and in the best interests of the person Clause 3 reasonable in the circumstances

Emergency situations However, the treatment: Is not justified if contrary to the known wishes of a competent person must not be inconsistent with a valid Advance Directive must be, and be no more than, what a reasonable person would expect to receive in all the circumstances

Protection of Personal and Property Rights Act 1988 (PPPR Act) Purpose is to help people who have lost the capacity to make or understand decisions about their own personal affairs or property, or who are no longer able to tell other people what they have decided The Act can apply to a wide range of people, including people who: are mentally ill have an intellectual disability have severe head injuries are elderly and have become mentally incapacitated

Orders and powers under the PPPR Act The fact that the person has made or is intending to make a decision that any other person exercising ordinary prudence would not make is not in itself sufficient grounds for the court to intervene (s6(3)) Court must make least restrictive intervention possible having regard to person’s incapacity (ss8 and 28)

Orders and powers under the PPPR Act The PPPR Act provides for the Court to make: Personal orders that deal with the care and welfare of the person in question Property orders appointing a property manager to look after the person’s property affairs Appoint a welfare guardian The Act also provides for a competent person to give an “enduring power of attorney” to one or more other people that comes into effect when the person is incompetent

Personal Orders Where a person wholly or partly lacks mental capacity to manage their affairs, the Court may make personal orders authorising certain actions or allowing others to manage those affairs e.g. Particular medical advice or treatment Rehabilitative, therapeutic, or other services of a specified kind Living arrangements specified in the order That the person shall enter, attend at, or leave an institution specified in the order (but not a psychiatric hospital)

Welfare Guardian Where a person wholly lacks mental capacity to manage their affairs, the Court may appoint a welfare guardian to make decisions on the person’s behalf

EPOA An EPOA becomes effective when the person is ‘mentally incapable’ in relation to personal care and welfare Recognises incapacity as relevant to individual decisions rather than ‘global incapacity’

When an EPOA becomes effective The person will be ‘mentally incapable’ if he or she lacks capacity to: Make a decision; or Understand the nature of decisions; or Foresee consequences of decisions or foresee consequences of failure to make decisions; or Communicate decisions (about matters relating to personal care and welfare) (Section 94 PPPR Act)

FJR v EMR (2006) Mrs R was patient in private hospital after a fall Sons – F applied to be welfare guardian and R applied to be property manager Mrs R wanted to go home – appeared at hearing Memory and intellect impressive – “sharp as a tack”

FJR v EMR (2006) Mrs R was a heavy drinker, frequently falling over injuring herself, wetting her bed and lounge chair Was a diabetic and had heart issues House was unkempt with vermin infestation – home help was arranged Fell and broke arm and while in hospital it was thought she needed full time care Mrs R – “No way – I’m going home” Doctor found Mrs R had lost “instrumental activities of daily living, personal activities of daily living and ability to maintain autonomy”

FJR v EMR (2006) Doctor found clinical evidence of partial and complete lack of competence in several areas Mill J observed Mrs R was an “impressive witness” who was competent with regard to ordinary day to day decisions Mrs R told court she was “imprisoned at the hospital” in spite of the fact she could look after herself . She said it was her home and her life and she wanted to make her own decisions

FJR v EMR (2006) Held – Mrs R lacked capacity to make decisions about where to live and how she should be cared for Least intrusive step – to make a personal order Son – property manager for specific purposes only – renting and maintaining house in order to pay for her care

FJR v EMR (2006) Given her wish to leave, on what legal basis was Mrs R treated/detained in the hospital prior to the court hearing? Mrs R was not in a secure unit – could she be prevented from leaving?

Right 7(4) of the Code of Rights Clinician can decide to provide treatment if: Person is not competent to make an informed choice; AND There is no one else entitled to consent on their behalf; AND treatment is in person’s best interests; AND EITHER Reasonable steps taken to ascertain person’s views and treatment is in accord with what person would have chosen; OR Views of other suitable persons are taken into account

Conclusion All adults have the same rights to individual autonomy and to decide what happens to them and their bodies, regardless of age Where they are no longer able to make those decisions themselves, they still have the right to be treated with respect and dignity The law relating to consent provides for the protection of those rights

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