A legal and clinical framework for assessing decision-making capacity in New Zealand

Alison Douglass1Dr Greg Young2

1 Barrister, 2014 recipient of the New Zealand Law Foundation International Research Fellowship, Adjunct senior lecturer, Bioethics Centre, University of Otago;
2 Psychiatrist Capital & Coast DHB, clinical lecturer, Bioethics Centre, University of Otago.

Deciding whether a person has decision-making capacity to make valid care and welfare decisions is crucial to the protection of a person’s legal rights and their experiences in the health system.  The clinical assessment of capacity lies at the interface of law, medicine (health care) and ethics.  In New Zealand, the Protection of Personal and Property Rights Act 1988 (PPPR Act) is the adult guardianship law for people who may permanently or temporarily lack capacity. The PPPR Act was progressive legislation for its time, but the range of people that use the legislation and the social environment in which it operates are now very different. There has been a comprehensive overhaul and ongoing review of this area of law in England and Wales with the introduction of the Mental Capacity Act 2005 and a Code of Practice for the guidance of health professionals, lawyers and a range of people involved with adult incapacity.

Legal developments within New Zealand and under human rights conventions, such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD) emphasise the need to review and update New Zealand’s law, as well as apply in practice the contemporary notion of supported decision-making.   It is within this context that the presenters will outline their work on the development of practical guidance in the form of an interactive toolkit for clinicians when assessing capacity, as well as a survey of doctors’ knowledge about capacity assessment, how supported decision-making might apply within New Zealand’s cultural context when assessing capacity, and why such guidance is a first step towards New Zealand developing its own Code of Practice. The toolkit for assessing capacity may be found at http://www.alisondouglass.co.nz/


Alison Douglass is a practicising lawyer and is appointed by the court to represent people with impaired capacity.  Alison is the recipient of the New Zealand Law Foundation 2014 International Research Fellowship. She undertook a legal research project in England and in July 2016 published her law reform report entitled: “Mental Capacity: updating New Zealand’s Law and Practice”. Alison co-authored the “Toolkit for Assessing Capacity”, a guidance for clinicians in the New Zealand healthcare setting, with co-presenter, Dr Greg Young, consultant psychiatrist Capital & Coast Health DHB, and Professor John McMillan, Bioethics Centre, University of Otago.

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