A/Prof. Ben Gray1
1University of Otago Wellington Primary Health Care and General Practice, Wellington, New Zealand
Biography:
Ben Gray retired as a GP after 40 years working in high needs practices. He has convened undergraduate teaching in Professionalism Ethics and Health Law for 16 years at Otago University Wellington. He has a particular interest in cross cultural care and the intersection of ethics with cultural safety. He chairs the Wellington Welfare Guardianship Trust that trains and supports volunteers to be Welfare guardians for people without capacity who have no-one else. He is on the expert advisory committee of the NZ Law Commission review into Adult Decision Making Law.
Abstract:
The Law in New Zealand relating to Adult Decision-Making is being reviewed. The current law focusses on who should have the power to make decisions: the patient if they have capacity, the Enduring Power of Attorney or Welfare Guardian if they lack capacity, and the clinician for decisions on serious illness or possibly fatal conditions. There is a presumption that decisions are made rationally by individuals. Implicit is that they agree with the clinician analysis of the problem, trust the information provided by the clinician and decide from the options offered to them by clinicians. Questions of resource availability are not explicitly discussed. Little allowance is made for decisions that may involve more than the concerns of the presenting person. Whilst the law says that decisions on capacity should be decision specific in practice it is common for people to be assessed to lack capacity and decision making given to the EPOA/WG. The process of appointing an EPOA or WG is costly and large numbers of people, particularly the most vulnerable do not have this in place. The current structure is particularly problematic for people from collective decision-making cultures such as Māori and Pacific people, and for those with a learning disability. There is no easy mechanism to address disagreement between those involved. This presentation will propose an alternate process that aligns with current clinical practice of decision making, places less emphasis on capacity, and more on ensuring support in decision making for all, and has effective mechanisms for addressing disagreement.