Important Legal Information
- The Form - Please Note: Before filling in the form, you should read the legal information
- Legal status of advance directives
- Who is competent?
- Diminished competence
- A valid advance directive
- Informed consent
- People who ARE NOT under the Mental Health Act
- People who ARE under the Mental Health Act
- Advance directives that refuse medical treatments
- Get it signed
- Enduring Power of Attorney
Legal status of advance directives
Advance directives are allowed in New Zealand under common law. This means that while there is no law that specifically allows advance directives, people have always had the right to make choices about the treatment they receive. The Health and Disability Code supports that right. Advance directives have not yet been tested in New Zealand courts.
Who is competent?
Most people with mental illness are competent all of the time, and almost everyone is competent most of the time. Bring competent means a person:
- understands their diagnosis and previous treatment (even if they do not agree with that diagnosis)
- can make choices by weighing up different options
- understands the consequences of their decisions.
A person can be competent even if they are under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH Act). Compulsory treatment does not make people legally incompetent.
Diminished competence
Depending on the nature of the health-care choice, diminished competency will not necessarily invalidate an advance directive. Certain choices may still be valid.
Example
An advance directive might instruct future providers not to administer any medication to a service user, or it might refuse to allow students to be present during any procedure. While it might be shown later that the service user was not competent at the time to make decisions regarding medication, he or she might still have been competent to make decisions about participating in teaching programmes. Right 7(3) of the Health and Disability Code states:
"Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence."
A valid advance directive
To be valid, an advance directive depends on:
- competence - whether the person was competent to make the directive when they made it; and
- freedom from undue influence – whether the person who made the directive was free from undue influence; and
- sufficient information – whether the person had sufficient information to make the particular directive they made; and
- application to current circumstances – whether the person intended their directive to apply to the present circumstances.
If an advance directive meets all these criteria, it is valid, even if clinicians or family disagree with the choices it makes.
Informed consent
Informed consent is a process that comprises competence, disclosure, understanding, voluntariness and consent. The process of informed consent is embodied in three essential elements under the Health and Disability Code:
- effective communication between the parties (Right 5)
- provision of all necessary information to the consumer, including information about options, risks and benefits (Right 6)
- the consumer's freely given and competent consent (Right 7).
People who ARE NOT under the Mental Health Act
If a mental health service user is not under the MH Act, clinicians should follow an advance directive unless they have good evidence of at least one of the following conditions:
- The person was not competent when they made the advance directive.
- The person did not have enough information to make decisions about treatment.
- The treatment they consented to is not useful ("clinically indicated") for treating their condition.
- The treatment that was refused is the only good treatment, if that person is a danger to him or herself, or others.
- The treatment they want is not provided by the public health system, or cannot be provided at the time when the advance directive would apply.
- The person did not make the advance directive of his or her own free will.
- The person did not intend the advance directive to cover the present situation.
- The advance directive has expired.
If a doctor does not follow an advance directive, ask them to explain their decision, in person and in writing. If you do not accept the explanation, you can complain to the Health and Disability Commissioner.
People who ARE under the Mental Health Act
People can be competent even if they are under the MH Act.
However, doctors can override an advance directive if someone is under the MH Act, but they must still seek the person’s agreement to each aspect of treatment, as they would at any other time.
The Commission recommends that people make an advance directive, even if they may be put under the MH Act in the future. At the very least, this advance directive will tell others what treatment is preferred.
Advance directives that refuse medical treatments
Right 7(7) of the Health and Disability Code states:
"Every consumer has the right to refuse services and to withdraw consent to services".
This was included in the Code in recognition of section 11 of the New Zealand Bill of Rights Act 1990, which states:
"Everyone has the right to refuse to undergo any medical treatment".
Therefore, the Code enables consumers to use advance directives to refuse medical treatment in the event that the consumer becomes incompetent or unconscious.
Any unreasonable interference with the consumer's valid advance refusal of treatment will be a breach of the Code. When considering section 11 of the Bill of Rights Act, the New Zealand courts have said that a person has to be competent to exercise their right to refuse medical treatment.
Get it signed
Right 7(2) of the Health and Disability Code states:
"Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent."
However, because acute periods of severe mental illness may reduce competence for a time, the Commission recommends that people discuss their treatment choices with their doctor, and ask him or her to sign the advance directive to confirm that they are:
- competent, and
- free from undue influence, and
- sufficiently informed about the treatment choices they are making
If a doctor or other professional does not sign to say the person is competent, then other doctors and nurses won’t know if they should follow it later on, because they won’t know if the person was competent when it was written.
A doctor does not have to agree with the choices that are made to sign an advance directive. A signature simply confirms that the service user was competent at the time the advance directive was made.
Enduring Power of Attorney
An enduring power of attorney lets people choose someone to make decisions about their care and/or property if they become “mentally incapable”. The person might be a partner, close friend or relative. They must be over 20. Talk to a lawyer to find out more about this option. We recommend that people attach a copy of their advance directive to the enduring power of attorney document, if they have one.
Under the Protection of Personal and Property Rights Act 1988 (PPPR Act) people may appoint someone with an enduring power of attorney to make decisions on their behalf, in the event they become incompetent to make their own health care choices. This person would usually have a sufficiently close relationship with the service user to enable him or her to say what the service user would have wanted in a particular situation.
The PPPR Act allows for the appointment of an attorney for general or specific matters of personal care and welfare. It is important to get independent legal advice if you are considering giving someone enduring power of attorney, to make sure:
1. you are fully informed about what it means in practice, and
2. as an extra safeguard against them having undue influence.
It can be difficult to exercise an enduring power of attorney when a person has some degree of competence but insufficient competence to make important decisions. For example, a relative with power of attorney may consent to putting an unwilling, but incompetent, family member into care or into hospital.
At the same time, families, caregivers and health service providers must recognise that the assigning an enduring power of attorney does not effectively strip a person of all rights to make their own decisions.
Someone with a degree of diminished competence may make decisions that families and caregivers do not agree with, for example, insisting on wearing shabby but comfortable clothes or indulging tastes that relatives think are unhealthy or disagreeable. These are nevertheless legitimate choices, and if a person is competent to make these decisions, then their choices must be respected.
Despite the advantages inherent in the appointment of an enduring power of attorney, these powers are subject to one important limitation. The PPPR Act prohibits people who hold powers of attorney from refusing a standard medical treatment or procedure that is intended to save the life of the consumer.
Yet this may be exactly the type of decision that somebody wants an attorney to make if they become incompetent. The only way that people can exercise their right to refuse lifesaving treatment in the event of future incompetence is by using an advance directive.
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