Te Aka Matua o te Ture | Law Commission is reviewing how the law should respond when an adult’s decision-making is affected.
There are many things that can affect a person’s decision-making. These can include a traumatic brain injury, dementia, learning disabilities and experiences of mental distress. People’s decision-making can be affected for one decision, for a series of decisions or for decisions more generally.
Currently, if a person’s decision-making is affected, the law may treat some or all their decisions differently to the way it otherwise would. It does this using the concept of ‘decision-making capacity’. If a person is assessed not to have decision-making capacity for a decision, the decision might not have legal effect. Another person may be appointed to make the decision for them.
This is not the only approach the law could take. In recent decades, there have been widespread calls for law reform. There has been increased recognition of the human rights of people with disabilities and a shift towards supporting people to make their own decisions. There has also been increased recognition that the law in this area does not adequately take into account te Tiriti o Waitangi, or te ao Māori and the multi-cultural nature of Aotearoa New Zealand. As well, our population is changing. Aotearoa New Zealand is an increasingly aging and culturally diverse population.
The Law Commission is reviewing how the law should respond when an adult’s decision-making is affected.
The review will include (but not be limited to) consideration of:
- Ao Māori perspectives on decision-making capacity and its regulation, including how the law should address any matters of particular concern to tāngata whaikaha Māori, their whānau, hapū and iwi, and Māori more generally.
- How the law should recognise and provide for te Tiriti o Waitangi | the Treaty of Waitangi.
- How the law should protect and promote human rights, including consideration of:
- Aotearoa New Zealand’s international human rights commitments, particularly under the Disability Convention and the United Nations Declaration on the Rights of Indigenous Peoples; and
- Domestic human rights laws, particularly the New Zealand Bill of Rights Act 1990 and Human Rights Act 1993.
- The language used in our law.
- How to assess a person’s ability to make decisions about exercising legal rights and duties.
- How the law should facilitate and regulate the provision of support to people who require support to be able to exercise legal capacity on an equal basis.
- How the law should recognise the role of whānau, hapū and iwi, family, carers and caregivers, and the wider community in the provision of such support.
- How the law should regulate the exercise of legal capacity in rare circumstances where decisions may need to be made on behalf of a person.
- What safeguards the law should provide around measures relating to the exercise of legal capacity.
- How the law should regulate situations where people, whose ability to make decisions may be limited, are deprived of their liberty (other than in the context of criminal proceedings).
The review will consider various laws and legal instruments as they relate to the regulation of adult decision-making capacity, and how they interact.
In particular, this will include:
- Protection of Personal and Property Rights Act 1988
- Mental Health (Compulsory Assessment and Treatment) Act 1992
- Substance Addiction (Compulsory Assessment and Treatment) Act 2017
- Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumers’ Rights established under that Act
We are aware that the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Substance Addiction (Compulsory Assessment and Treatment) Act 2017 are the subject of separate reviews. We will consider these reviews and their implications for our work.
The Commission will not review capacity under criminal law (which includes the Intellectual Disability (Compulsory Care and Rehabilitation Act 2003)), but may however comment on the implications of our review for criminal law.
Similarly, we will not review capacity in relation to children and young people (as defined under the Oranga Tamariki Act 1989), but we may comment on the implications of our review for children and young people, their families, whānau, hapū and iwi, and carers and caregivers, particularly as young people transition into adulthood.