Dunedin based Barrister Alison Douglass is a on a mission to better equip lawyers to assess the mental capacity of their clients and improve the working relationships between health and legal professionals to get the best outcomes for people who are vulnerable due to their impaired capacity for decision-making.

Alison has recently published a book, alongside Greg Young, consultant psychiatrist and Professor John McMillan who is based at the Bioethics Centre at the University of Otago.

‘Assessment of Mental Capacity - A New Zealand Guide for Doctors and Lawyers’, was inspired by Alison’s time in the UK in 2015 and the desire to provide a New Zealand equivalent to the English guide but with our own cultural dimension.

“In 2014 I received the New Zealand Law Foundation International Research Fellowship which allowed to me to carry out this research project”, explains Alison.

“I spent three months in the UK meeting a lot of dedicated people working in health, social and legal fields and I gained an understanding of how the English Mental Capacity Act operates in their specialised Court of Protection.

“What interested me the most was the Code of Practice which accompanies the Mental Capacity Act, something we don’t have in New Zealand.”

The fact we don’t have a Code of Practice may be surprising to some, given that New Zealand was in many ways ahead of the game when the Protection of Personal and Property Rights Act 1988 (PPPR Act) was passed.

“It’s interesting because we were seen by the UK as being a leading example. But now we are so far behind, particularly with human rights developments such as the Convention on the Rights of Persons with Disabilities.

“In fact, this past week we have been consulted by the Ministry of Justice in England for the revision of their Code of Practice about how we included cultural considerations into our Toolkit. There is some irony in tha,” adds Alison. 

When she returned from the UK Alison wrote a report recommending not only reform of the PPPR Act to address gaps in the law but that New Zealand establish a Code of Practice to support health professionals and others in assessing and making decisions about the capacity of their patients and clients.

“We’ve laid the groundwork for a Code of Practice in the book by writing a Toolkit for health professionals to use when assessing capacity of people with a wide range of disabilities, such as a learning disability, an acquired brain injury, dementia or a fluctuating mental illness – that may affect their capacity to make decisions.

“There is also practical guidance for lawyers in what is an inherently interdisciplinary exercise that involves knowledge about the law, health care and ethics.

“What we say in the book is that lawyers are making assessments of clients’ capacity every day. You’re making that judgement intuitively. It’s about being aware of red flags that might trigger a more deliberate assessment of capacity to make legal decisions and in some situations, a referral to a health professional.”

So how should a lawyer go about considering the capacity of a client or potential client?

“It’s about having a framework to consider the functional abilities of the person – their ability to understand, retain, use or weigh information and communicate decisions, and whether, with support, they can follow reasoning for the decisions they are being asked to make” says Alison.  

“Judging a person’s reasoning is a challenging area and it’s not always clear cut. As we discuss in the book, we need to be really careful that our judgement isn’t clouded by our own values and world view. In New Zealand this is even more critical given many of our clients will come from culturally diverse backgrounds. That’s why we have a chapter in the book by Māori Health Professor Joanne Baxter (Poutini Ngāi Tahu, Ngāti Apa ki to Rā Tō) on Māori pespectives.”

Much of the driving force for Alison’s

passion and expertise in this area comes from her work as a Court-appointed lawyer under the PPPR Act. She is frequently required to test the reasoning with doctors for how they have decided that a person lacks capacity. While the presumption of capacity should be the starting point, professionals involved also need to recognise when capacity is impaired and provide appropriate support for people who need it.

For Alison, what’s critical for the future of this area in New Zealand is the establishment of a public agency to champion the law.

“What lawyers like myself see in our work is the misuse of the Enduring Powers of Attorney. It’s frustrating that there is no Register for EPOAs or bottom-line public advocate to fulfil the role of welfare guardian when people have no one to advocate for them.  Capacity issues permeate all areas of legal practice.

“It’s very difficult for people to know where to go for information if they’re concerned about a family member’s decision making in this area. It’s why we see so many cases coming to Court which could have been resolved  at a much earlier stage if we had a public Agency that could lead the process, such as the Office for the Public Guardian in the UK or the Public Advocate in Victoria, Australia.

“I am pleased that the Justice Minister has asked the Law Commission to put a review in this area onto their work programme.”

In the meantime, Alison is continuing with her work to promote conversation in both the health and legal fields to upskill practitioners on assessing client capacity. The book is a practical guide that provides a framework for practitioners to guide their decision-making, to understand better when to seek a medical opinion and the questions to ask when engaging with a health professional.

There are also practical forms to record opinions of capacity as well as medical certificates.

‘Assessment of Mental Capacity – A New Zealand Guide for Doctors and Lawyers’ is available from Victoria University Press.