New Zealand Law Students Journal
Last Updated: 29 May 2014
THE PRACTITIONER KNOWS BEST? ASSESSMENT OF PATIENT CAPACITY AND RESPONSES TO REFUSAL OF TREATMENT IN EMERGENCY HEALTHCARE
This article seeks to address two key questions. First, how is patient competency to consent or refuse medical treatment assessed in a pre- hospital or emergency scenario? Secondly, what is the appropriate legal response in a pre-hospital or emergency scenario to a finding of incompetency, or to a competent patient who declines medical treatment? Though the second question touches on the two distinct concepts of incompetent patients, and competent patients who decline medical treatment, this article addresses them as one. Both are primarily focused on determining what options are available to a healthcare provider when faced with a patient who is unable to consent or who is refusing treatment that the provider believes is in the patient’s best
LLB (Hons)/BA (in progress), The University of Auckland. I wish to
acknowledge Associate Professor Joanna Manning for her support
of this article
when in its formative stages, and Luke Sizer for his helpful review. I also wish
to thank the many clinicians whom
I spoke to about this article; their
opinions were beneficial and I hope this article proves salutary for
The rationale for this article is basic: research compiled by Carol Peters in
2009 showed “poor overall knowledge of some key
areas of the law relating
to consent to medical treatment”, including a “defensive risk
management” style that
looked to deter potential complaints rather than
focus on the “patient’s best interests”.1
Peters’ study followed research in the United Kingdom that
concluded: “emergency healthcare workers do not have adequate
about how to assess capacity and treat people who either refuse treatment or
lack capacity”.2 The results were especially dismal for
ambulance officers and paramedics, with none of the 23 ambulance staff assessed
to identify the stages in testing capacity. Comparatively, 10 per
cent of nurses and 67 per cent of doctors were judged as correct
knowledge regarding capacity to consent or refuse
But the need for this research is perhaps best illustrated by a 2008 article in the Otago Daily Times in which a senior operations manager for a New Zealand ambulance service stated that a tattoo stating “Do not resuscitate” would not stop him from saving a life. “I would hesitate for a second but I would still do my job’”.4 There are powerful tensions between the instinct that many healthcare providers have to preserve life, and the principle of patient autonomy that is so
entrenched in New Zealand’s healthcare law. Although not
1 Carol Peters “Consenting to medical treatment: legal requirements vs. medical practice. Are healthcare providers exposing themselves to potential legal action?” (2009) 122(1300) NZMJ 50 at 50, 58.
2 Katharine Evans, James Warner and Elizabeth Jackson “How much do
emergency healthcare workers know about capacity and consent?” (2007)
24 Emerg Med J 391 at 393.
3 At 392.
4 Hamish McNeilly “Grandmother’s chest tattoo makes wishes clear” Otago
Daily Times (online ed, New Zealand, 12 December
incorrect, the statement displays a remarkable divergence between the
healthcare provider’s understanding of entitlement to
treatment, and the consumer’s prima facie right to decline medical
What is the New Zealand position on this matter? This article will traverse
the existing statutory tests in New Zealand, the common
law both in New Zealand
and other Commonwealth countries and current industry guidelines for assessing
capacity. The article will
also critically analyse whether current guidelines in
New Zealand and elsewhere are “safe” from a legal risk management
perspective, and whether they encourage compliance with a patient’s best
interests. The rationale for this aspect of the article
is that – as John
Devereux noted in the Australian context – “[t]he existing tests ...
lack the precision needed
to provide clear guidance to medical
practitioners”.5 After considering this, the article
probes the defence of necessity, considers the distinction between
treatment of competent
and incompetent patients and briefly discusses the unique
cases of suicidal and child patients.
This article uses two sets of terms interchangeably. “Consumer” and “patient” is one set. No distinction is intended to be drawn between these terms and both can be found in New Zealand legislation. Secondly, I use the terms “capacity” and “competence” interchangeably. As Scott Kim notes, it is important to clarify that these
terms have the same meaning despite it being “widely taught
“capacity” is a clinical concept, whereas “competence” is a legal one”.6
As Peter Skegg states, capacity to consent to medical treatment means legal
capacity to give legally effective consent, and “not
merely the ability
to express or otherwise indicate what could be taken as
Determination of capacity is a legal question. Although it is an issue
healthcare professionals ordinarily determine, it is sometimes
subject to the
determination of court. Where the determination is not a question for the court,
it may also have implications under
legislation such as the Mental Health
(Compulsory Assessment and Treatment) Act 1992. Moreover, the determination of
critical because of the role it has as an element of informed
consent. Right 7(1) of the Code of Health and Disability Services
Consumers’ Rights (“the Code”) provides that services may
only be provided to a consumer if that consumer
makes an informed choice and
gives informed consent.8 A consumer who lacks the legal ability to
decide on specific questions relating to their medical treatment cannot
therefore give informed
Where a patient has diminished competence, the consumer “retains the
right to make informed choices and give informed consent,
to the extent
appropriate to his or her level of competence”.9
Where, therefore, a determination is made that a consumer is incompetent
6 Scott YH Kim Evaluation of Capacity to Consent to Treatment and Research
(Oxford University Press, Oxford, 2010) at 17.
7 PDG Skegg “Presuming Competence to Consent: Could Anything be
Sillier?”  UQLawJl 11; (2011) 30 UQLJ 165 at 166.
8 Health and Disability Commissioner (Code of Health and Disability
Services Consumers’ Rights) Regulations 1996, sch, cl 2 Right 7(1).
9 At Right 7(2).
refuse or consent to medical treatment, any treatment the consumer receives
will be without informed consent and in breach of Right
7(1). While the
provisions relating to informed consent and reasonable actions in Right
7(4) and clause 3 of the Code may
provide a defence or justification for this
breach, at least under the Health and Disability Commissioner Act 1994, it
remains a breach of the consumer’s autonomy.
B. Statutory Indicators
The PPPRA offers some direction for
determining competency. It provides a “mechanism for the giving of consent
or the authorisation
for medical treatment on persons incapable of consenting
for themselves”,10 and is concerned both with those who are
incompetent and those who have something more than complete incapacity but are
fully able to manage their own
Section 5 of the PPPRA states:
every person shall be presumed, until the contrary is proved, to have the capacity –
(a) to understand the nature, and to foresee the
consequences, of decisions in respect of
10 Ruth Jeffery “Incapacity and Consent to Medical Treatment: Inconsistencies and Uncertainties in the Application of the Objective of the Protection of Personal and Property Rights Act 1988” (LLB(Hons) Dissertation, University of Otago, 2008) at .
11 Protection of Personal and Property Rights Act 1988, Long
matters relating to his or her personal care and welfare; and
(b) to communicate decisions in respect of those matters.
This section also provides a statutory assumption of the ability of every person to:
(1) understand the nature of decisions;
(2) foresee the consequences of decisions; and
(3) communicate those decisions.
Additionally, s 5 affirms the presumption of competency found in
Right 7(2) of the Code. It is unclear to what standard it
must be proved that a
patient lacks capacity – that is, how high the s 5 hurdle is –
although it is likely that the civil
standard of balance of probabilities
Section 6(1) of the PPPRA makes it clear that a court can interfere with
a person’s decisional autonomy if they:
(a) [lack], wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
(b) ha[ve] the capacity to understand the nature, and to foresee the
consequences, of decisions...but wholly [lack] the capacity to
communicate decisions in respect of such matters.
This section elucidates the distinction between a finding that the patient lacks capacity, and an ability to interfere with their autonomy. Here the assessment is in relation to the personal care and welfare of the patient, whereas in emergency healthcare the assessment would be in relation to
the treatment decision.
12 This is the standard applied in Canada. See PH v Eastern Regional Integrated
Health Authority (2010) NLTD 34 (NLSCTD) at
Section 93B of the PPPRA adds some important caveats to the presumption of competency. First, it stipulates that a person must not be presumed to lack the competency just because a person exercising ordinary prudence would not make the same decision in the same circumstances.13 Secondly, it clarifies that a person must not be presumed to lack the competence to make a decision just because the person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act
1992. These caveats encapsulate the fundamental tenets that a person is not
incompetent purely because the provider disagrees
with their choice, and
that a person cannot be assumed incompetent because they suffer from a mental
illness requiring compulsory
2. Mental Health (Compulsory Assessment and Treatment) Act
While the MH(CAT)A is specifically intended to deal with mentally disordered persons – and therefore needs to be distinguished from the test that might be applied to those suffering from incompetence not
arising from mental disorder – it offers an indication of
13 See also s 6(3) of the PPPRA. In stipulating this the PPPRA ushered the common law into statute, since it is well established that a patient may make a decision for rational, irrational reasons or for no reason at all: Re T (Adult: refusal of medical treatment)  EWCA Civ 18;  Fam 95 at 113;  3 WLR
782;  EWCA Civ 18;  4 All ER 649;  2 FLR 458.
14 Katharine Greig “Informed Consent in the Code of
Health and Disability Services Consumers’ Rights” (presentation
to the 8th Annual Medico- Legal Conference, 8 February 2000). See also St
George's Healthcare NHS Trust v S  3 WLR 936 (CA) at 958 EWCA Civ 1349; ,  Fam
26 at 52 (mental disorder detainment cannot force unconnected medical treatment
without diminished consent).
Parliament has seen to fit to intrude on a person’s autonomy
and compel medical treatment. It can help us think of
characteristics that might limit or negate a person’s capacity to make
their own treatment decisions.
Section 2 of the MH(CAT)A defines mental disorder as:
an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it –
(a) poses a serious danger to the health or safety of that
person or of others; or
(b) seriously diminishes the capacity of that person to take care of himself
This definition illustrates that delusions, disorders of mood or perception, volition or cognition are characteristics that potentially indicate a loss of capacity. Where found, the patient may be forced to undergo treatment (that is, the decision is taken away from them because of their inability to properly make a choice either way).15
Furthermore, the second prong of s 2 shows that where a patient has a
mental disorder this is not itself sufficient to intrude on a person’s autonomy; there must also be a serious danger to the health or safety of that person or another. This usefully raises the limits that apply in the treatment of incompetent patients, and is interesting in light of the restrictions accompanying the doctrine of necessity, which is
15 It is apt to note, however, that “[b]eing
mentally disordered and competent are not mutually exclusive, although
the presence of both factors simultaneously is no doubt uncommon”:
Re S  1 NZLR 363 (HC) at 374.
A look at Re K helpfully reveals some principles evoked by the
MH(CAT)A which are relevant to our discussion of what is an appropriate legal
to a finding of incompetency. On an application to extend a compulsory
treatment order, the Court was at pains to note that while
condition clearly comes within the statutory definition of “mental
disorder”, her right
of self- determination could not
“simply be brushed aside on the basis that she ought to accept treatment
that is good
for her and will preserve her quality of life”.16
On the facts, Mrs K was compelled to undergo treatment for her chronic
paranoid schizophrenia because she was at times “deprived
of the power to
make any reasoned or rational choice”, and therefore unable to care for
herself.17 The material words in this judgment might be considered
to be “any”, “reasoned” and “choice”,
together indicate the concern the MH(CAT)A has with intervening
only when a person lacks the capacity to reach
a decision, whether that be
beneficial or harmful. This judgment usefully illustrates how Parliament, when
it has turned its mind
to persons who are unable to make decisions for
themselves, has not been prepared to interfere with the sanctity of decisional
unless a person cannot reach any reasoned choice. This signposts
the principles that must also apply to consumers who are incompetent for reasons
not covered by the
Certainly, although the treatment permissible under the MH(CAT)A is limited to treatment for the mental disorder itself, the criteria the Act provides highlight the basic principle that in assessing appropriate legal
responses to incapacity, both the internal reasoning processes
16 Re K  NZFLR 318 at 325.
17 At 327.
the person is deluded or disordered) and the outcome (whether that or other
persons are at risk) should be considered.18
3. Health and Disability Commissioner (Code of Health and
Disability Services Consumers’ Rights) Regulations 1996
Though it regulates the presumption of competency in Right 7(2), the Code
adds surprisingly little about how providers should assess
stipulates in Right 7 that a consumer with diminished competency may still
retain some capacity to consent, and that
where a consumer is not competent to
make an informed choice the provider may in certain circumstances provide
the Code preserves the consumer’s right to refuse
services and to withdraw consent to services, in Right 7(7). This right appears
to correlate to s 11 of the New Zealand Bill of Rights Act 1990, which affirms
the right of “everyone to refuse to undergo
treatment”. Rights litigation now confirms that “everyone” in
s 11 means “every person who
is competent to
Because the Code operates as a high level tool which presumes practitioners and other healthcare providers are capable of assessing competency without statutory direction, it is of limited use in answering the first question this article seeks to address. However, the Code will become important when examining appropriate legal responses to
18 Jeffery, above n 10, at [1.4.3].
19 Re S, above n 15, at 374.
C. Case Law
Case law concerning the assessment of capacity is expansive. The starting point must be the judgment of Lord Donaldson MR in Re T.20
In this case the principle was established that “the patient’s
right of choice exists whether the reasons for making that
choice are rational,
irrational, unknown or even non-existent”.21
The first substantive test for assessing capacity was provided in 1994 in Re C. In it Thorpe J postulated three stages in assessing whether a person is a competent decision-maker:
(1) comprehending and retaining treatment information;
(2) believing it; and
(3) weighing it in the balance to arrive at a choice.22
Three years later, in Re MB, Butler-Sloss LJ applied the test in Re
C, less the requirement of “believing” the information.23
She further explained the concepts of irrationality, comprehension and
weighing information in the balance.24
In 2002 in Re B, Butler-Sloss P repeated the test she applied in Re MB.25
She further commented that any doubt about the mental capacity of a patient should be resolved by doctors within the hospital or by other
normal medical procedures, and that doctors ought not to be guided
20 Above n 13, at 102.
21 At 113.
22 Re C (adult: refusal of medical treatment)  1 WLR 290 (Fam) at 292.
23 Re MB (Medical Treatment)  EWCA Civ 1361; (1997) 38 BMLR 175 (CA). See generally “Re
MB (Medical Treatment)” (1997) 5(3) Med L Rev 317.
24 At 175.
25 Re B (Consent to Treatment: Capacity)  EWHC 429
(Fam) at 459.
their emotional reaction to a patient’s decision when assessing his or
her mental capacity to make the decision.26
A year later, the Supreme Court of Canada provided a similar test in the
landmark case Starson v Swayze.27 The Court established that
“the presumption of capacity can be displaced only by evidence
that a patient lacks the
requisite elements of capacity”.28
Its test bears marked resemblance to that laid out in Re MB since
it requires a person to understand (or comprehend) the information and then to
appreciate (similar to having to weigh) the information
to make a treatment
New Zealand case law has generally followed the approach taken by the United Kingdom and Canada. In 2004 Miller J held that the threshold question was whether the statutory presumption of competence has been rebutted.29 He held that four factors are of primary importance in determining whether a person has capacity to make the relevant
(1) ability to communicate a choice;
(2) understanding of relevant information;
(3) appreciation of the situation and its consequences; and
(4) manipulation of information – in other words, the
person’s ability to follow a logical sequence of thought
in order to reach
26 At 474.
27 Starson v Swayze 2003 SCC 32,  1 SCR 722.
28 At 42-43.
Miller J further held, citing Re G in support, that these abilities
had to be “so limited ... that any choice between such alternatives or
options ... cannot responsibly
be recognised as
D. Academic Criticism
1. New Zealand
Academic material considering a patient’s legal capacity to consent to or refuse treatment constitutes a considerable portion of the writing on medical law. The starting point for any discussion of medical law in New Zealand must be Skegg and Paterson’s Medical Law in New Zealand. It summarises New Zealand’s test of capacity as requiring the person to have ability to:31
(1) understand and retain what the treatment involves;
(2) process this information; and
(3) reach a decision.
By comparison, Sue Johnson and others simply adopt the approach taken in the United Kingdom, the test created in Re C.32 Skegg and Paterson instead appear to amalgamate case law from the United Kingdom, Canada and New Zealand. There is an inconsistency here inasmuch as the element of “belief” is absent from the amalgamated
account. Certainly, that element was significant enough that
30 See Re G [PPPR: Jurisdiction] (1994) 11 FRNZ 643 at 648.
31 PDG Skegg “Capacity to Consent to Treatment” in PDG Skegg and Ron Paterson (eds) Medical Law in New Zealand (Thomson Brookers, Wellington, 2006) 171 at 178-179.
32 Sue Johnson, Rebecca Keenan and Robert Perry “Consent Issues:
Children, Consumers with Mental Illness or Intellectual
Disability” in Rebecca Keenan (ed) Health care and the Law (4th
ed, Thomson Reuters, Wellington, 2010) 119 at 139.
Sloss LJ chose to omit it from her characterisation of the test for capacity
in Re MB. The tests therefore appear to depart from each other, and could
foreseeably be applied to reach different conclusions with regard
to the same
set of facts.
Australian law is no clearer. In Australian Medical Law, Devereux
states “competency operates as a “gatekeeper”...[telling us]
which bioethical principle, respect for
autonomy or beneficence, should take
precedence in any particular patient’s
Devereux proposes a functional approach to competency based upon how well the patient can achieve certain tasks and decisions. Within this approach he highlights five different sub-approaches:34
(1) evidence of choice;
(2) reasonable outcome of choice;
(3) choice based on rational reasons; (4) the ability to understand; and
(5) actual understanding.
It is the last test of actual understanding that applies in Australia.35 In
Re: O the Australian Family Court was faced with an application by a
16-year-old boy with Asperger’s syndrome and Gender Identity Disorder to undergo special procedures in relation to a gender change.36 Applying the actual understanding test, Dessau J noted O was
competent to consent and had the ability
33 Devereux, above n 5, at 197.
34 At 198.
35 At 199.
36 Re: O (Special Medical Procedure)  FamCA 1153.
37 At -.
(1) understand the nature and purpose of the proposed treatment;
(2) make an informed decision about the proposed
(3) understand explanations given to him by the professionals; and
(4) understand the options available to him.
Re O thereby usefully indicates indicia for assessing capacity
in Australia. While not discussing the issue in any detail, Re O is part
of the category of cases which Devereux considers to show that “the
patient need only understand “in broad terms”
the nature of any
procedure” to be said to have actual
Importantly, Devereux considers a distinction can be made between three
meanings of “understanding”. The first may be
“understanding how”, the second as understanding “that”
and the final as understanding “what”.39 Understanding
“that” is the sense of understanding relevant to an assessment of
competency because the patient must be
able to make sense of what he or she is
told, believe the information and apply that information to their own
treatment choices.40 This analysis of the test of capacity is
similar to that in Re C, although it retains the now-dropped element of
The tests for capacity in some Canadian provinces are far clearer than in New Zealand or Australia. Legislative guidance has been provided in Alberta and Manitoba. In Alberta a person is competent to make
treatment decisions if the person is “able to understand the
38 At 200.
39 At 199.
40 At 199-200 (emphasis added).
matter relating to the decisions and to appreciate the consequences of making
the decisions”. In Manitoba the patient must understand
condition, the nature and purpose of the treatment, and the relative risks and
benefits of undergoing, or not undergoing
Although these legislative measures go some way in defining the test for
capacity, Sneiderman, Irvine and Osborne note “there
definitive objective test that measures a patient’s decision making
capacity”.42 Nonetheless, they posit that the primary test of
competence in Canada is: understanding information and the foreseeable
of the proposed treatment.43 This test was fully
affirmed by the Supreme Court of Canada in Starson v Swayze.44
McLachlin CJ’s dissent adds flesh to this two-stage test by saying
“the primary means of ascertaining capacity or ability
... [is] ... what
an individual in fact says and does.”45
Canadian jurisprudence was significantly developed in PH v Eastern
Regional Integrated Health Authority,46 into the following elements:
(1) Understanding the information, that is, being able to
process and retain the information; and
(2) Understanding the information, that is, being capable of recognising that he or she is affected by a condition;
(3) Being able to weigh and appreciate the foreseeable
consequences of the treatment decision.
41 Barney Sneiderman, John Irvine, Philip Osborne and Randy M Zettle Canadian Medical Law: An Introduction for Physicians, Nurses, and Other Health Care Professionals (2nd ed, Carswell, Ontario, 1995) at 264.
42 At 382.
43 At 34.
44 Starson, above n 27.
45 At 14-15.
46 PH, above n 12.
These three elements are synonymous with the tests put forward by Skegg,
Johnson and others, and Devereux. The PH test raises the same three
elements as does Skegg. Although it does not discuss “belief”, it is
materially similar to
the Johnson and Devereux tests by requiring the patient to
have the ability to recognise they suffer from a condition. This is perhaps
requirement additional to the test enunciated by Skegg but might also be caught
by his requirement that a patient must have the
ability to process the
information. In this way, there is a substantial degree of similarity across the
three common law jurisdictions.
In their cogent analysis of the test for capacity in the United Kingdom,
Kennedy and Grubb draw attention to the “functional
in the Law Commission’s 1995 report, Mental Incapacity.47
The Commission stated:48
... the new definition of incapacity should emphasise its decision-specific nature. A diagnostic threshold of “mental disability” should be included, except in cases of inability to communicate. We recommend that legislation should provide that a person is without capacity if at the material time he or she is:
(1) unable by reason of mental disability to make a decision
on the matter in question; or
(2) unable to communicate a decision on that matter because
he or she is unconscious or for any other reason’.
48 Law Commission Mental Incapacity: Item 9 of the Fourth Programme of
Law Reform: Mentally Incapacitated Adults (HMSO, London, 1995) at
This strongly resembles the notion of mental disorder in the MH(CAT)A, and s 6 of the PPPRA, referring to a person who is unable to communicate. In the Mental Capacity Act 2005 Code of Practice, the Department for Constitutional Affairs noted that the Act sets out a two-stage test of capacity:49
(1) Does the person have an impairment of, or a disturbance
in the functioning of, their mind or brain?
(2) Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
(a) A person is unable to make a decision if they
(i) Understand information about the decision to be made;
(ii) Retain that information in their mind; (iii) Use or weigh that information as part of the decision-making process, or
(iv) Communicate their decision (by talking, using sign
language or any other means).
The second stage of this test is of course similar to the Canadian test of actual understanding. Indeed, Kennedy and Grubb note that where judges have discussed “understanding” they have asked whether the “patient does in fact understand what is involved”, rather than “is capable
49 Department for Constitutional Affairs Mental Capacity Act 2005 Code of
Practice (TSO, Norwich, 2007) at 45.
50 Kennedy and Grubb, above n 50, at 615 (emphasis
E. Industry Guidelines
Assessing clinical guidelines across the British Columbia Ambulance Service
(“BCAS”), Ireland Pre-Hospital Emergency Care
(“PHECC”), St John New Zealand and the London Ambulance Service
(“LAS”), it becomes apparent that
capacity is assessed differently
at the coal-face of healthcare than in legal jurisprudence. For instance, BCAS
“mental status involves awareness (or level of
consciousness), cognition (or thinking) and attention. A typical
altered patient [that is, a patient with a reduced mental status] may be sleepy,
not making sense or unable to follow
commands. Patients may also be excited,
repetitively asking questions or belligerent”.51 The
procedures are, however, silent on the issues of patient capacity and consent
while at the same time directing that “patients
with altered mental status
and no discernable treatable cause require expeditious transport to
The danger with this direction is that it can lead emergency healthcare workers to think that expeditious transport may be justifiable if it is in the patient’s best interests, and is therefore compellable. Indeed, the Goal of Care for agitated patients is “Recognition of altered mental status; look for reversible causes, and provide safe transportation”.53
This fails to recognise the legal principle that capacity concerns whether
the patient is capable of understanding (or actually understands), rather
than whether they have an “altered mental
51 British Columbia Ambulance Service “Adult Treatment Guidelines”
(Emergency and Health Services Commission, British Columbia, 2012) at
1 (original emphasis).
52 At 1.
A different approach is taken by PHECC. PHECC has different guidelines according to a practitioner’s authority to practice (that is, their ability to provide specific treatments such as morphine). While identifying and managing life-threatening conditions, patient Care Principles ensure adequate ventilation and oxygenation, and provide appropriate pain relief. There is, however, no principle regarding informed consent.54 PHECC guidelines do appear cognisant of the law and warn that “practitioners may not compel a patient to accompany them or prevent a patient from leaving an ambulance vehicle”.55
Additionally, the Guidelines provide the following test for evaluating capacity:56
(1) Patient verbalises/communicates understanding of
(2) Patient verbalises/communicates appreciation of applicable risk?
(3) Patient verbalises/communicates ability to make alternative plan of care?
(4) If no to any of the above consider Patient
While these questions identify understanding and appreciation as components of capacity, the third question appears anomalous. What is meant by an alternative plan of care is unclear, and there is a risk it could lead practitioners to believe that where a patient does not deal with or change their circumstances (for example, by seeing a GP), the patient lacks capacity. In this way, the third question may cause a
patient to be considered incompetent simply because they appear
54 Pre-Hospital Emergency Care Council
“PHECC Clinical Practice Guidelines: Advanced Paramedics”
ed, Abbey Moat House, Ireland, 2012) at 13-14.
suffer from a delusion or condition for which they competently refuse
treatment and refuse to communicate an alternative plan of care.
Despite this, the PHECC guidelines provide a commendable model for ensuring
patients can make an informed choice. It encourages practitioners
police help where there is a “potential to harm self or others”, to
“reassure patient and explain what
is happening at all times”, to
“offer to treat and or transport the patient”, “inform the
patient of potential
consequences of treatment refusal”, “advise
alternative care options” or “await arrival of doctor or
where the patient lacks capacity and is refusing.57
These Guidelines are likely to result in effective communication and
information-giving under Rights 5 and 6 of the Code. In particular
an explanation of the person’s condition is given, including an
explanation of expected risks, side effects and
benefits of each treatment
St John New Zealand has Comprehensive Clinical Practice Guidelines which successfully identify the link between competency and consent,58 and notice the right of “competent patients...to decline treatment,
including resuscitation in the event of cardiac
57 At 52.
58 St John New Zealand “Clinical Practice
Guidelines 2011-2013” (St John New Zealand, 2011). The Guidelines
when treatment is provided by a student or trainee, ‘the
patient (if competent) is asked to consent to have treatment
provided by a student or trainee’ at 10 (emphasis added).
The Guidelines provide the following test for competency: 60
A competent patient has the right to refuse treatment. Every patient is presumed to be competent to make decisions unless there are reasonable grounds to believe otherwise;
Patients can be deemed competent to make decisions if they meet all of the following criteria:
a) They appear to understand information given to them and can recall this when asked and
b) They appear to understand the implications of their decisions and can recall these when asked and
c) They communicate on these issues consistently
d) They are over 16 years of age and
e) They have not attempted, or expressed thoughts of self harm
If all of these criteria are not met, competency is in question and personnel must act in the best interest of the patient.61
Always act in the best interest of a patient who is not competent to make decisions.62
The risks of treatment and/or transport against their
will must be balanced against the risks of their illness or injury.
These Guidelines go a significant way in ensuring that patient competency is assessed and respected. They accord with the major rights under the Code, including the right to effective communication and the right to be fully informed. Recognising the fact that emergency healthcare practitioners have little time, scarce resources and a lack of specialised skill to declare a patient incompetent, the Guidelines are reasonably geared towards providing the practitioner with possible indicators of incompetency rather than an exhaustive test. As
practitioners lack the three to five hours it might take for a specialist
60 At 131.
undertake a full competency assessment, this is a practical and
However, certain elements of the test provided in these Guidelines signal
conclusions that are not necessarily legally correct. First,
stating that if all
the criteria provided are not met competency is in question and the personnel
must act in the best interest of
the patient is a legal misnomer, for several
reasons. If the competency of the patient is in question, this is not the same
declaration that the patient is incompetent to make a specific treatment
decision. Further, a provider will only be justified in
acting in the best
interest of a patient who is actually not competent to make a specific
treatment decision. Staff who instead act in the best interest of a patient
whose competency is in
question may be in breach of Right 7(2) of the
Code’s presumption of competency. That said, where the provider has a
held belief that the consumer is incompetent, any
action taken may be defensible under Clause 3 of the Code.
Secondly, while acknowledging that personnel must act in the best interests of a consumer who is not competent to make an informed choice, the test omits the legal obligations under Right 7(4)(b) and (c) of the Code. These state that, in addition to the best interests rule, a provider must take “reasonable steps to ascertain the views of the consumer” and can only provide treatment where “having regard to those views, the provider believes ... that the provision of the services is consistent with the informed choice the consumer would make if he or she were competent”. Where the consumer’s views cannot reasonably be ascertained, the provider must “take into account the
views of other suitable persons”.63 By omitting
these elements the
63 Code of Health and Disability Services Consumers’ Rights, above n 8,
Guidelines fail to ensure paramedics are acting legally when providing
treatment to patients who are incompetent to make a specific
Thirdly, despite a positive affirmation in the Guidelines
that competence must be presumed, the actual test does not
assumption. Rather, it reverses the starting point by stating that
“patients can be deemed to be competent to make decisions if
they meet all of the following criteria”.64 While
acknowledging that in a time- pressured emergency environment it may be more
practical to provide indicators of competency than
incompetency (which are
limitless), the test ought to be framed in the negative: a patient may be
incompetent if they cannot meet any of the following
Fourthly, the test states that a patient must be able to communicate their understanding consistently. Although inability to make a decision is a potential indicator of incompetence there is no legal requirement to communicate on an issue consistently. Certainly, ambivalence in making a treatment decision “may be relevant if, and only if, the ambivalence genuinely strikes at the root of the mental capacity of the patient”.65
Moreover, some American case law signals that a change of mind may not demonstrate incompetence.66 However, if a person cannot communicate on issues consistently enough to make a choice at all
(given enough time to do so), this may indicate a lack of
64 St John Guidelines, above n 61, at 83.
65 Re MB, above n 23, at . Butler-Sloss P is here quoting Bartling v
Superior Court of Los Angeles County (1984) 163 Cal App 3d 186.
PPPRA, s 94(2)(a)(i).
Other elements of St John’s test require clarification in order to enhance consistency of application among ambulance practitioners. For example, while understanding the information, understanding the implications of their decision, and the ability to recall the information are listed as indicia of competence, the Guidelines fail to expand on the definitions of each. As noted in PH v Eastern Regional Health Authority, “understanding” is a complex term that entails being able to process the information and believing that he or she is affected by a condition.68
Furthermore, the ability to “recall the information” requires
further definition as it is unclear how long and how much
information must be
recalled. The answer to this question will no doubt change depending on the
facts and the gravity of the choice
The Guidelines also appear to endorse an all or nothing approach. They talk about “competent” and “not competent” patients. A distinction can be drawn between deeming a patient competent to make decisions and competent to make a particular decision. Indeed, the question regarding competency is “decision-specific: does the patient possess the mental capacity to decide upon the particular treatment at issue?”69
Kennedy and Grubb echo this sentiment.70 Broadly deeming a patient
competent or incompetent risks breaching Right 7(3) by failing to acknowledge
that a consumer may be entitled to make some decisions,
The LAS has a detailed “Policy for Consent to Examination or Treatment” document which contains guidance for all staff who provide care to patients. This policy is the most comprehensive of any
material described in this article, and defines capacity as:
68 PH, above n 12, at 13.
69 Sneiderman, above n 42, at 382.
70 Kennedy and Grubb, above n 50, at 613.
absolute concept. Different degrees of capacity are required for
different decisions, with the level of competence required
increasing with the
complexity of the decision”.71 It reiterates the two-stage
test laid out in the Mental Capacity Act 2005 but usefully provides the
following additional questions:72
(1) First Stage
(a) Is there any evidence that the patient has
impairment of, or a disturbance in the functioning
of, the mind or brain’?
(2) Second Stage
(a) Do you feel the patient is able to communicate a
(b) Has the patient been given sufficient information, in a way they can understand, to inform them of the decision they now need to make about treatment?
(c) Do you feel that the patient is able to understand
the principal risks and benefits of what is proposed? (d) Does the patient, therefore, understand the reasonably foreseeable consequences of receiving,
or not receiving, the proposed treatment?
(e) Can the patient retain the information for long enough to make a valid decision?
(f) Is the patient free from external pressure or
An obvious limitation is that this test mimics the Mental Capacity Act
2005, which has no application in New Zealand. However, the test appears to
ask the same four questions as Miller J did in KR v MR. Regarding this
last point, it is the question “can the patient retain
71 London Ambulance Services NHS Trust “Policy for Consent to
Examination or Treatment” (Medical Directorate, 2010) at 5.
72 At 6-7.
information for long enough to make a valid decision?” which inquires
whether the person can manipulate the
I would suggest that the LAS test therefore inquires into the same indicia of
capacity as New Zealand courts have applied, and for
this reason should be
viewed as an excellent example of how to clarify industry procedures. It is
worth noting that the process
of assessing capacity in London is generally more
comprehensive and legalistic than in New Zealand; the LAS has specific
of capacity” forms which practitioners must complete
if faced with an incompetent patient.
The LAS question regarding coercion is no doubt geared toward the dictum of
Staughton LJ in Re T, who noted that the three reasons consent may be
inoperative include undue influence, a lack of adequate and accurate information
or incapacity.74 Although these issues do not appear in New Zealand
cases as strongly as they do in the United Kingdom, it is clear that New
consumers also have a right to be free from exploitation or undue
The “checklist approach” may provide greater guidance in
the following three case studies.
Case A: Consider the situation of a middle-aged woman whose flatmate called an ambulance after becoming concerned that the woman had been consuming large amounts of alcohol for several days. The woman, whose house is ordinarily
immaculate, does not appear to have left her couch even for toileting and
the floor is
73 KR v MR, above n 29, at .
74 Re T (Adult: Refusal of Treatment), above n 13, at 121-122.
75 Code of Health and Disability Services Consumers’ Rights, above n 8, at
covered with empty bottles. She is not initially aware as to date, day or
time, but does become orientated to these after some time.
refuses any treatment or examination, does not express thoughts of
self-harm and repeats back the information
she is given . She is not
committing any crime, does not pose a public nuisance and does not appear to
have an immediately life threatening
This case is perhaps the most difficult. Against the indicia of
competency provided in the St John guidelines the woman
might be found
competent, despite being intoxicated. She is eventually orientated as to basic
facts and can recall the information
and implications of her decision when
asked. She therefore has a basic ability to retain information, and to
Her potential lack of capacity appears largely to lie in
her inability to apply the information to herself and process it, although
is not a requirement of the St John test. In practice, this woman was forcibly
taken to hospital (in her best interests and
at the request of her flatmate) by
police, although the legal justification for this is unclear.
Case B: Consider the situation of a middle-aged man with acutely
low blood pressure, but who is alert and orientated and consistent
refusal of transport. He is only able to maintain consciousness while lying
down, and collapses on standing.
A checklist approach that asks whether this patient understands the
information, the risks and benefits of treatment and can weigh
and apply the
information would here be beneficial. The patient would be found incompetent to
refuse treatment because his attempt
to walk illustrates a lack of
understanding of his condition. Once unconscious, he is incompetent to make a
treatment decision and
the practitioner might justifiably act in reliance on the
fact that the situation is now wholly different from when he was
Case C: Consider the situation of a 16-year-old boy who, having consumed
magic mushrooms, is incontinent and unable to make a definitive
to accept transport to hospital. This is the only presently available
intervention, and is necessary
for continued monitoring of the patient. His
mother advocates but does not insist on transport to hospital.
This case is clear-cut since the patient is unable to communicate
consistently. This would render him incompetent by the St John guidelines,
indicating that he lacks the ability to refuse treatment. The same conclusion
would be reached on an LAS checklist approach since
the patient is unable to
communicate a decision effectively; it must be said that where a patient cannot
reach a decision at all,
he fails the capacity statement on this
F. What Action Can Be Taken Without a Patient’s Informed
1. If the patient is competent
It is a fundamental tenet of medical law, encapsulated in Right 7(7) of the
Code, that a competent adult patient has the autonomy
to refuse to consent or to
withdraw consent to any medical treatment, even where such will result in the
inevitable death of the
person who is refusing consent.76 The
situation for children differs and will be discussed later.
Thus, it is not possible to compel a consumer to receive treatment that they have competently refused, even where the provider believes it to
be in their best interest. As is noted in the Code of Practice for
76 PDG Skegg “Justifications for Treatment
Without Consent” in PDG Skegg and Ron Paterson (eds) Medical
Law in New Zealand (Thomson Brookers, Wellington, 2006) 229 at
Mental Capacity Act 2005, “ultimate responsibility for working out best
interests lies with the decision-maker”.77 Where a consumer
makes a treatment decision they are competent to make but which is unwise, the
provider is best to reiterate the
consequences of that decision, ensure that
sufficient information has been provided in a way that the consumer can
and to involve family, friends and other treatment providers
where appropriate and where the patient has given consent to do so.
Respect for self-determination and the autonomy of a competent
patient is heavily protected. In New Zealand, s 11 of the New
Zealand Bill of
Rights Act 1990 preserves the right of every person to refuse to undergo any
medical treatment. The only restriction
to this broad right is that
“everyone” must be read as meaning “every person who is
competent to consent”.78
The courts have shown fierce reluctance to intervene with a patient’s autonomy. This is true even where a person may be unable, at times, to preserve his or her ordinary standards of property and personal cleanliness, with detrimental effects to her health.79 In the United Kingdom and Canada, the sanctity of decisional autonomy has been respected with the result that a patient suffering from an irreversible condition was granted an injunction ordering the discontinuance of a life-sustaining ventilator,80 and a prisoner determined to starve himself to death was allowed to do so.81 Moreover, it seems “this right to refuse
treatment also extends to situations that will imperil the health and
77 Code of Practice, above n 52, at 88.
78 Re S, above n 15, at 374.
79 Re K, above n 16, at 324.
80 Nancy B v Hotel-Dieu de Quebec (1992) 86 DLR (4th) 385 (Que SC).
81 Secretary of State for the Home Department v Robb
 Fam 127.
of an unborn child”, where the courts appear to favour the autonomy of
the competent mother.82
Perhaps the only limit the courts have placed on competent refusals of
lifesaving treatment is to increase the level of capacity required.
doctors should consider “whether [there is] capacity commensurate
with the gravity of the decision being made”.83
2. If the patient is incompetent
(1) Where there is a valid advance directive or anticipatory refusal
Where a patient is incompetent the practitioner must obey any valid advance directive or other anticipatory refusal of treatment.84
Treatment not anticipated by, or falling outside the scope of, the
advance directive is subject to the same rules that apply
when there is no
(2) Where there is a proxy
Where a patient is incompetent to make a specific treatment decision there
may be scope under Right 7(4) of the Code to provide treatment
if no person
entitled to consent on behalf of the consumer is available and all other
relevant criteria have been met.
82 Skegg, above n 80, at 231. See also St George’s Healthcare, above n 14.
83 Re T, above n 13, at 113.
84 See the Code of Health and Disability Services Consumers’ Rights, above
n 8, Right 7(5).
85 [Editor’s Footnote: see also the excellent article by Emma Sherratt at
 NZLawStuJl 3; (2013) 3 NZLSJ 1.]
Who may be entitled to consent on behalf of a consumer? Examples include
“a parent giving consent on behalf of a child, or a
guardian”86 and a person with Enduring Power of Attorney,
although the latter cannot refuse standard lifesaving
(3) Where there is no proxy
Contrary to popular belief, there is no general right whereby a spouse or near relative has the ability to give consent on behalf of an adult.88
This was confirmed in the United Kingdom in both Re F and Re
T.89 In a 2007 decision by the Health and Disability Commissioner
(“HDC”), it was said that because neither Mrs B nor Ms C
daughters of Mrs A) were “entitled to consent to the use of restraint on
Mrs A’s behalf”, it was misleading
to ask Mrs A’s family to
complete consent forms regarding the use of cot-sides.90
Nonetheless, “[p]revention of a lawsuit is the practical consideration behind securing the consent of an incompetent patient’s relative”,91 and the HDC has found that in certain circumstances a failure to consult
family constituted a breach of Right 7(4)(c)(ii) of the Code.92
86 Health and Disability Commissioner “A Review of the Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumers’ Rights – A Resource for Public Consultation” (Health and Disability Commissioner, Wellington, 2004) at 43.
87 Protection of Personal and Property Rights Act 1988, s 18(1)(c).
88 Kennedy and Grubb, above n 50, at 823.
89 See Jeffery, above n 10, at [1.2.1].
90 Deputy Health and Disability Commissioner Decision 07HDC17744
(Health and Disability Commissioner, Wellington, 2009) at 26.
91 Rozovsky, above n 70, at 466.
92 Health and Disability Commissioner Opinion 97HDC7679 (Health and
Disability Commissioner, Wellington, 2000) at 6.
practice is to consult with the patient’s family and seek “their
guidance and approval ... more [as] a courtesy extended
to the family than a
If it is determined that no person entitled to consent on the
consumer’s behalf is available, Right 7(4) effectively implements
double-barreled test that applies both a “best interests” and a
“substituted judgment” test. As noted by
the HDC, when assessing a
patient’s best interests, the provider must look at the consumer’s
and quality of life from a wider holistic view point, as
required by Right 4(4) of the Code”.94 In determining
best interests, a “consensus building approach” is best
practice.95 This aims to ensure that what the patient considers to
be his or her best interests is applied, since it “aims to draw on the
family and treating team’s knowledge and understanding of the
patient’s personal values”.96 In doing so, this approach
meets the obligation to take reasonable steps to ascertain the views of
the consumer under Right
7(4)(c)(ii). If the views of the consumer are in
conflict with what the healthcare provider determines as being in the
best interests there is no authority for the provider to then
act according to his or her belief of those interests. To do so would
breach of Right 7(4)(c)(i) by providing treatment the consumer would refuse if
The substituted judgment test is “a controversial concept, not the least because of the inherent difficulties of attempting to assess what an
incompetent patient would have decided were he
93 Sneiderman, above n 42, at 28.
94 Resource for Public Consultation, above n 90, at 43.
95 Devereux, above n 5, at 892.
96 At 892.
97 Kennedy and Grubb, above n 50, at 832.
Primarily, it ought to be used as an aid to assess what is in the
patient’s best interests since a patient is ordinarily the
best arbiter of
his or her own interests. Moreover, by seeking the views of the patient there is
substantial attention given to “his
moral worth”, and “if the
person recovered ... he would be most likely to ratify a decision that attempted
and do that which from the circumstances it appears that he would
3. Emergency situations
A provider is not excused from the Right 7(4) test simply because of time
constraints. The provider must still act in the
interests and make reasonable attempts to ascertain the patient’s views,
although what is reasonable
in an emergency scenario will no doubt be assessed
against a much lower threshold than in other circumstances.
The “emergency room rule” is that a provider will be justified in providing treatment where such is limited to what is strictly necessary in the circumstances, until further consent can be obtained.99 Any reasonable action taken in an emergency is likely to be covered by cl 3 of the Code,100 and “there health practitioners and others will often come within the scope of a common law justification when ... they intervene in an emergency in an attempt to save the life of an
unconscious [or incompetent] victim”.101
98 At 835.
99 Sue Johnson and Rebecca Keenan “Consent” in Rebecca Keenan (ed) Health Care and the Law (4th ed, Thomson Reuters, Wellington, 2010) 85 at 89.
100 Clause 3(1) reads: “A provider is not in breach of this Code if the
provider has taken reasonable actions in the circumstances to give effect to the rights, and comply with the duties, in this Code”.
101 Skegg, above n 80, at 245.
There are two basic requirements for the common law justification of necessity:
(1) a necessity to act when it is not practicable to
communicate with the assisted person; and
(2) the action taken must be such as a reasonable person would in
all circumstances take, in the best interests of the
The fundamental limitation is that, in an emergency, the doctrine of
necessity will not justify action over or above what was strictly
the circumstances. Thus, the healthcare provider must take the least intrusive
and fewest interventions as possible in
seeking only to “preserve his life
and health”.103 Lord Goff of Chieveley did, however, make it
clear that the doctrine may extend beyond the bare minimum where the patient is
or semi-permanently incompetent.104
Rozovsky illustrates necessity’s applicability with cases of
unconscious patients,105 patients with heart attacks, strokes or bee
sting reactions in progress,106 and patients incapacitated by sudden
illness, intoxication, or shock or trauma.107
What about the incompetent patient who is alert, conscious, and refusing?
This situation is common among patients who are hypoglycaemic
or have sustained
a traumatic brain injury. Such patients are often combative, though are no
doubt incompetent. Does the
102 Devereux , above n 5, at 776.
103 Sneiderman, above n 42, at 28.
104 Re F v West Berkshire Health Authority  UKHL 1;  2 AC 1 (HL) at 26.
105 Rozovsky, above n 70, at 33.
106 At 105.
107 At 106-107.
emergency rule enable a healthcare provider to pharmacologically relax or
paralyse this patient in order to provide treatment? It
is likely that where a
patient poses a risk to themselves or others, restraint can be applied in
these forms.108 This is also the position in the United
Kingdom where it has been noted that “treatment ... may be given if [the
patient] is uncooperative; if it is in his best interests to
receive such treatment in spite of resistance”.109
Conundrums arise where a patient of apparently sound mind requires but
refuses emergency treatment. There is substantial inconsistency
the response of healthcare providers to patients in this scenario. On one hand,
it appears that because of the statutory
presumption of competence a patient
who, in an emergency, voices a refusal to consent to treatment or
have that direction respected until the patient can be
I believe this approach is incorrect. The primary rationale for this belief is that “the law, when in doubt, opts for life rather than no life, and treatment rather than no treatment”.110 Indeed, “if immediate priority is given to the patient’s autonomy through acting according to [their] wishes, there is a risk of depriving her of potential benefits in the future”,111 and it is clear that in considering each emergency case “a doctor should err on the side of preserving life” before acting upon a
decision which has come about in circumstances where the
108 Skegg, above n 80, at 245. See also s 48 Crimes Act 1961 “Self-defence
and defence of another”.
110 Keenan “Consent”, above n 50, at 109.
111 Re B, above n 25, at .
has had little time to make a reasoned decision.112 It might also
be said that a patient who makes a decision in an emergency that will or could
have life-ending ramifications should
not have that decision honoured until they
have been given sufficient information so that their decision could be
Although Lord Donaldson made it clear in Re T that
informed refusal is a controversial concept, it is true that a patient should
know in “broad terms ... appropriately full
Certainly, the amount of information that can be imparted in an emergency
situation is limited, but as the Supreme Court of Western
Australia noted in
Brightwater v Rossiter full provision of information as to consequences
of any decision should be given where “perfectly feasible”.114
Considering the public interest in preserving life, there are good grounds
to advance the proposition that if a patient is unable
to, or has not, received
full information about their condition and treatment options, it is reasonable
to refrain from acting on
a decision that might lead to irreparable harm or
Moreover, the United Kingdom Court of Appeal has noted that “where delay [in assessment] may itself cause serious damage to the patient’s health or put her life at risk then formulaic compliance with these guidelines [of assessing capacity] would be inappropriate”.115 This has been echoed by Butler-Sloss P: “while the question of capacity is being resolved, the patient must, of course, be cared for in accordance with
the judgment of the doctors as to the patient’s best
112 Francis and Johnston, above n 113, at 170.
113 Above n 13, at 115.
114 Brightwater Care Group (Inc) v Rossiter  WASC 229, (2009) 40 WAR
84, at .
115 Skegg, above n 7, at 173.
116 Re B, above n 25, at .
The following examples provide support for the notion that life-saving
treatment should be provided until capacity can be properly
“consider the victim of a traumatic accident who decides soon after
learning that she is quadriplegic ... that her
respirator be disconnected. That
kind of hasty decision cannot be accepted because the patient must have time to
come to terms with
her situation ... [if] she remains adamant, then her choice
must be honoured”.117 This example adopts the rationale of the
Court in Re M where the decision of a 15-year-old girl to refuse a heart
transplant in circumstances that came on suddenly and moved rapidly was
accepted because the girl lacked time and maturity to consider her
4. Suicide attempts
Snap decisions to refuse consent to medical treatment frequently come after
suicide attempts or from patients suffering depression.
These patients are
likely to be treated as part of a special category, with some legal commentators
arguing that “in an emergency
room setting, (apparent) suicide attempters
should not be presumed competent”.119
A patient has the right to refuse treatment, even where this leads to the
patient’s death.120 A refusal of lifesaving measures is not
necessarily suicide, and I am solely concerned with clear instances of suicide
intent. In the main, if the patient has intentionally brought about
their medical crisis, for example by a self-inflicted
117 Jocelyn Grant Downie, Timothy A Caulfield and Colleen M Flood
Canadian Health Law and Policy (4th ed, LexisNexis, Markham, Ontario,
2011) at 505.
118 Re M (Child: Refusal of Medical Treatment)  52 BMLR 124 (Fam).
119 Skegg, above n 7, at 187.
120 See Skegg, above n 80.
underdose or overdose, it is highly probable that suicidal intent was a
Returning to the presumption against suicide attempters’ competency, I consider this approach is correct for two reasons. First, there is a statutory framework and public interest in preventing suicide. Section
41 of the Crimes Act 1961 provides a justification to use reasonable
force in preventing the commission of suicide or serious injury to any
person. This would appear to cover attempts to prevent death
after the attempt.
Moreover, the state holds an interest in preserving life, which should enable
practitioners to provide treatment
in the case of suicide
Secondly, suicide attempts are often cries for help rather than genuine attempts.123 The case of Kerrie Wooltorton who in 2007 drank several glasses of antifreeze in a suicide attempt and presented at hospital with a note refusing treatment illustrated clearly the irreversible and risk- averse approach taken by some practitioners to suicidal patients.124 As one commentator has noted, “most people who present in a manner similar to that of Kerrie Wooltorton will not have made a considered
decision to die that carries forward their agency. For most, the
121 See Raphael Leo “Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians” (1999) 1(5) Prim Care Companion J Clin Psychiatry 131 at 137.
122 Kennedy and Grubb, above n 50, at 923.
123 Keenan “Consent”, above n 99, at 109.
124 S Callaghan and CJ Ryan “Refusing Medical
Treatment After Attempted Suicide: Rethinking Capacity and Coercive
in Light of the Kerrie Wooltorton Case” (2011) 18 JLM 811.
Kerrie Woolworton was allowed to die, and healthcare professionals acted in
compliance with her note.
will be an impulsive one”.125 Indeed, “in the case of
adults, it seems the great majority suffer from serious mental disorders –
and, much more often
than not, will subsequently be glad that their lives have
been saved.”126 Psychiatrist Raphael Leo writes that
“severe suicide attempts along with suicidal ideas, intent, or plans
constitute prima facie
evidence for a psychiatric disorder and the lack of
capacity to make reasoned decisions regarding interventions”.127
Leo usefully further argues “it is desirable to delay decision
making until after the depression, or the psychiatric condition
suicidal ideation, is successfully treated”.128 The strength
of this argument is compounded by the fact that suicidal patients or those
suffering from major affective disorders can
“retain the cognitive
capacity to understand ... yet fail to appreciate” the
benefits of medication.129 Extrapolating this, it would appear that
the same patient would not be in a position to reliably appreciate or apply to
her or himself
the consequences of her or his treatment decision. Although a
consumer’s choice must be respected, it should not be necessary
to allow a
seriously depressed patient to cross the Rubicon from life to death in an effort
to respect their decisional autonomy,
when that decision may have been made
without full ability to appreciate the salient facts.
From a practical perspective, courts will likely resist condemning those who
provide life-saving treatment after a suicide attempt,
even where the patient
has refused. Policy reasons in favour of presuming suicidal
125 At 819.
126 Skegg, above n 7, at 182.
127 Leo, above n 123, at 137.
128 At 137.
129 Mark D Sullivan and Stuart J Youngner
“Depression, Competence, and the Right to Refuse Lifesaving Medical
(1994) 151(7) Am J Psych 971 at 975.
patients to be incompetent and proceeding in accordance with the best
interests of the patient are strong. The likelihood that such
a patient suffers
from an underlying mental health condition which renders them incompetent to
make life-ending decisions, coupled
with the high chance that they are
subject to fluctuating lucidity, are elements that point towards a reasonable
incompetence. In addition, suicidal ideas and behaviour are often
marked by “acute distress and ambivalence” indicating
clinicians ought to be cautious about the patient’s decisional
Two issues should be flagged. First, if it is ascertained that the patient is
competent and refusing treatment, this must be honoured.
I note, however, the
controversy over whether it is possible to make a “rational”
decision to commit suicide.131 Secondly, it must be remembered that
the best interests test still applies. It may not be in the best interests of
the patient to
provide life-sustaining treatment, and there is no mandate to
save life that is unique to instances of attempted suicide. Indeed,
in the case
of a consumer with numerous co- morbidities, poor quality of life, terminal
illness, chronic pain, the probability of
an anoxic brain or a short life
expectancy prior to the suicide, withholding treatment may still be legally
Ultimately, practitioners are under a duty to provide the necessaries of life
to those in their care. They may be in breach of this
duty by failing to
provide treatment to a suicidal patient who is
130 Navneet Kapur and others “Advance directives and suicidal behaviour”
(2010) 341 BMJ 587.
131 See generally, Theodore C Bania, Richard Lee and Mark Clark “Ethics Seminars: Health Care Proxies and Suicidal Patients” (2003) 10(1) Acad Emerg Med 65.
132 Crimes Act 1961, s 151.
Therefore, “where [an] incompetent patient refuse[s] life-prolonging
treatment, there would be a duty not to respect that patient’s
wishes ... if that was in the patient’s best interests”.133
In respect of those who attempt to commit suicide, I can only warn that
blanket application of the presumption of competency to suicidal
deprive those who are most at risk of their right to timely treatment.
Situations can be imagined where it might even
deprive these people of their
right to life. There are good grounds to promote a change in the statutory
presumption of competency
so that those who attempt to take their lives are
treated by healthcare professionals without the specter of unlawful treatment
in the way of what may otherwise be their legal, ethical and
professional duty to act.134
Under the Care of Children Act 2004 a consent or refusal to consent to medical or surgical treatment, if given by a child of or over the age of
16, has effect as if the child were of full age.135 Commentators agree that this Act does not prevent children under the age of 16 years being able to give valid consent. Indeed, the HDC has noted that “the common law concerning consent by minors ... to medical treatment is
well established as a “competency based” assessment:
Gillick v West Norfolk
133 Kennedy and Grubb, above n 50, at 922.
134 Importantly, the removal of the presumption of competency from suicide attempters would leave open the question regarding the efficacy of advance directives refusing life-saving treatment. Whether an advance directive might apply as it did in Kerrie Wooltorton’s situation is a question that deserves more attention that can be given here. For a good overview of this topic, see: Navneet Kapur and others, above n 132.
135 Care of Children Act 2004, s 36(1).
and Wisbech Area Health Authority”.136 In that HDC
decision, a 14-year- old boy was enabled to consent to a tetanus immunisation
without the practitioner needing to seek
consent from his mother.
According to Gillick a child, regardless of his age, is able to
provide consent if he is “of sufficient maturity and understanding to take
of the seriousness of that in question”.137 In
Canada, this has become known as the “mature minor rule”, whereby a
minor “who can fully understand and appreciate
the nature and consequences
of a proposed medical procedure can give legally valid consent to
treatment”.138 The test of competency is thus the same test as
for an adult.
Where the child (in New Zealand, under the age of 18)139 is found to be incompetent to make a particular treatment decision, it falls to their parent or other legal guardian to provide proxy consent in their best interests. Importantly, the proxy must be competent and “the scope of parental rights is reflective of parental duties towards children ... every child has the right not to be deprived of life”.140 There is a range of instances in which a healthcare provider may be justified to act in the
incompetent child’s best interests without parental consent:
136 Health and Disability Commissioner Decision 01HDC02915 (Health and
Disability Commissioner, Wellington, 2002) at 5.
137 Francis and Johnston, above n 113, at 34. See also, Gillick v West
Norfolk and Wisbech Area Health Authority  UKHL 7;  1 AC 112 (HL).
138 Downie, above n 141, at 212.
139 Care of Children Act 2004, s 8 (“child”).
140 Re J (An Infant): B and B v Director-General of Social Welfare  2
NZLR 134 (CA) at 145-146.
parental neglect (where the parent is not acting in the child’s best
interests), abandonment of the child and inability to find the
There has been controversy around whether a child’s right to refuse
treatment is as absolute as a child’s right to give
informed consent. A
New Zealand commentator has noted that even a competent child may have a
decision that could result in death
or severe disability overridden.142
Although the United Kingdom Court of Appeal has developed the rule that
the refusal of the child patient, of whatever age, will not
prevail in law
against the consent of a person with parental responsibility,143
there are no cases in New Zealand in which this position has been
adopted. Rather, the HDC has indicated that “Gillick should be
followed for a number of reasons, including the importance of "nature" minors
being able to seek or refuse health services
without fear of parental
This has, in turn, found broad support. Notably, the Ministry of Health stated in a 1998 publication that a parent could not overrule their
competent child’s refusal,145 while Fiona Miller recently
wrote that “the
141 Kathryn McLean “Children and Competence to Consent: Gillick Guiding
Medical Treatment in New Zealand” (2000) 31 VUWLR 551 at 556.
142 Keenan “Consent Issues”, above n 30, at 141.
143 Francis and Johnston, above n 113, at 33.
144 Health and Disability Commission, 1998, accessed online at:
<http://www.hdc.org.nz/education/presentations/the-informed- consent-process-and-the-application-of-the-code-to-children> .
145 Ministry of Health Consent in Child and Youth Health: Information for
Practitioners (December 1998) at 13.
child should have the right to consent to, or to refuse treatment, if the
child is assessed as being competent”.146
Instances where the United Kingdom Court of Appeal has overridden the
decision of a child are still worth considering, however, since
circumstances where a creative court could blur the line between
assessing competency and rationality.
They include Re L, where
Lord Donaldson MR found a 14-year-old was incompetent to refuse a blood
transfusion because she did not actually understand
what it entailed.147
And in Re W the same Court of Appeal found that W, a minor, was
competent but overrode her refusal because “it is a feature of anorexia
nervosa that ... it creates a compulsion to refuse
In essence, New Zealand courts are quiet on the issue of children and their capacity to consent. It appears that children who are competent to do so are able to make decisions to the level of their competency. This is recognised by Right 7(3) and firmly established by Gillick. Where a provider believes a decision by a minor or the minor’s guardian to refuse treatment will seriously threaten the health or life of the minor,
the provider “should not hesitate” to save the child’s
146 Fiona Miller “Wake up COCA! Give children the right to consent to medical treatment” (2011) 7 NZFLJ 85 at 88. See also Lucy Thomson “Whose right to choose? A competent child's right to consent to and refuse medical treatment in New Zealand”  CanterLawRw 9; (2001) 8(1) Canterbury Law Review 145;; Tim Grimwood “Gillick and the Consent of Minors: Contraceptive Advice and Treatment in New Zealand” (2009) 40
147 Re L (Medical Treatment: Gillick Competence)  2 FLR 810 (CA).
148 Re W (A minor) (Medical Treatment)  4 All ER 627 (CA).
149 Skegg, above n 80, at 246.
H. Time for Change: Concluding Remarks
Capacity is a difficult thing to measure. The search for a conclusive test
really is the search for the “holy grail”.150 However,
the way healthcare providers assess capacity can improve markedly through
clearer guidance in clinical procedures.
Practitioners who genuinely apply the
tests set out in Re C, Right 7(4) and their clinical guidelines should
not be afraid of liability where their actions were reasonable in the
Although a competent adult patient has an absolute right to refuse even
life-saving medical intervention, in an emergency practitioners
reason to doubt a consumer’s competence should provide life- saving
treatment while taking all reasonable efforts
to determine the competency
status. This is particularly true where there is a strong indication of
incapacity as in the case of
a minor, a patient who has attempted suicide, or a
patient who has recently undergone significant trauma. The New Zealand position
would benefit from clearer statutory guidance and more discussion on this
matter, rather than the current concoction of common law
which is both confusing
and inaccessible to most healthcare professionals. The Code could be amended.
More radically, a rule should
be enacted that permits treatment, to protect the
life of or to prevent irreparable harm to a consumer, where: the
competency is in doubt;; the treatment is in the
patient’s best interests; and a capacity assessment cannot reasonably
carried out without causing harm to the patient.
This would usefully do away with the problem healthcare providers face: the
need to make a capacity assessment based on
150 Sneiderman, above n 42, at 382.
information and in a narrow time frame. It provides a brighter line, protects
the public interest in the preservation of life and
brings into statute what may
only otherwise be found in the doctrine of necessity. Numerous issues exist with
this rule – it
would be necessary to couple it with the requirement that
treatment provided must be strictly necessary, and a capacity assessment
undertaken without unreasonable delay – but perhaps fewer than exist in
the current law.
As substantial a part of the solution may be found in education,
however. There is need for universities and healthcare
employers to broaden the
legal elements of their teaching, and for regulatory bodies to issue clearer and
uniform guidance on the
assessment of and appropriate responses to issues of
capacity.151 This way, even if New Zealand law remains in the throes
of legal uncertainty, practitioners who comply with their regulatory guidance
may well be able to invoke a Clause 3 defence to breaches of the
Ultimately, an emergency healthcare provider who acts without negligence in their assessment of a patient’s capacity, will not be in breach of any legal or ethical duties in their attempts to gain informed consent, to ascertain the patient’s personal views and best interests and to keep the patient reasonably informed. Courts must recognise the disadvantageous position emergency healthcare practitioners find themselves in, and pay homage to the public good performed by their
efforts to save lives where competency is in
151 The British Medical Association and the Law Society have commendably released a joint book entitled Assessment of Mental Capacity: Guidance for Doctors and Lawyers (2nd ed, BMJ Books, London, 2004).