Arnold, Philip --- "The practitioner knows best? Assessment of patient capacity and responses to refusal of treatment in emergency healthcare" [2013] NZLawStuJl 4; (2013) 3 NZLSJ 23

Last Updated: 29 May 2014

THE PRACTITIONER KNOWS BEST? ASSESSMENT OF PATIENT CAPACITY AND RESPONSES TO REFUSAL OF TREATMENT IN EMERGENCY HEALTHCARE

PHILIP ARNOLD

Introduction

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

interest.

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 other healthcare professionals.

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 knowledge 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 being able to identify the stages in testing capacity. Comparatively, 10 per cent of nurses and 67 per cent of doctors were judged as correct in their knowledge regarding capacity to consent or refuse treatment.³

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 necessarily

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 2008).

incorrect, the statement displays a remarkable divergence between the healthcare provider’s understanding of entitlement to provide medical treatment, and the consumer’s prima facie right to decline medical treatment.

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.

A. Terminology

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 that

5. John A Devereux Australian Medical Law (3rd ed, Routledge-Cavendish, Oxford, 2007) at 205.

“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 consent”.⁷

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 capacity is 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 consent.

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 to

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?” [2011] 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 nonetheless remains a breach of the consumer’s autonomy.

B. Statutory Indicators

1. Protection of Personal and Property Rights Act 1988 (“PPPRA”)

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 “not fully able to manage their own affairs”.¹¹

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 [1].

¹¹ Protection of Personal and Property Rights Act 1988, Long Title.

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 applies.¹²

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 [33]- [34].

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 treatment.¹⁴

2. Mental Health (Compulsory Assessment and Treatment) Act

1992 (MH(CAT)A)

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 where

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) [1992] EWCA Civ 18; [1993] Fam 95 at 113; [1992] 3 WLR

782; [1992] EWCA Civ 18; [1992] 4 All ER 649; [1992] 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 [1998] 3 WLR 936 (CA) at 958[1998] EWCA Civ 1349; , [1999] 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 circumstances and 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 or herself.

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

considered later.

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 [1991] NZHC 2959; [1992] 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 response to a finding of incompetency. On an application to extend a compulsory treatment order, the Court was at pains to note that while “Mrs K’s 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”, which 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 autonomy 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 MH(CAT)A.

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 (whether

¹⁶ Re K [2003] 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 competency. It 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 services. Furthermore, 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 any medical treatment”. Rights litigation now confirms that “everyone” in s 11 means “every person who is competent to consent”.¹⁹

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

incompetent patients.

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 by

²⁰ Above n 13, at 102.

²¹ At 113.

²² Re C (adult: refusal of medical treatment) [1994] 1 WLR 290 (Fam) at 292.

²³ Re MB (Medical Treatment) [1997] 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) [2002] 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 decision.

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

decision:

(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 a decision.

²⁶ At 474.

²⁷ Starson v Swayze 2003 SCC 32, [2003] 1 SCR 722.

²⁸ At 42-43.

29. KR v MR [2004] NZHC 1328; [2004] 2 NZLR 847 (HC) at [50]. This was a determination of competency under the PPPRA.

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 effective.”³⁰

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 Butler-

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.

2. Australia

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 case”.³³

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 to:³⁷

³³ Devereux, above n 5, at 197.

³⁴ At 198.

³⁵ At 199.

³⁶ Re: O (Special Medical Procedure) [2010] FamCA 1153.

³⁷ At [77]-[99].

(1) understand the nature and purpose of the proposed treatment;

^{(2) make an informed decision about the proposed}

treatment;

(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 understanding.³⁸

Importantly, Devereux considers a distinction can be made between three meanings of “understanding”. The first may be described as “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 belief.

3. Canada

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 subject

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 “his condition, the nature and purpose of the treatment, and the relative risks and benefits of undergoing, or not undergoing the treatment”.⁴¹

Although these legislative measures go some way in defining the test for capacity, Sneiderman, Irvine and Osborne note “there is no 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 consequences 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 a 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.

4. England

In their cogent analysis of the test for capacity in the United Kingdom, Kennedy and Grubb draw attention to the “functional test” advocated 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’.

47. Ian Kennedy and Andrew Grubb Medical Law: Text with Materials (3rd ed, Butterworths, London, 2000) at 613.

⁴⁸ Law Commission Mental Incapacity: Item 9 of the Fourth Programme of

Law Reform: Mentally Incapacitated Adults (HMSO, London, 1995) at

613.

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}

cannot:

(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

generally of understanding”.⁵⁰

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 added).

E. Industry Guidelines

Assessing clinical guidelines across the British Columbia Ambulance Service (“BCAS”), Ireland Pre-Hospital Emergency Care Council (“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 guidelines state: “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 hospital”.⁵²

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 status”.

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}

clinical situation?

(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 Incapacity.}

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 to

⁵⁴ Pre-Hospital Emergency Care Council “PHECC Clinical Practice Guidelines: Advanced Paramedics” (2012 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 to request 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 [police]” 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 they ensure an explanation of the person’s condition is given, including an explanation of expected risks, side effects and benefits of each treatment option.

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 arrest”.⁵⁹

⁵⁷ At 52.

⁵⁸ St John New Zealand “Clinical Practice Guidelines 2011-2013” (St John New Zealand, 2011). The Guidelines state that 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}

and

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 to

⁶⁰ At 131.

undertake a full competency assessment, this is a practical and pragmatic approach.

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 as a 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 reasonably 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,

Right 7(4)(c)(ii).

Guidelines fail to ensure paramedics are acting legally when providing treatment to patients who are incompetent to make a specific treatment decision.

Thirdly, despite a positive affirmation in the Guidelines that competence must be presumed, the actual test does not follow this 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 criteria.

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 capacity.⁶⁷

⁶⁴ St John Guidelines, above n 61, at 83.

⁶⁵ Re MB, above n 23, at [34]. Butler-Sloss P is here quoting Bartling v

Superior Court of Los Angeles County (1984) 163 Cal App 3d 186.

66. Fay A Rozovsky Consent to Treatment: A Practical Guide (2nd ed, Little, Brown and Co, Toronto, Canada 1990) at 455-460.

⁶⁷ See 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 being made.

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, if not others.

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: “not an

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 ‘an}
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}

decision effectively?

(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 coercion?

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 the

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 information.⁷³

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 “assessment 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 Zealand consumers also have a right to be free from exploitation or undue influence.⁷⁵

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 [51].

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

Right 2.

covered with empty bottles. She is not initially aware as to date, day or time, but does become orientated to these after some time. She consistently 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 condition.

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 understand it. Her potential lack of capacity appears largely to lie in her inability to apply the information to herself and process it, although this 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 in his 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 refusing.

Case C: Consider the situation of a 16-year-old boy who, having consumed magic mushrooms, is incontinent and unable to make a definitive decision whether 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 part.

F. What Action Can Be Taken Without a Patient’s Informed

Consent?

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 the

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 231.

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 understand, 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 life

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 (4^th) 385 (Que SC).

⁸¹ Secretary of State for the Home Department v Robb [1995] 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. Thus, 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 advance directive.⁸⁵

(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

[2013] 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 welfare guardian”⁸⁶ and a person with Enduring Power of Attorney, although the latter cannot refuse standard lifesaving treatment.⁸⁷

(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 (the 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 Thus, best

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 legal requirement”.⁹³

If it is determined that no person entitled to consent on the consumer’s behalf is available, Right 7(4) effectively implements a 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 “needs, interests 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 patient’s 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 be a breach of Right 7(4)(c)(i) by providing treatment the consumer would refuse if competent.

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 competent”.⁹⁷

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 to ascertain and do that which from the circumstances it appears that he would have done”.⁹⁸

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 patient’s best 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 patient.¹⁰²

The fundamental limitation is that, in an emergency, the doctrine of necessity will not justify action over or above what was strictly required in 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 permanently 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 [1991] UKHL 1; [1990] 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 incapacitated 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 in determining 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 examination should have that direction respected until the patient can be proven incompetent.

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 consumer

¹⁰⁸ Skegg, above n 80, at 245. See also s 48 Crimes Act 1961 “Self-defence

and defence of another”.

109. Robert Francis and Christopher Johnston Medical Treatment: Decisions and the Law (Butterworths, London, 2001) at 31.

^{110 Keenan “Consent”, above n 50, at 109.}

¹¹¹ Re B, above n 25, at [70].

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 considered informed. 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 information”.¹¹³ 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 death.

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 interests”.¹¹⁶

¹¹² Francis and Johnston, above n 113, at 170.

¹¹³ Above n 13, at 115.

¹¹⁴ Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, (2009) 40 WAR

84, at [30].

¹¹⁵ Skegg, above n 7, at 173.

¹¹⁶ Re B, above n 25, at [100].

The following examples provide support for the notion that life-saving treatment should be provided until capacity can be properly assessed: “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 not accepted because the girl lacked time and maturity to consider her options.¹¹⁸

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 or suicidal intent. In the main, if the patient has intentionally brought about their medical crisis, for example by a self-inflicted shooting,

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) [2000] 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 driving factor.¹²¹

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 attempts.¹²²

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 attempt

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 Treatment 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 underlying the 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 Treatment” (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 assumption of incompetence. In addition, suicidal ideas and behaviour are often marked by “acute distress and ambivalence” indicating that clinicians ought to be cautious about the patient’s decisional capacity.¹³⁰

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 permissible.

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 incompetent.¹³²

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 patients may 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 standing in the way of what may otherwise be their legal, ethical and professional duty to act.¹³⁴

G. Children

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 a decision 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: emergency,

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 [1985] UKHL 7; [1986] 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 [1996] 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 parent.¹⁴¹

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 involvement”.¹⁴⁴

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 they indicate 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 treatment”.¹⁴⁸

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 life.¹⁴⁹

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” [2001] 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

^{VUWLR 743.}

¹⁴⁷ Re L (Medical Treatment: Gillick Competence) [1998] 2 FLR 810 (CA).

¹⁴⁸ Re W (A minor) (Medical Treatment) [1992] 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 circumstances.

Although a competent adult patient has an absolute right to refuse even life-saving medical intervention, in an emergency practitioners who have 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 patient’s competency is in doubt;; the treatment is in the patient’s best interests; and a capacity assessment cannot reasonably be 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 limited

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 be 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 Code.

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 doubt.

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).