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Patient Capacity

 

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Advance Care Planning

 

Advance care planning is when a patient makes a plan for their future healthcare, in consultation with their doctor or another healthcare professional. It allows the patient to ‘have a say’ should they find themselves subsequently in circumstances where their health has declined and they are unable to participate in discussions about their care.

 

There are certain circumstances which should trigger a medical practitioner to initiate a conversation with a patient about advance care planning. For example if a patient is diagnosed with a life-limiting condition, or is admitted to hospital with a chronic condition, or (of particular importance) where a patient has early cognitive impairment.

 

Advance care plans are usually documented, for example by way of an enduring power of attorney (EPA), and/or by writing out their decisions and preferences for future healthcare in a signed statement, known as an advance directive.

 

See below for information about EPAs and advance directives.

 

advance care planning

 

Current as of March 2024

 


For more information about advance care planning and directive, get in touch with NZMII’s dedicated medico-legal advisory team.

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Enduring Power of Attorneys and Welfare Guardians

 

An enduring power of attorney (EPA) gives a person the power to make decisions on another person’s behalf, in particular circumstances. A welfare guardian appointed by the Court is also given similar powers. This factsheet discusses EPAs and welfare guardians.

 

EPA for Personal Care and Welfare

There are two types of EPAs; EPA for Property, and EPA for Personal Care and Welfare. It is the latter which is relevant to doctors when providing medical care. An EPA for Personal Care and Welfare comes into effect if the person who has made the EPA (the “donor”) becomes “mentally incapable”. It allows decisions about the donor’s health and welfare to be made by the appointed person (the “attorney”).

 

Mental incapacity

A person is considered mentally incapable if they lack the capacity:

  • to make a decision about a matter relating to their personal care and welfare; or
  • to understand the nature of those decisions; or
  • to foresee the consequences of making those decisions (or of failing to make those decisions); or
  • to communicate those decisions to others.

 

It must be remembered:

  • a person is presumed to have capacity, unless proven otherwise;
  • mental capacity must be assessed at the time the attorney proposes to make or makes a decision on a matter, and in relation to the matter concerned.

 

The requirement that capacity be assessed ‘in relation to the matter concerned’ refers to how different decisions require different levels of capacity. For example, a person may be deemed to have sufficient capacity to consent to taking antibiotics, but not to undergoing high-risk surgery.

 

What decisions can an attorney make?

An attorney can make decisions relating to the donor’s personal care and welfare, subject to certain conditions and restrictions. Importantly, section 98 of the Protection of Personal and Property Rights Act 1988 (the Act) provides that an attorney must not act in respect of:

  • A “significant matter” without a medical certificate or court order that the donor is mentally incapably. A “significant matter” is “a matter that has, or is likely to have, a significant effect on the health, well-being, or enjoyment of life of the donor”;
  • Any other matter unless the attorney believes on reasonable grounds that the donor is mentally incapable.

 

In terms of section 98, it is important too for an attorney to be mindful that the donor’s mental incapacity may be fluid. A certificate of mental incapacity given previously will not necessarily mean that the donor remains mentally incapable for the purposes of the Act. It is important therefore that the attorney turns their mind to the question of the donor’s mental incapacity on each and every occasion the attorney is considering making a decision on the donor’s behalf. A good example is the donor who from time to time suffers from delirium, who may be mentally incapable one day but perfectly capable the next. This of course is significant for medical practitioners. For example, if a practitioner considers that a patient/donor is at any given time mentally capable, then it is for the donor to make decisions about his or her medical care, not the attorney.

 

Furthermore, section 18 prohibits an attorney from:

  • refusing consent to the administration of any standard medical treatment or procedure intended to save the donor’s life or to prevent serious damage to the donor’s health; or
  • consenting to electro-convulsive treatment; or
  • consenting to surgery on the donor’s brain designed to destroy any part of their brain or any brain function for the purpose of changing the donor’s behaviour; or
  • consenting to the donor taking part in any medical experiment, unless it is to save the donor’s life or prevent serious damage to the donor’s health; or
  • requesting on behalf of the donor, the option of receiving assisted dying under the End of Life Choice Act 2019.

 

Specific conditions and restrictions may also be recorded by the donor in the EPA itself.

 

The Act also provides that attorneys must, as far as practicable, consult with anyone named in the EPA and with the donor (where possible), and always act in the donor’s best interests.

 

A donor may have an advance directive which sets out in advance the treatment that the donor wants, or does not want,  should they become unwell in the future and lose the capacity to make decisions about their care. (Information about Advance Directives can be found in NZMII’s Advance Directives factsheet). Attorneys may have regard to an Advance Directive, subject to consultation, except to the extent that it requires the attorney to act contrary to the provisions of section 18.

 

Medical certificate of capacity

As a health practitioner, you may be requested to provide a medical certificate assessing a patient’s mental capacity. This may be to activate an EPA, or because an attorney is making a decision on a “significant matter”. It also may be required to assist the court in making an order appointing a welfare guardian (covered below). You may only complete a certificate assessing capacity if it is within your scope of practice to do so.

 

There are a number of requirements for what a medical certificate must contain. These are set out under section 5 of the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008. The full list of requirements can be found at this link: https://www.legislation.govt.nz/regulation/public/2008/0310/latest/DLM7189203.html

 

Welfare Guardians

Under section 12 of the Act the court may make an order appointing a welfare guardian to a person, provided that the person in respect of whom the order is made “wholly lacks the capacity to make or communicate decisions” relating to his or her personal care and welfare.

 

A welfare guardian has authority to make and implement decisions on that person’s behalf in respect of their personal care and welfare. They are bound by the powers and duties of section 18 of the Act (see above), and must act in the best interests of the person and consult with them where possible.

 

What if a patient has both an EPA and a section 12 order?

Where a patient has both an EPA and a section 12 order, there are two points to be aware of:

  • a section 12 order is sufficient evidence of a welfare guardian’s authority to make decisions on that person’s behalf, regardless of whether an EPA has been activated; and
  • a section 12 order is binding on any attorney appointed under a person’s EPA. Therefore if a patient has both an activated EPA as well as a current court order and a conflict arises between the two, the court order prevails.

 

Encountering an EPA or welfare guardian when providing medical care

When dealing with an EPA or welfare guardian, you should:

  • determine whether the EPA or court order is activated/in force; and
  • confirm who the attorney or welfare guardian is.

 

For an EPA, you should expect to see a medical certificate on the patient’s clinical records which activates it. For a court order, there will be an expiry date recorded on the order itself. (After this date the welfare guardian must cease to act).

 

The EPA or court order will also name the attorney or welfare guardian. You should be careful to properly identify the attorney or welfare guardian, for example by sighting that person’s drivers licence or passport.

 

What should I do if a patient asks me to be their attorney?

What should you do if a patient asks you to accept appointment under an EPA? MCNZ has advised that in most instances, becoming a patient’s attorney is unwise as the medical practitioner could be perceived to have exerted undue influence on the patient. It is recommended then that you err on the side of caution by not accepting such an appointment.

 

Current as of March 2024

 


For more information about your responsibilities while working with enduring power of attorney, get in touch with our medico-legal advisors now.

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Advance Directives

 

This factsheet focuses on Advance Directives and what doctors need to consider should they encounter an Advance Directive when providing medical care.

What is an Advance Directive?

An Advance Directive sets out in advance the treatment and care that a patient wants, or does not want, should they become unwell in the future and lose the capacity to make decisions about their care. Every patient has the right to make and use an Advance Directive.

 

Under the Code of Health and Disability Services Consumers’ Rights (the Code), an Advance Directive is defined as:

 

“…a written or oraldirective

(a) by which a consumer makes a choice about a possible future health care procedure; and

 

(b) that is intended to be effective only when he or she is not competent…”

 

Assisting a patient to create an Advance Directive

The initiative to create an Advance Directive may come from the patient, or the conversation may be started by the medical practitioner. If a patient does seek your help in creating an Advance Directive, the first step is to assess whether the patient is mentally competent to do so. Information about assessing capacity can be found in NZMII’s Enduring Power of Attorneys and Welfare Guardians factsheet.

 

You will need to ensure that the patient is properly informed about their treatment preferences. For example, do they have an informed understanding of what the treatment is, the risks and benefits of such treatment, any side effects, the cost of the treatment, and the possible interventions that may be required when undergoing such treatment?

 

It is recommended that you check with the patient whether there are family members or other significant people in their life that they may wish to be involved in the process. The patient should also be encouraged to undertake regular reviews of their Advance Directive to ensure it remains aligned with their preferences for future healthcare.

 

Following an Advance Directive

Doctors are obliged to follow the wishes set out in an Advance Directive, unless there is reason to question its validity. Importantly however, where an Advance Directive indicates a positive preference for a particular treatment or service, a doctor cannot be required to provide that treatment or service where it is not indicated, offered, or available.

 

The HDC has provided five points for doctors to consider when deciding whether an Advance Directive is valid and should be followed:

 

  1. Was the patient competent when they made the Advance Directive?
  2. Did the patient make the decision of their own free will (i.e. free from undue influence)?
  3. Were they sufficiently informed to make the decision?
  4. Did they intend their Directive to apply to the present circumstances, which may be different from those anticipated?
  5. Is the Advance Directive out of date?

 

These questions can be hard to answer, especially where the patient is no longer competent. However, where possible, doctors should take reasonable steps to ascertain the patient’s views,  or that of a person authorised to make decisions on the patient’s behalf (for example, the patient’s attorney if they have an activated Enduring Power of Attorney for Personal Care and Welfare). It should be noted that proxies such as welfare guardians or attorneys under an EPA are not permitted to refuse consent to standard medical treatments or procedures intended to save the patient’s life or prevent serious damage to health.

 

If concerns remain as to whether the Advance Directive is valid and should be followed, Coles Medical Practice recommends that doctors err on the side of preservation of life, and that Right 7(4) of the Code may then apply.[1]

 

It should be noted that an Advance Directive does not override the ability for a patient’s medical practitioner to authorise compulsory treatment, where the patient is subject to a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[1] (4) Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where –

  • it is in the best interests of the consumer; and
  • reasonable steps have been taken to ascertain the views of the consumer; and
  • either,—
    • if the consumer’s views have been ascertained, and having regard to those views, the provider believes, on reasonable grounds, that the provision of the services is consistent with the informed choice the consumer would make if he or she were competent; or
    • if the consumer’s views have not been ascertained, the provider takes into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise the provider.

 

Current as of March 2024


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Unfit Driver Notifications

Firness to drive

 

Where a patient has a medical condition that affects their ability to drive safely, they pose a risk to themselves and other road users. As a health practitioner, you play a crucial role in keeping users of the land transport system safe. This fact sheet discusses what to do should you have concerns about a patient’s fitness to drive.

 

Obligations under the Land Transport Act

Broadly there are two circumstances in which your obligations under the Land Transport Act may be triggered.

 

The first is where you are required to assess a patient’s fitness to drive because the patient is required to obtain a medical certificate to do so. For example, if they are 75 years plus and are applying for or renewing their licence, or if they are applying for or renewing a heavy vehicle licence and it has been five years since their last medical certificate, or if Waka Kotahi has asked them to provide one.

 

The second situation is where through your interactions with the patient, or perhaps more commonly a family member, you form the view that the patient is likely to drive and may be unfit to do so. In this situation you have a duty under the Land Transport Act to notify Waka Kotahi of your concerns in writing. If information about a patient has come from a third party such as a family member, it will be important to schedule a consult with the patient so that you can assess  for yourself whether there are grounds for a notification to Waka Kotahi.

 

In examining the patient or making an assessment you should consider the guidance provided by Waka Kotahi in its booklet, Medical Aspects of Fitness to Drive: A Guide for Medical Practitioners.

 

Process where concerns arise about a patient’s fitness to drive

If it is your assessment that the patient is likely to be unfit to drive (for a specific length of time or permanently), or that they should drive with certain limitations, the next step is to inform the patient of your opinion and the reasons for it. This will likely be confronting for the patient and it may be appropriate for a support person of their choosing to be present.

 

The advice should be recorded in writing. It is a good idea to do this by way of a letter to the patient.

 

If the patient does not accept the advice or you consider it likely that they will continue to drive anyway, a notification must be made to Waka Kotahi. The following information will need to be provided:

 

  1. a description of the patient’s mental or physical condition which you consider renders them unfit to drive or means they should only drive subject to limitations;

 

  1. how their condition affects their ability to drive;

 

  1. your communications with your patient regarding their fitness to drive; and

 

  1. your concern that they are likely to drive.

 

Your notification will require disclosure of your patient’s personal health information. Under the Land Transport Act, provided your notification is made in good faith you will not be subject to civil or professional liability because of any disclosure of personal health information in the notice.

 

Possible actions by Waka Kotahi

After receiving a notification under the Act, Waka Kotahi may require the patient to undergo further examination by an appropriate practitioner nominated by them, impose licence conditions, or suspend or revoke the patient’s licence.

 

Emergency situation

In an emergency situation different considerations and processes apply. One example may be where a patient presents to the Emergency Department intoxicated and then tries to leave, insisting that they are fit to drive. This poses an immediate safety risk to the patient and to the public. You should speak to the patient, advise them that they are not fit to drive and that alternative transport can be arranged. If the patient continues to express an intention to drive, the next step is to call the Police.

 

Further guidance on unfit driver notifications can be found on Waka Kotahi’s website at the following link:

 

https://www.nzta.govt.nz/driver-licences/getting-a-licence/medical-requirements/information-for-health-practitioners/guidance-on-unfit-driver-notifications/

 

Current as at 11 May 2023


In short, the opportunity to reduce the risk on our roads by assisting a patient with alternatives to potentially dangerous driving is one that all doctors should take. However, it doesn’t always come without confrontation, so if you are concerned about a potential complaint following your recommendation to avoid driving, get in touch with NZMII’s medico-legal advisory team now for further advice and peace of mind.

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