Patient Capacity




Enduring power of attorney

A patient who chooses (or is required) to provide an enduring power of attorney usually only does so under extreme circumstances. The nature of ceding a portion of one’s individual power over one’s health is no small matter, and comes with a significant amount of legislature that any medical practitioner must be able to navigate competently to provide the best (and most legal) level of care to said patient.

This is what you, as a medical practitioner, need to know.



  • What enduring power of attorney is and means for you as a medical practitioner.
  • Details about working with welfare guardians and your responsibilities.

Related content: Everything you need to know about advance care planning


Enduring Power of Attorney

Under the Protection of Personal Property Rights Act 1988 (“PPPRA”) an individual known as the “donor” has the power to formally grant to another person an Enduring Power of Attorney (“EPA”) to act on his or her behalf.

There are two types of EPA. The first is in relation to property rights and as a medical practitioner, you would not normally encounter this type of EPA. There is no requirement that the donor be mentally incapable in relation to this type of EPA; a donor may appoint anyone to act if they wish to do so.

The second type is an EPA in relation to welfare, otherwise known as a “welfare guardian”. The welfare guardian has significant powers, however, these can only be invoked when the donor loses mental capacity. The paramount consideration of the welfare guardian is the promotion and protection of the welfare and best interests of the donor.

Under section 98 of the PPPRA, the significance of the decision to be made on behalf of the donor has a bearing upon how the health practitioner deals with the EPA.

In relation to a significant matter relating to the donor’s personal care and welfare, the attorney can only act if a health practitioner has certified, or the Court has determined, that the donor is mentally incapable. A “significant matter” includes any matter that is likely to have significant effect on the health, wellbeing or enjoyment of life of the donor; for example, a permanent change in the donor’s residence, entering residential care, or undergoing a major medical procedure. (s98(3)(a)).

In respect of any other matter relating to the donor’s personal care and welfare, the attorney must believe on reasonable grounds that the donor is mentally incapable (s98(3)(b)).

The timing of the determination as to mental capacity is important. Clearly there are some medical conditions where capacity may change over time. The relevant time is that at which the decision relating to the donor’s personal care and welfare is being made (s 3A).

A certificate may state that the donor is certified as mentally incapable because of a health condition that is likely to continue indefinitely, in which case no further certificates are required (s98(3B)(a). Alternatively, the certification can be stated to apply for a specified period of time (s98 (3B(b)).

An attorney may, but does not have to, give regard to any advance directive given by the donor (s99A(2)).

An attorney may seek directions from the Court (s101) and the Court can itself appoint a welfare guardian (s12)

Only one welfare guardian may be appointed in relation to any donor unless there are exceptional circumstances (s12(6)). A welfare guardian has to be aged 20 or above (s12(4)).

There are a number of restrictions upon what a welfare guardian can decide; specifically they cannot:

  1. refuse standard medical treatment intended to save the donor’s life or prevent serious damage to the donor’s health (s18(1)(c);
  2. consent to electro-convulsive treatment (s18(1d));
  3. consent to surgery or any other treatment to the brain for the purpose of changing the donor’s behaviour (s18(1e)); or
  4. consent to the donor taking part in any medical experiment, unless it is to save life or prevent serious damage to health (s18(1)(f)).


Current as at 24 October 2018


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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Fitness to drive

Every year, approximately 300 people in New Zealand are killed on our roads, with a further 12,000 injuries reported. Many of these accidents are caused by a lack of fitness to drive by the occupants of the vehicles, suffering from issues such as epilepsy, poor eyesight or inebriation.

Rather than waiting with an ambulance at the bottom of the cliff, ie waiting for road accident victims to be treated in hospitals, doctors can take opportunities to reduce the risk of these fatalities and injuries from happening in the first place by proactively assessing the fitness of their patients to drive—and recommending that they avoid driving if necessary.

The process of doing this can be a confrontational one, but it is important that doctors don’t shy away from it. Taking one dangerous driver off the road could save lives. This is the process that we recommend you follow.


  • When, why and to whom a recommendation to avoid driving should be given.
  • A step-by-step process to giving notice of a failure of fitness to drive.
  • What to do if a patient does not comply with your recommendation.


Firness to drive


Section 18 of the Land Transport Act 1998 places a legal obligation on medical practitioners to report a patient to the New Zealand Transport Agency (“NZTA”) if it appears that they are not medically fit to drive. While this situation will most often confront GPs, the duty to report applies to all medical practitioners. The concern is not only that the doctor comply with their statutory obligation but that this be done in such a way as to minimise the possibility of a complaint and subsequent disciplinary proceedings.

We recommend that if you are faced with a patient who may be unfit to drive you should take the following steps:

  1. Speak to the patient and advise them of your opinion that they should not drive. It may be beneficial to suggest a longer appointment focused on the patient’s fitness to drive and give the patient the opportunity to bring a support person to ensure that any questions or concerns can be addressed.
  2. Send a letter to the patient recording the following details:

(a)   The relevant features of the patient’s condition and that you have discussed this with them on specified dates. For example, in the case of epilepsy, the unpredictability of seizures would be a relevant consideration.

(b)   That you are under a legal obligation to advise the NZTA in the interest of public safety if you believe that a patient’s medical condition may impact on their ability to drive.

(c)   In your opinion, owing to the patient’s condition, it is in the interest of public safety that they should not be permitted to drive a motor vehicle (or motor vehicles of a specified class) OR should only be permitted to drive motor vehicles under such limitations and/or conditions as necessary to facilitate safe operation of a motor vehicle.

(d)   You require confirmation from the patient that they have sent their licence to the NZTA so that it may be revoked (or for limitations to be imposed as appropriate) with a copy of your letter by way of explanation.

If confirmation is not received by a certain date (for example, within seven days) you must assume that the patient is likely to drive in the future and will not surrender their licence voluntarily. In those circumstances you will have no choice but to write to the NZTA giving notice, in accordance with your legal obligations.

You may also wish to invite the patient to discuss this further if there is any issue that is unclear to them.

If the patient does not comply you must write to the NZTA giving notice in accordance with your legal obligations. As long as you give the notice in good faith, you have statutory protection from liability. Good faith would mean that the medical condition must be confirmed (appropriately investigated, diagnosed and recorded in medical notes) and you believe the patient is likely to drive. A letter in the terms set out above is a sensible way of dealing with this as it also records your grounds for believing the patient is not medically fit to drive.

In an emergency situation different considerations will apply. One example is where a patient presents to the emergency department intoxicated and leaves insisting that they are fit to drive. In this situation there is an immediate safety risk to the patient and to the public. You should speak to the patient and advise them that they are not fit to drive. Alternative transport should be arranged. If the patient continues to express an intention to drive, it will be necessary to alert the Police.

The NZTA publication Medical Aspects of Fitness to Drive: A Guide for Medical Practitioners contains detailed guidance relating to fitness to drive and explains the legal requirements to your patient.


Current as at 2 October 2018


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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Advance care planning


An ounce of prevention is worth a pound of cure, and that doesn’t just apply to literal medicine. Some patients choose to proactively plan decisions and intended outcomes for their future health care, assuming that certain conditions come to pass, known as advance care planning. This can provide peace of mind for the patient.

However, it isn’t as simple as it sounds. There are a number of prerequisites an advanced care directive needs to fulfill in order to be carried out—and a lot of the responsibility in legally and ethically actioning said direction falls upon the doctor.

This is what you need to know for ensuring the best outcomes for your patient, their families and yourself.



  • What advance care planning is.
  • How an advance care plan can be initiated by the patient.
  • How to navigate an advance care plan.


advance care planning


There is increasing recognition (Rights 4 and 6 of The Code of Health and Disability Services Consumers’ Rights (“the code”)) that advance care planning forms part of providing an approved standard of care.  Advance care planning can help reduce uncertainty in the limited circumstances under Right 7(4) of the Code or in emergency situations where health professionals need to make decisions on behalf of a person who lacks capacity and has no authorised decision maker.

Advance care planning is the process of discussion and planning for an individual’s health care in the future. This process is between the individual and their health care professional. If the individual wishes, it can also involve the individual’s family or carers. It is an opportunity for the individual to develop and discuss their health care preferences and incorporate these into a plan for future health care. This may result in the individual choosing to write an advance care plan or advance care directive. They may also decide to appoint an Enduring Power of Attorney.

The Code defines an advance directive as a written or oral directive:

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.

Right 7(5) of the Code provides that every consumer may use an advance directive in accordance with the common law. The directive is often referred to as a “living will”.

An advance directive is legally binding under the Code only if a certain standard is met. Before acting in accordance with the advance directive there are a number of steps that you should take to determine whether it meets this standard.

a)      Ensure the advance directive was made without undue influence;

b)      Confirm the patient was competent and fully informed about the consequences of the decision;

c)      Check whether the patient intended the advance directive to apply to the situation before you;

d)      It is also advisable to verify whether the patient had reviewed the advance directive recently; and

e)      In the event of a conflict between the family’s wishes and the advance directive you should seek advice from your colleagues, an ethics committee or NZMII.

An advance care plan is the articulation of an individual’s wishes, preferences, values and goals for future health care. It is the product of the advance care planning process. It should be used to inform decision-making regarding a patient’s health care, in conjunction with measures such as consultation with the patient’s Enduring Power of Attorney. It is not legally binding unless it meets the criteria for an advance directive.


Current as at 19 September 2018


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