Patient Capacity

Content:

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.

IN THIS FACT SHEET:

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

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:

refuse standard medical treatment intended to save the donor’s life or prevent serious damage to the donor’s health (s18(1)(c);
consent to electro-convulsive treatment (s18(1d));
consent to surgery or any other treatment to the brain for the purpose of changing the donor’s behaviour (s18(1e)); or
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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Unfitness Driver Notifications

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:

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;

how their condition affects their ability to drive;

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

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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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.

IN THIS FACT SHEET:

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

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.

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