Substituted ConsentDr Cordelia Thomas

Associate Commissioner- InvestigationsSarah Royal

Senior Legal Advisor

Presentation outline

This presentation focuses on consent on behalf of– Children– Adults with intellectual impairment– Previously competent adults, including those with

an EPOA or Welfare GuardianA scenario regarding each category of consumer will be provided for discussion

Introduction

• Right 7(2) and section 5 PPPR Act-presumption of competence

• For purposes of Rights 5, 6, 7(1), 7(7) to 7(10), and 10 “consumer” includes a person entitled to give consent on behalf of the consumer

• Code does not prevent a provider doing an act authorised by any other legislation e.g. Mental Health (Compulsory Assessment and Treatment) Act 1992

Children/Young People

Scenario 1

• Amelia (aged 11 years) has brought home from school information about the HPV immunisation (an immunisation to help protect girls against cervical cancer and genital warts)

• The brochure says the most common side effects are injection site pain, redness, swelling, nausea, fainting and, rarely, anaphylaxis

• Amelia hates needles. She says she dislikes boys and has no intention of ever becoming sexually active and does not want the immunisation

• Amelia’s mother considers it is in her daughter’s best interests to be immunised

Legal position• Section 36 Care of Children Act

“A consent, or refusal to consent, to any of the following, if given by a child of or over the age of 16 years, has effect as if the child were of full age:…(b) any medical, surgical, or dental treatment or procedure … to be carried out on the child for the child’s benefit by a person professionally qualified to carry it out.

If the consent of any other person to any medical, surgical, or dental treatment or procedure (including a blood transfusion) to be carried out on a child is necessary or sufficient, consent may be given—(a) by a guardian of the child;”

• Right 7(7) “Every consumer has the right to refuse services…”

Legal position cont.d

• No one particular age at which all children can consent to or refuse health and disability services

• Law in this area demonstrates a trend away from age-related thresholds, and instead focuses on the competence of the individual child (Gillick competence)

• Child should be given information proportionate to his/her ability to understand

• Right 7(2) Presumption of competence• Parent becomes the consumer if child not competent• See Fact Sheet 3, available on www.hdc.org.nz

Legal position cont.d

• ADHB v DEE [2015] NZHC 304 [27 February 2015]• Order that 9 year old child be placed under

guardianship of High Court for purposes of medical treatment for HIV

• Child not aware of diagnosis and not represented by counsel for child

• Held child’s view must be taken into account once made aware of diagnosis (during next 18 months)

• “If John were then to contest his need for medication, that would be significant. It would not be decisive”.

Intellectually Impaired Adult

Scenario 2

• Joshua is 18 years old and severely intellectually impaired. He has the mental age of a 3 year old and lives at home with his mother, Mary

• Joshua is spending a week in respite care at Determine Services, during which time he complains of pain in his toe. The podiatrist is called and diagnoses an ingrown toe nail

• The podiatrist decides, with the agreement of the manager of Determine Services (who has not previously met Joshua), to remove the nail and destroy the nail root to prevent further growth

• Mary complains that her consent was not obtained

Legal position

• Right 7(3)- If Joshua has diminished competence, he should give informed consent to the extent appropriate to his level of competence

• Right 7(4)- If Joshua is not competent, provider may provide services if in his best interests. Should take into account views of suitable persons interested in his welfare e. g. Mary

• Mary has no legal right to consent or refuse consent• Welfare Guardian- could be appropriate in these

circumstances

Welfare Guardian

“S12 Court may appoint welfare guardian(2) A court shall not make an order under subsection (1) unless it is satisfied—(a) that the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and(b) that the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person.”

Older Adult

Scenario 3

• Myrtle is 91 years old. She is living in a rest home because she has had a stroke and is physically disabled. Myrtle is able to communicate with some difficulty and is, at times, confused

• In 2010 Myrtle executed an EPOA appointing her daughter Sarah as her EPOA

• When Sarah arrives to visit her mother, the rest home clinical manager asks her to agree to a change in Myrtle’s medication and also to sign a DNR order

Legal position • Is Myrtle competent? If so she should give consent for

herself• Competence- section 94 PPPR Act

“(2) For the purposes of this Part, the donor of an enduring power of attorney is mentally incapable in relation to personal care and welfare if the donor—(a) lacks the capacity—

(i) to make a decision about a matter relating to his or her personal care and welfare; or(ii) to understand the nature of decisions about matters relating to his or her personal care and welfare; or(iii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or

(b) lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare.”

Legal position cont.d

• If her competence is in doubt she should be assessed by a registered health practitioner and a medical certificate completed in the Form provided in the PPPR Regulations

• For duty to assess see HDC decision 11/00647• If EPOA has been activated, attorney cannot refuse standard

medical treatment (S18 PPPR Act) but can chose between options

• Attorney cannot make an advance directive under Right 7(5)• If CPR is clinically inappropriate, it should not be provided-

clinician should make that decision• See Fact Sheets 1 & 2, available on www.hdc.org.nz