Alison Douglass, Greg Young and John McMillan

Assessment of Mental Capacity: A New Zealand Guide for Doctors and Lawyers

ISBN: 9781776562947

Available for pre-order only. Available from 12th Dec 2019

December 2019

The ability to make decisions and take actions that influence our life is critically important and ranges from simple everyday choices about what to have for breakfast, to far-reaching decisions about health care, personal or financial matters. When our ability to make our own decisions is impaired, whether due to dementia, learning or intellectual disability, mental illness or brain injury, that might mean we are not able to make decisions for ourselves. So, there is a need for clear assessment processes to help decide whether someone has the capacity to make their own decisions, who should make decisions on their behalf, and on what basis such decisions should be made.

The guidance in this book has been written to serve the needs of doctors, lawyers, health professionals, families and whānau. It was written by experts from a range of disciplines including law, medicine and ethics, and is based on the Toolkit for Assessing Capacity. It combines an explanation of the law, case studies and practical guidance for health and legal professionals about capacity, how it is assessed, and what supporting people with impaired capacity means in practice.

Alison Douglass is a Dunedin barrister specialising in health and disability law, and regularly appears as court-appointed lawyer for people with impaired capacity. She is an honorary senior lecturer at Bioethics Centre, University of Otago, and the 2014 recipient of the New Zealand Law Foundation International Research Fellowship.

Dr Greg Young is a consultant psychiatrist at Capital Coast DHB.  He is a clinical senior lecturer in the Department of Psychological Medicine, Wellington School of Medicine and an associate of the Bioethics Centre, University of Otago.

Professor John McMillan is an Ethicist at the Bioethics Centre, University of Otago. He is editor-in-chief of the Journal of Medical Ethics and was a member of the working party that wrote the Nuffield Council on Bioethics report Dementia: Ethical Issues.


Justice Susan Glazebrook
Judge Mary O’Dwyer
Professor Bruce Arroll


Chapter 1: Capacity Concepts

Chapter 2: Capacity Law and the PPPR Act
Commentary: Taking Capacity Seriously in England’s Experience
Alex Ruck Keene and Nuala Kane

Chapter 3: Capacity and Health Care
Commentary: Fusion or Confusion? Capacity and its role in involuntary Mental Health legislation in light of international developments
Alex Ruck Keene and Nuala Kane

Chapter 4: Supported Decision making
Commentary: Cultural diversity and the role of interpreters
Ben Gray
Commentary: Unconscious bias and clinical care
Angela Ballantyne and Chris Reid

Chapter 5: Māori Perspectives
Author: Joanne Baxter
Commentary: Tikanga in law
Jacinta Ruru

Chapter 6: Consent to Health Care
Commentary: Consent and refusal – support for legal capacity
Alex Ruck Keene

Chapter 7: Liberty and Placement in Care
Commentary: Is there a suitable framework for the Deprivation of Liberty in New Zealand?
Mark Fisher

Chapter 8: Financial Capacity
Commentary: Assessing Financial Capacity
Jane Casey

Chapter 9: Capacity and Personal Relationships
Commentary: Capacity to marry: applying the Toolkit in practice
Kathryn Lellman
Commentary: Assessing capacity to consent to sexual relationships: A Psychologist’s Perspective
Kay Cunningham

Chapter 10: Capacity to Make a Will
Commentary: Does the ‘Golden Rule’ Apply in New Zealand?
Nicola Peart
Commentary: Medical Aspects of End-of-Life Testamentary Capacity
Gary Cheung

Chapter 11: Substance Addiction
Commentary: Challenges for clinicians under the Substance Addiction (Compulsory Assessment and Treatment) Act: Two different perspectives
Darren Malone and Katharine Shaw
Commentary: Human rights and insight, and a view from the Bench
Kate Diesfeld, Phil Recordon and Sarah Watts

Chapter 12: Advance Decisions
Commentary: When is an advance directive valid ‘in accordance with the common law?’
Ron Paterson


Chapter 13: Professional Guidance for Lawyers

Chapter 14: Professional Guidance for Health Practitioners


Appendix A: A Toolkit for Assessing Capacity

Appendix B: Legislation and International Human Rights Conventions

Appendix C: Guidelines and Practice Note under the PPPR Act

Appendix D: Code of Conduct for Expert Witnesses

Appendix V: Template letter to a health practitioner for a capacity assessment

Appendix W: Prescribed forms and standard explanations for EPOAs

Appendix X: Clinical opinion of capacity

Appendix Y: Certificates of mental incapacity

Appendix Z: Report of medical practitioner form


Table of cases

Table of statutes


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Available for pre-order only. Available from 12th Dec 2019
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