Medical decision making on behalf of the incapacitated elderly

Abstract

This thesis describes the law governing medical decision making on behalf of the incapacitated elderly in New Zealand, especially in relation to standard medical treatment and participation in medical experiments. It compares legislation in New Zealand with legislation in England and New South Wales, and suggests ways in which New Zealand's main piece of legislation, the Protection of Personal and Property Rights Act 1988 (PPPR Act), may be amended in order to promote and protect the rights and welfare of incapacitated adults more effectively.

Most of the medical decisions made on behalf of the incapacitated elderly are made by those administering the treatment using common law justifications for their actions. Decisions made under the common law must be made in the best interests of the person, but such decisions lack objectivity and depend on the views of the person making the decision. Some decision makers have very negative perceptions of the elderly and those with disabilities, and their decisions may be biased. Other, rights-based decision making may confer more protection upon incapacitated adults.

The PPPR Act closely resembles the common law, but its purpose is to promote and protect the personal and property rights of incapacitated adults. It allows decision making by those appointed by the person, and by those appointed by the Family Court. Section 18(1) places limitations on their powers to refuse consent to standard medical treatment which is intended to save the person's life or prevent serious damage to their health (s.l8(1)(c)); and to consent to participation in medical experiments (s.18(1)(f)). Both these provisions may cause confusion for designated decision makers. The person may be subjected to forms of treatment he or she may have refused while competent, and may be deprived of treatment he or she might have consented to. Some amendments to the Act may clarify the situation.

The rights of incapacitated adults may be strengthened by widening the scope of the Act to impose duties on all those who care for them; to confer powers to make some decisions on family members if there is no other person who can lawfully make decisions on their behalf; and to create the office of a Public Guardian.