Increase in dementia cases raises legal issues

An increase in the number of people with dementia means New Zealand urgently needs to address gaps in the law concerning mental capacity, a Dunedin researcher says.

Earlier this week the Human Rights Commission released ''This Is Not My Home'', a report on legal and ethical issues around residential care for older people.

The 11 chapters include a contribution from Dunedin lawyer Alison Douglass, which highlighted that there is no legal process in New Zealand governing how people who lack decision-making capacity can lose their liberty to make decisions for themselves.

''The number of people in supported residential or hospital care is likely to grow quite substantially in New Zealand as the community ages and life expectancy increases,'' Ms Douglass said.

''It is an ongoing challenge to devise sufficiently flexible and efficient care, as well as practical legal safeguards, for people likely to need support in deciding where they will live, especially where restrictions are placed on their liberty, even if for their own welfare.''

Ms Douglass - who has previously raised these issues in a report written while the recipient of a Law Foundation research fellowship - said New Zealand's laws governing mental capacity needed revision to create ''liberty safeguards''.

Suggested changes included. -

  • A two-step process before anyone is detained, and ongoing monitoring if they are.
  • Rules to govern who makes such decisions and how they are made.
  • Independent oversight.
  • A code of practice.

''The legal landscape of mental capacity law is fragmented,'' Ms Douglass said.

''A review of law requires a co-ordinated government approach.''

Disability Rights Commissioner Paula Tesoriero said an estimated 4000 New Zealanders are detained in secure dementia units and a further 1000 in residential psychogeriatric facilities.

''Very few of these people have formally consented to being held in these locked facilities, so it is critical that appropriate safeguards are in place to ensure everyone's rights and preferences are respected to the greatest extent possible,'' Ms Tesoriero said.

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