3.3 Code of Health and Disability Services Consumers' Rights & Informed Consent

3.3 Code of Health and Disability Services Consumers' Rights & Informed Consent

Overview of the Health and Disability Commissioner (HDC) Code

In Aotearoa New Zealand, consumer rights in healthcare are governed by the Code of Health and Disability Services Consumers' Rights (commonly referred to as 'the Code'). Enacted as a regulation in 1996 under the Health and Disability Commissioner Act 1994, the Code establishes ten legally enforceable rights for all health and disability consumers and imposes corresponding legal duties on all health care providers—including registered nurses, doctors, midwives, allied health professionals, and healthcare organizations.

The Code applies across all public and private healthcare settings in New Zealand. Its primary purpose is to protect consumer autonomy, ensure high standards of clinical practice, and provide a fair, independent mechanism for investigating consumer complaints.

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Summary of the 10 Consumer Rights

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Right 7: Deep Dive into Informed Consent and Right to Refuse

Right 7: Right to Make an Informed Choice and Give Informed Consent is the cornerstone of clinical autonomy in New Zealand healthcare. Consent is an ongoing process of communication, not merely obtaining a signature on a form.

Essential Requirements for Valid Informed Consent

For consent to be legally and ethically valid, four criteria must be satisfied:

1. Competence (Capacity): The consumer must possess decision-making capacity for the specific intervention.
2. Adequate Information: The consumer must receive sufficient information (under Right 6), including expected benefits, material risks, side effects, alternative options, and consequences of non-treatment.
3. Comprehension: The consumer must understand the information provided, requiring effective communication tailored to their cognitive and linguistic needs (Right 5).
4. Voluntariness: The decision must be made freely, without coercion, duress, or undue pressure from healthcare staff or family members.

Right to Refuse Treatment

Under Right 7(7), every competent adult consumer has the absolute legal right to refuse medical treatment or withdraw consent at any time, even if that refusal will result in severe physical harm or death (e.g., a competent adult refusing blood transfusions or life-prolonging mechanical ventilation). Nurses must respect this decision, ensure the consumer fully understands the consequences of refusal, document the discussion thoroughly, and continue providing supportive, non-judgmental palliative care.

Form of Consent

• Verbal / Implied Consent: Acceptable for routine, low-risk nursing activities (e.g., taking blood pressure, administering routine oral medications).
• Written Consent: Mandatory for high-risk interventions, general anesthesia, surgical procedures, blood product transfusions, or participation in clinical trials.

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Assessment of Decision-Making Capacity

Under New Zealand law, every adult consumer is presumed competent to make informed decisions unless proven otherwise. Competence is decision-specific and time-specific: a patient may lack capacity to make complex surgical decisions due to temporary delirium, yet retain capacity to decide what to eat or who can visit.

Assessing Capacity

When assessing capacity, nurses evaluate whether the consumer can:

1. Understand the nature, purpose, and risks of the proposed treatment.
2. Retain the information long enough to make a decision.
3. Weigh the information and consider potential consequences.
4. Communicate their decision clearly (verbally, in writing, or via gestures).

If a consumer lacks capacity (e.g., due to severe dementia, unconsciousness, or acute psychosis), consent must be sought from a legally appointed proxy.

Legal Proxies in New Zealand

• Enduring Power of Attorney (EPOA) for Care and Welfare: A legally registered document where a consumer appoints an attorney to make personal care decisions only when the consumer loses capacity.
• Welfare Guardian: A court-appointed guardian under the Protection of Personal and Property Rights Act 1988 (PPPR Act).
• Note: Family members (spouses, adult children, parents) do not automatically have legal authority to give or withhold consent for an adult patient in New Zealand unless held under a formal EPOA or Welfare Guardianship.

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Emergency Treatment Exceptions: Clause 3 of the Code

When an adult consumer lacks capacity and urgent medical treatment is required, Clause 3 of the Code (Provider Compliance) permits healthcare providers to deliver emergency treatment without consent under strict criteria:

                     ┌──────────────────────────────────────────────┐
                     │  EMERGENCY INTERVENTION (CLAUSE 3 CONDITIONS) │
                     └──────────────────────┬───────────────────────┘
                                            │
       ┌────────────────────────────────────┼────────────────────────────────────┐
       ▼                                    ▼                                    ▼
┌──────────────┐                   ┌──────────────────┐                ┌──────────────────┐
│ LACKS        │                   │ NO LEGAL PROXY   │                │ BEST INTERESTS   │
│ CAPACITY     │ ───► AND ───►     │ AVAILABLE        │   ───► AND ──► │ Treatment is     │
│ Patient      │                   │ (No EPOA/Welfare │                │ necessary to save│
│ unconscious  │                   │ Guardian present)│                │ life or health   │
└──────────────┘                   └──────────────────┘                └──────────────────┘

1. The consumer is currently unable to give informed consent.
2. No legally authorized proxy (EPOA or Welfare Guardian) is available.
3. The proposed procedure is in the best interests of the consumer (to prevent death, severe suffering, or permanent impairment).
4. The provider has taken reasonable steps to ascertain the consumer's known expressed wishes (e.g., checking advance directives or discussing with family).

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Role of the Health and Disability Commissioner and Advocacy Service

The Health and Disability Commissioner (HDC)

The HDC acts as an independent Ombudsman for health consumers. The Commissioner investigates alleged breaches of the Code, makes findings, requires corrective action plans, and can refer serious breaches to the Director of Proceedings for disciplinary action before the Health Practitioners Disciplinary Tribunal (HPDT).

Nationwide Health and Disability Advocacy Service

Under the HDC Act, consumers have free access to independent advocates. Advocates support consumers in resolving concerns directly with health providers, drafting complaint letters, and navigating dispute resolution without taking sides or offering legal representation.