Investigation Highlights The Importance Of Ensuring Adequate Consent For Intellectually Impaired Patients

Health and Disability Commissioner Morag McDowell today released her findings in an investigation that highlight the importance of adequate consent protocols for intellectually impaired patients.

Ms McDowell found New Zealand Family Planning Incorporated (Family Planning) in breach of the Code of Health and Disability Services Consumers’ Rights (the Code) for failing to have in place adequate protocols in place to support patients with intellectual impairments to make decisions.

This case concerns a young person diagnosed with fetal alcohol spectrum disorder (FASD) and attention deficit hyperactivity disorder (ADHD). When she was 13 years old, she had a contraceptive implant inserted with the support of her family.

When the young person was 16, she consulted a nurse at Family Planning to have the implant removed because she was unhappy with its side effects. Despite a family member requesting not to remove the implant until she was able to provide the nurse with information about the young person’s impairment, the nurse removed the implant and gave the young person condoms for ongoing contraception.

The young person’s impairment meant she had the mental capacity of a child, was unable to understand the consequences of sexual conduct and was at risk of sexual exploitation.

Health and Disability Commissioner, Morag McDowell considered that Family Planning did not have adequate protocols in place to deal with the situation of assessing capacity in a young person with intellectual impairment. Its staff failed to recognise the red flags that should have led to a delay in removing the implant.

"There is a difference between a competent young person under 16 years of age who is seeking to obtain contraception, as compared to a young person over 16 with diminished competence who currently has effective contraception but wants to remove that protection with no other appropriate alternative in place."

"Providers of health and disability services need to assess the capacity of people with neurocognitive disabilities to consent in the ordinary way, using the necessary criteria. Providers should also have the knowledge and skills to identify when in-depth assessments may be necessary to fully understand how well a person with such impairments functions."

While Ms McDowell was critical of the nurse’s conduct, she considered that the systemic issues at Family Planning affected her care of the young person.

"The nurse doesn’t appear to have fully understood the implications of removing the implant for the young person and her family, the impact of intellectual disabilities and consent and the value in working with/listening to families to assist with decision making and providing safe care."

Ms McDowell recommended that the nurse undergo training on informed consent and assessment of competence.

She also recommended that Family Planning arrange ongoing regular refresher training for staff on the issues raised in the report, and that they revise their guidelines and policies regarding assessing patients’ ability to make safe decisions or whether they require further support from family/whānau.

Due to the age and vulnerability of the patient in this case, a summary of the Commissioner’s report has been published on our website.

The case summary is available on the HDC website.

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