30 May 2022
Chuck Schooner
By email: [FYI request #19332 email]
Ref: CHOIA261
Dear Chuck
Response to your request for official information
Thank you for your request under the Official Information Act 1982 (the Act) on 12 May 2022
for:
1) Can the Minister please provide the definition used by the New Zealand Government
in relation to informed consent?
2) Does a mandate directly oppose a person’s ability to obtain full informed consent
associated with a medical procedure
While I am unable to provide specific legal advice, I hope you find the following information
useful.
For the purposes of health and disability services, the Code of Health and Disability Services
Consumers’ Rights (the Code) specifies that every person undergoing a health procedure has
the rights that are set out in the Code including the right to make an informed choice and to
give informed consent to any procedure, except where any enactment, or the common law.
Or any other provision of the Code provides otherwise. The requirements of informed consent
are at the heart of the Code and trigger a number of other rights in the Code (Rights 5, 6 and
7).
The Code provides that all persons must be presumed to be competent to make informed
choices and give informed consent, unless there are reasonable grounds for believing they
are not competent.
Included in the right to be fully informed is the right to an explanation of the options available,
including an assessment of the expected risks, side effects, benefits of each option. A person
can only give informed consent if they have been fully informed about the procedure.
As has been found in legislation relating to Orders under the Covid-19 Public Health Response
Act 2020, even where there are mandatory requirements in Orders, these are not inconsistent
with the requirements for informed consent. Persons can also make informed decisions
knowing the consequences if they do not consent to medical treatment (such as vaccination
or testing).
The New Zealand Bill of Rights Act 1990 provides that every person has the right not to be
subjected to ‘medical or scientific experimentation’ without that person’s consent and
everyone has the right to refuse to undergo any medical treatment.
Under section 28(3) of the Act you have the right to ask the Ombudsman to review any
decisions made under this request. The Ombudsman may be contacted by email at:
[email address] or by calling 0800 802 602.
Yours sincerely
Chris Hipkins
Minister for COVID-19 Response