Capacity and informed consent to treatment

Under the Mental Health Act 2014, anyone wanting to give you treatment must first get your ‘informed consent’ before giving you that treatment. To give informed consent you must have the ‘capacity’ to make decisions. There are principles to help guide decisions about capacity.

You can only be given compulsory mental health treatment if you:

• are on a treatment order
• do not have capacity to give informed consent to treatment, or are refusing the proposed treatment, and
• the authorised psychiatrist is satisfied the treatment they proposed is the least restrictive treatment.

For some specific treatment, such as electroconvulsive treatment and neurosurgery, a different test and process apply before you can be given that treatment against your will. See Electroconvulsive treatment.

Informed consent to treatment

You have given informed consent if you:

• have capacity to give informed consent (agreement) to the treatment proposed
• have been given adequate information to make a decision
• have been given a reasonable opportunity (time) to make the decision
• are able to consent freely, without pressure by anyone, and
• you have not withdrawn your consent or suggested you intend to withdraw consent.

An authorised psychiatrist will decide if you are able to consent or not.

Capacity to make decisions

You have capacity to give informed consent to a decision if you:

• understand the information given about that decision
• remember that information
• can use and weigh up that information
• can communicate the decision you make.

Guidelines for determining capacity

The Mental Health Act includes principles to help guide decisions about whether or not you have capacity.

These principles state that:

• capacity to give informed consent is specific to the decision that needs to be made
• it should be presumed that a person has capacity to give informed consent
• a person’s capacity to give informed consent may change over time
• it should not be assumed that a person lacks capacity to give informed consent based only on their:
  • age
  • appearance
  • condition
  • behaviour.
• a decision that a person lacks capacity to give informed consent should not be made only because the person makes a decision that could be considered unwise.

The authorised psychiatrist should assess your capacity at a time and in an environment in which your capacity can be most accurately assessed.

How an advocate can support you

If you are receiving compulsory treatment, you may feel you need help to understand and act on your rights in the mental health system.

Our independent advocates can:

• listen to what you want and talk to you about your options
• give you information and support to act on your rights
• work with you so you can have your say
• refer you to other services if needed.

Find out more about how we can support you.

We do not provide legal representation or specific advice about how the law applies in your particular situation. If you require legal help, ask your advocate to put you in touch with Victoria Legal Aid.