Capacity and informed consent to treatment

Under the Mental Health and Wellbeing Act 2022, anyone treating you must get your ‘informed consent’ before giving you treatment.

Under the Mental Health and Wellbeing Act 2022, anyone wanting to give you treatment must first get your ‘informed consent’ before giving you that treatment. Even if you are receiving compulsory treatment, your psychiatrist should still check if you can give informed consent to treatment.

To give informed consent you must have the ‘capacity’ to make decisions. There are principles to help guide decisions about capacity.

If you are on order and your psychiatrist thinks you have capacity, they can still give you compulsory treatment but only if they think it is:

• clinically appropriate
• the least restrictive option

Least restrictive means you need to be given as much freedom as possible.

Informed consent to treatment

Giving informed consent means that you have understood and considered the information you need to make a decision about treatment. Your psychiatrists must provide you with enough information, support, and time to make decisions. This includes providing information about the likely benefits, risks, or effects of 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• you have not withdrawn your consent or suggested you intend to withdraw consent.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 can only give informed consent if you have capacity to do so. Your psychiatrist will think about whether you have the capacity to give informed consent to a particular treatment. Your psychiatrist should start by assuming that you do have capacity.

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 and Wellbeing 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.

  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.

  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.

  Updated 25 August 2023

  Related links
  • Having more say over your treatment
  • Victoria Legal Aid