Key messages

  • All people are presumed to have capacity to give informed consent to treatment or medical treatment regardless of their age or legal status under the Mental Health Act 2014.
  • The informed consent of a person must be sought before treatment or medical treatment is given to a person in accordance with the Mental Health Act 2014.

The informed consent of a person must be sought before treatment or medical treatment is given to the person under the Mental Health Act 2014.

All people are presumed to have capacity to give informed consent to treatment or medical treatment regardless of their age or legal status under the Mental Health Act.

The Mental Health Act sets out:

  • the requirements for informed consent
  • the circumstances in which treatment can be provided to a patient without the patient’s informed consent and the process that must be undertaken before providing that treatment
  • the process for providing medical treatment to a patient who does not have capacity to give informed consent to medical treatment.

Informed consent

The informed consent of a person must be sought before treatment or medical treatment is given to a person in accordance with the Mental Health Act.

A person gives informed consent if they:

  • have capacity to give informed consent to the treatment or medical treatment proposed
  • have been given adequate information to enable the person to make an informed decision
  • have been given a reasonable opportunity to make the decision
  • have given consent freely without undue pressure or coercion by any other person
  • have not withdrawn consent or indicated any intention to withdraw consent.

Capacity

The person seeking informed consent of another person to a treatment or medical treatment must presume that the other person has the capacity to give informed consent.

This means that everyone must be presumed to have capacity to make decisions about their treatment or medical treatment, regardless of their age (e.g. young people or older persons) or whether they are a patient under the Mental Health Act.

The Mental Health Act contains a number of guiding principles to assist a person who is required to determine whether a person has capacity to give informed consent. See presumption of capacity.

Adequate information

A person has been given adequate information to make an informed decision if:

  • they have been given an explanation of the proposed treatment or medical treatment, including the purpose, type, method and likely duration of the treatment or medical treatment
  • they have been given an explanation of the advantages and disadvantages of the treatment or medical treatment including information about the associated discomforts, risks and common or expected side effects of the treatment or medical treatment
  • they have been given an explanation of any beneficial alternative treatments that are reasonably available, including any information about the advantages and disadvantages of these alternatives
  • they have received answers to any relevant questions that the person has asked and any other relevant information that is likely to influence the person’s decision
  • they have been given the relevant statement of rights and had that statement explained to them in a manner that the person is most likely to understand.

Reasonable opportunity

A person has been given a reasonable opportunity to make a decision if:

  • the person has been given a reasonable period of time to consider the matters involved in the decision
  • the person has been given a reasonable opportunity to discuss the decision with the registered medical practitioner or other health practitioner proposing the treatment or medical treatment
  • the person has been given a reasonable amount of support to make the decision
  • the person has been given a reasonable opportunity to seek any other advice or assistance in relation to the decision.

Given consent freely without undue pressure or coercion

Informed consent must be freely given. A person must not feel they have to give informed consent simply because the clinician believes it is necessary for their treatment or in their best interests or to please a family member or carer.

Have not withdrawn consent

A person can withdraw consent at any time. A person can withdraw consent verbally or in writing.

A person can withdraw consent before the treatment starts or during a course of treatment. If the person withdraws consent, the treatment must stop.

A person withdraws consent if they say or indicate by their behaviour that they do not consent to the treatment.

Providing treatment when a patient does not give informed consent

The Mental Health Act requires that patients are given treatment for their mental illness.

Only the patient can give or refuse informed consent to treatment. No other person or body authorised by law to make decisions for the patient can give or refuse informed consent to treatment. This means that a guardian or a person responsible under the Guardianship and Administration Act 1986 or an agent under the Mental Treatment Act 1988 cannot give or refuse informed consent on behalf of a patient.

However, the Mental Health Act permits an authorised psychiatrist to make a treatment decision for a patient who:

  • does not have capacity to give informed consent to the treatment proposed by the authorised psychiatrist or
  • has capacity to give informed consent to the treatment proposed by the authorised psychiatrist but has not given informed consent to that treatment.

The authorised psychiatrist can make a treatment decision for the patient if the authorised psychiatrist is satisfied that there is no less restrictive way for the patient to be treated other than the treatment proposed by the authorised psychiatrist.

The Mental Health Actdoes not permit an authorised psychiatrist to make a treatment decision about electroconvulsive treatment or neurosurgery for mental illness for a patient. See electroconvulsive treatment and neurosurgery for mental illness for more information.

Determining the least restrictive treatment

In determining whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must have regard, to the extend this is reasonable in the circumstances, to all of the following:

  • the patient’s views and preferences about treatment of his or her mental illness and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve
  • the views and preferences of the patient expressed in his or her advance statement
  • the views of the patient’s nominated person
  • the views of the guardian of the patient
  • the views of a carer, if the authorised psychiatrist is satisfied that the treatment decision will directly affect the carer and the care relationship
  • the views of a parent of the patient, if the patient is under the age of 16 years
  • the views of the Secretary to the Department of Human Services if the person is the subject of a custody to Secretary order or a Guardianship to Secretary order
  • the likely consequences for the patient if the proposed treatment is not performed
  • any second psychiatric opinion that has been given to the authorised psychiatrist.

Providing medical treatment to a patient who does not have capacity

Medical treatment can be administered to a patient if the patient gives informed consent to the medical treatment. A patient with capacity can refuse medical treatment.

The requirements for informed consent to medical treatment are the same as the requirements for treatment.

Substitute consent to medical treatment

The Mental Health Act sets out requirements for who can provide substitute consent for patients 18 years or above and patients under 18 years of age.

Adult patients

Medical treatment may be administered to a patient 18 years or older who does not have capacity to give informed consent to medical treatment, with the consent of the first person of the following listed below who is reasonably available, willing and able to make a decision about the proposed medical treatment:

  • a person appointed by the patient under section 5A of the Medical Treatment Act (the patient’s medical agent or guardian)
  • a person appointed by the Victorian Civil and Administrative Tribunal to make decisions concerning the proposed medical treatment
  • a person appointed under a guardianship order within the meaning of the Guardianship and Administration Act with power to make decisions concerning the proposed medical treatment (the patient’s guardian)
  • a person appointed by the patient (before the patient became incapable of giving informed consent) as an enduring guardian within the meaning of Guardianship and Administration Act with power to make decisions concerning the proposed treatment (the patient’s enduring guardian)
  • the authorised psychiatrist.

Patients under 18 years of age

Medical treatment may be administered to a young patient under 18 years of age who does not have capacity to give informed consent to medical treatment, with the consent of:

  • a person who, in relation to the patient, has the legal authority to consent to medical treatment and who, in the circumstances, is reasonably available, willing and able to make a decision about the proposed medical treatment or
  • the authorised psychiatrist.

A medical treatment decision may be made by the first person who is ‘reasonably available, willing and able’ to make a decision about the patient’s medical treatment.

The authorised psychiatrist may consent to medical treatment being administered to a patient who does not have capacity to give informed consent if the authorised psychiatrist is satisfied that the medical treatment would benefit the patient.

Making a substituted medical treatment decision

The Mental Health Actrequires the authorised psychiatrist to have regard to the following matters to the extent that is reasonable in the circumstances when determining whether a medical treatment would benefit a patient:

  • the patient’s views and preferences about medical treatment and any beneficial alternative medical treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve
  • the views of the patient’s nominated person
  • the views of the guardian of the patient
  • the views of a carer, if the authorised psychiatrist is satisfied that the treatment decision will directly affect the carer and the care relationship
  • the views of a parent of the patient
  • the views of the Secretary to the Department of Human Services if the person is the subject of a custody to Secretary order or a Guardianship to Secretary order
  • if the medical treatment is likely to remedy the condition of lessen the symptoms of the condition
  • the likely consequences for the patient if the medical treatment is not performed
  • any second opinion of a registered medical practitioner that has been given to the authorised psychiatrist.

If the authorised psychiatrist is of the opinion that a patient who does not currently have capacity to give informed consent to medical treatment is likely to have capacity to give informed consent within a reasonable period of time, the authorised psychiatrist must not consent to the medical treatment unless the delay in administering or performing the medical treatment could result in serious harm to, or deterioration in, the mental or physical health of the person.

Urgent medical treatment

The Mental Health Actpermits a ‘health practitioner’ to perform medical treatment on a patient who does not have capacity to give informed consent to the medical treatment where the medical treatment needs to be performed as a matter of urgency.

A matter of urgency means where medical treatment needs to be performed:

  • to save the patient’s life or
  • to prevent serious damage to the patient’s health or
  • to prevent the patient suffering or continuing to suffer significant pain or distress.

There is no requirement that the health practitioner seek the consent of any other person who is legally permitted to give consent to medical treatment on behalf of the patient where the health practitioner is satisfied that the medical treatment is required as a matter of urgency. However, if such a person is reasonably available, willing and able to give consent to the urgent medical treatment, that person’s consent should be sought as a matter of good clinical practice.

There is no requirement that the ‘health practitioner’ be registered under the Health Practitioner Regulation National Law (Victoria) Act 2009.

A health practitioner who in good faith carries out or supervises the carrying out of medical treatment in the reasonable belief that the requirements for urgent medical treatment have been complied with is not:

  • guilty of assault or battery
  • guilty of professional misconduct or unprofessional conduct
  • liable in any civil proceedings for assault or battery.

This protection from liability does not affect any duty of care owed by the health practitioner to a patient.