Capacity is the ability to give informed consent to a particular treatment at a particular time.
The Mental Health Act 2014 requires clinicians topresume
that all people receiving compulsory mental health treatment have the
capacity to give informed consent to treatment.
This presumption of capacity may be rebutted if there is evidence
that the person does not have capacity to give informed consent at the
time that the treatment decision needs to be made.
Presumption of capacity
Before treatment can be administered to a patient, a clinician must seek the informed consent of the person.
The clinician must presume that the patient has capacity to give informed consent to the treatment.
This presumption of capacity may be rebutted if it can be shown
that the patient does not have the capacity to give informed consent at
the time the particular treatment decision needs to be made.
A patient’s capacity to make a treatment decision can fluctuate. A
patient may not have capacity to make a particular treatment decision
today, however they may be able to make the treatment decision
tomorrow. The clinician should try to obtain informed consent at a time
and in an environment when the patient is most likely to be able to
give informed consent.
Capacity to give informed consent
A person has capacity to give informed consent to treatment or medical treatment if they:
- understand the information that is given to them about the treatment
- can remember the information relevant to the decision
- can use or weigh the information relevant to the decision
- can communicate the decision.
A person should be supported to make treatment decisions.
Supporting a person to understand information may include
providing an explanation of the information in a way that is
appropriate for the person, for example using interpreters, simple
language, visual aids or other means.
A person is only required to remember information that is
necessary for them to make a decision; they do not have to memorise the
exact information or advice provided.
A general recollection of the information is sufficient.
Use or weigh
A person must be able to assess the information, weigh up the
consequences of a decision and understand the impact of making the
decision, including the consequences of delaying or making no decision.
A person must be able to communicate their decision and why they made it.
A physiological inability to communicate does not mean a person lacks capacity.
The person should be supported to communicate their decision.
The Act contains the following guiding principles to determine whether a patient has capacity:
- capacity to give informed consent is specific to the decision that needs to be made.
- 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 or
- a determination 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.
- an assessment of a person’s capacity should occur at a time and
in an environment in which a person’s capacity can be most accurately
What happens if a patient does not have capacity?
If a patient does not have capacity to make a particular treatment
decision, an authorised psychiatrist may make the treatment decision
for the person.
The patient must be provided information and supported to participate in the decision to the greatest extent possible.
At a minimum, the authorised psychiatrist must consider the
patient’s views and preferences about the treatment, including any
views expressed in an advance statement and the views of their nominated person, family or carer in making a decision about their treatment or care.