Key messages

  • Capacity is a person’s ability to give informed consent to a particular treatment decision at a particular time.
  • The Mental Health Act 2014 presumes that all people receiving compulsory mental health treatment have capacity to make decisions about their treatment.
  • A person has capacity to give informed consent to a decision if they understand the information given to them about the decision, can remember the information, can use or weigh the information and can communicate their decision.
  • A patient without capacity should be supported to be involved in the decision-making process as far as possible.

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.

Understand

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.

Remember

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.

Communicate

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.

Determining capacity

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 behaviour.
  • 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 assessed.

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.