Informed consent and presumption of capacity

Informed consent

The informed consent of a person must be sought before they are given any treatment or medical treatment under the Act. This includes giving treatment to a person who is subject to an order authorising compulsory assessment or treatment.

A person gives informed consent if they:

• have capacity to give informed consent
• have been given adequate information to enable them to make an informed decision
• have been given a reasonable opportunity to decide whether or not to consent
• have given consent freely without undue pressure or coercion
• have not withdrawn consent or indicated any intention to withdraw consent.

Note: A person may give informed consent for medical treatment by instructional directive. An instructional directive is an advance care directive made under the Medical Treatment Planning and Decisions Act 2016 and is a legally binding statement in which the person who completes it consents to, or refuses, particular forms of medical treatment or a medical research procedure, or a course of treatment.

Presumption of capacity

A clinician proposing treatment or medical treatment for a person must presume that the person has capacity to give informed consent.

However, informed consent does not need to be sought if the clinician reasonably considers the person does not have capacity at the time the particular decision needs to be made.

Capacity to give informed consent

A person has capacity to give informed consent to a decision if they can:

• understand the information given to them about the decision – a person should be supported to understand the information
• remember the information – a person need only be able to remember information necessary to make the decision, a general recollection is sufficient
• use or weigh the information – a person must be able to assess the information and understand the impact of making, or not making a decision
• communicate their decision – this can be through speech, gesture or any other means.

Deciding if a person has capacity to give informed consent

In deciding whether a person has capacity to give informed consent, the following must be considered:

• 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. Just because a person does not have capacity to give informed consent on one day, it cannot be assumed that they do not have capacity to make a comparable decision on another day
• it should not be assumed that a person lacks capacity to give informed consent based only on their age, appearance, disability, condition or behaviour
• a person doesn’t lack capacity to give informed consent only because the person makes a decision that could be considered unwise
• whether they may be enabled to give informed consent by providing them with the appropriate supports.

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 and the person should be provided with appropriate supports to enable them to give informed consent.

A patient without capacity should be supported to be involved in the decision-making process as far as possible.

Adequate information to give informed consent

The Act describes adequate information to enable a person to make an informed decision as:

• an explanation of the proposed treatment or medical treatment, including the purpose, type, method and likely duration of the treatment or medical treatment
• an explanation of the advantages and disadvantages of the treatment or medical treatment including information about the associated discomfort, risks and common or expected side effects
• an explanation of any beneficial alternative treatments that are reasonably available, including any information about the advantages and disadvantages of these alternatives
• an explanation of the advantages and disadvantages of not undergoing the treatment; and
• answers to any relevant questions they have asked and any other relevant information likely to influence their decision.

Where relevant, the person must also have been given the relevant statement of rights.

Reasonable opportunity to make a decision

The Act describes reasonable opportunity to make an informed decision as:

• a reasonable period of time to consider
• a reasonable opportunity to discuss matters with the relevant health practitioner
• appropriate supports to make the decision
• reasonable opportunity to obtain advice or assistance in making the decision.

Application of the informed consent requirements will vary depending on the nature and effect of the treatment for which informed consent is being sought. For example, the type of information and support that should be provided to a person when seeking informed consent for treatment that involves medication will be different to what is required when seeking informed consent for a talking therapy session.

Given consent freely

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

Patient is a term used in the Act to refer to a person who is:

• subject to
  • an assessment order; or
  • a court assessment order; or
  • a temporary treatment order; or
  • a treatment order; or
• is a forensic patient; or
• is a security patient.

The term treatment in the Act means treatment for mental illness. Treatment can be given to a patient without consent in certain circumstances, however, treatment with consent is to be preferred.

Only the patient can give or refuse informed consent for treatment. No other person can give informed consent to treatment. This means that a guardian or Medical Treatment decision maker under the Medical Treatment Planning and Decisions Act 2016 cannot give or refuse informed consent to treatment on behalf of a person who is subject to a compulsory order.

Orders authorising compulsory assessment

A person who is on an assessment order can only be given treatment without consent if a registered medical practitioner employed or engaged by the responsible designated mental health service is satisfied that urgent treatment must be given to the person to prevent serious deterioration in the patient’s mental or physical health or to prevent serious harm to the patient or another person.

Indications of urgency include circumstances where the person is suffering significant distress or where their health or mental health is seriously deteriorating or where a delay in treatment would result in serious harm to the person.

Similar restrictions apply for a person who is subject to court assessment order, however, if the person is also subject to a temporary treatment order or treatment order, then treatment may also be provided in accordance with that order.

Before making a decision to provide urgent treatment to a patient subject to an assessment order or court assessment order, proper consideration must be given to the decision-making principles for treatment and interventions.

Orders authorising compulsory treatment

The Act requires that a person who is subject to an order for compulsory treatment, such as a temporary treatment order or a treatment order, is to be given treatment for their mental illness. Compulsory treatment can be given on such orders, however, treatment with consent is preferred.

The Act permits an authorised psychiatrist to make a treatment decision for a patient who is subject to an order for compulsory treatment and 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:

• the treatment is clinically appropriate; and
• there is no less restrictive way for the patient to be treated other than the proposed treatment.

An authorised psychiatrist cannot make a treatment decision about electroconvulsive treatment or neurosurgery for mental illness for a patient. See electroconvulsive treatment (ECT) and neurosurgery for mental illness for more information.

Deciding the least restrictive treatment

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

• the patient’s views and preferences about the proposed treatment, including
  • views and preferences in the person’s advance statement of preferences, if they have one
  • views of the person’s nominated support person if they have one

• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve
• any beneficial alternative treatment that is reasonably available
• the likely consequences for the patient if the treatment is not administered
• the likely consequences if the treatment is provided without consent
• any second psychiatric opinion that has been given to the authorised psychiatrist in relation to the patient’s treatment
• the views of the persons guardian, if they have one
• the views of any carer, if the authorised psychiatrist is satisfied that the treatment decision will directly affect the care relationship
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

These obligations to have regard to the views of others will be fulfilled if reasonable attempts are made to find out the views of those listed above even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

Before making a treatment decision, the authorised psychiatrist must give proper consideration to the decision-making principles for treatment and interventions

When a treatment decision is not consistent with an advance statement of preferences

An authorised psychiatrist may only make a treatment decision for a patient that is not in accordance with the preferred treatment specified in the patient’s advance statement of preferences if satisfied that the patient’s preferred treatment is:

• not clinically appropriate; or
• is clinically appropriate but is unable to be provided to the patient by the designated mental health service despite the designated mental health service making all reasonable efforts to do so.

If an authorised psychiatrist makes a treatment decision that is not in accordance with the treatment preferences set out in an advance statement of preferences, the authorised psychiatrist must inform the patient and provide reasons for that decision.

Those reasons must be given in writing as soon as practicable and no later than 10 business days to the patient and the patient’s nominated support person if they have one.

Providing medical treatment when a patient does not give informed consent

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.

Substitute consent to medical treatment

The Act sets out requirements for who can provide substitute consent for patients for medical treatment. The requirements differ for adult patients (18 years or older) and patients who are under 18 years of age.

Adult patients

If a patient who is 18 years or older does not have capacity to give informed consent to medical treatment, medical treatment can be provided with the consent of the first person in the following list who is reasonably available, willing and able to make a decision about the proposed medical treatment:

• the patient’s medical treatment decision maker
• a person appointed by the Victorian Civil and Administrative Tribunal to make decisions about the proposed medical treatment
• a person appointed under a guardianship order within the meaning of the Guardianship and Administration Act 2019 with power to make decisions concerning the proposed medical treatment (the patient’s guardian)
• the authorised psychiatrist.

Patients under 18 years of age

If a patient who is under 18 years old does not have capacity to give informed consent to medical treatment, medical treatment can be provided with the consent of:

• a person who has the legal authority to consent to the medical treatment for the patient and who is reasonably available, willing and able to make a decision about the proposed medical treatment; or
• if that person is not reasonably available or is not willing and able to make a decision about the proposed medical treatment, the authorised psychiatrist.

Requirements if the authorised psychiatrist is consenting to medical treatment for a patient

The authorised psychiatrist can only consent to medical treatment for a patient if they are satisfied the medical treatment will benefit the patient.

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

In deciding if the medical treatment will benefit the patient the authorised psychiatrist must have regard to the extent that is reasonable in the circumstances, to:

• the patient’s views and preferences about the proposed medical treatment and the reasons the patient has those views and preferences, including any recovery outcomes they would like to achieve
• any beneficial alternative medical treatment that is reasonably available
• if the medical treatment is likely to remedy the condition or lessen the symptoms of the condition
• the likely consequences for the patient if the medical treatment is not administered
• any second opinion of a registered medical practitioner that has been given to the authorised psychiatrist
• any relevant values directive given by the patient
• the views of the patient’s nominated support person
• the views of the patient’s guardian, if they have one
• the views of any carer, if the authorised psychiatrist is satisfied that the medical treatment decision will directly affect the care relationship
• the views of the patient’s parent, if the patient is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the patient is the subject of a relevant child protection order.

More information on these terms is available at the Terms and definitions webpage.

Transitional arrangements

If consent to medical treatment is given under the Mental Health Act 2014, and the course of medical treatment consented to has not commenced or been completed by 1 September 2023, the consent to that course of medical treatment is to be taken to be consent given under the Mental Health and Wellbeing Act 2022.