The Law Handbook 2024

826 Section 8: Disability, mental illness and the law • signed and dated by the person making the nomination; • witnessed by another adult and include a statement by the witness stating that they believed the person making the nomination understands what it is, understands the consequences of making it and how to revoke it, and the person appears to have made the nomination of their own free will. They must also state they observed the person signing it and that they are an adult. A nomination is made when the nominated support person signs the acceptance form. Forms are available at www.health.vic.gov. au/mental-health-and-wellbeing-act-handbook/ supported-decision-making/nominated-support- persons. These include the nominated support person form, as well as forms to revoke the appointment, or for a nominated support person to resign their appointment. Similarly, a nominated support person will be informed when any of these situations arise. Some patients may not have a nominated support person. The MHWA requires a designated mental health service to support the patient tomake decisions and participate in decision-making, understand information and their rights and communicate their views, preferences, questions or decisions. A patient may be supported by a non-legal mental health advocate or their family, carer or other supporters of their choosing. Mental health treatment, capacity and consent Treatment for mental illness ‘Treatment’ for mental illness is defined in section 5(1) of the MHWA to mean things ‘done to the person in the course of the exercise of professional skills: i to remedy the mental illness; or ii to alleviate the symptoms and reduce the ill effects of the mental illness.’ [emphasis added]. Section 5 states that treatment is treatment for mental illness, including electroconvulsive treatment and neurosurgery, but that detention is not treatment. An intervention that reduces the ill effects of a person’s mental illness without also alleviating the symptoms does not meet the definition of treatment. For example, detention in hospital in and of itself does not meet this definition since it cannot be said to alleviate symptoms of the illness, nor remedy it. Also, keeping a person in hospital because they do not have access to suitable accommodation is not treatment. It is also hard to see how other interventions (e.g. monitoring and supervision of medication by staff) alone constitute ‘treatment’ under this definition. Capacity to give informed consent Informed consent is given when a person has been given adequate information and a reasonable opportunity to make a decision. Capacity to give informed consent means that a person can understand the information given to them about the decision, can remember the information and can use or weigh the information to communicate their decision (s 87). A person must be given adequate information to make an informed decision and given a reasonable opportunity to decide whether to consent. Consent must be given freely, without undue pressure or coercion and can be withdrawn at any time either verbally or in writing. Before treatment or medical treatment is given to a person under the MHWA, the patient’s informed consent must be sought. This includes treatment provided under a CTO. Treating teams must start by presuming a patient has capacity to give informed consent. If the treating team reasonably believes the patient does not have capacity to give informed consent, the patient’s informed consent does not have to be sought (s 85). If a voluntary patient withdraws their consent after the commencement of the treatment, treatment must stop. Capacity is decision-specific and may change over time. Psychiatrists should seek a person’s informed consent for each treatment decision that needs to be made (s 85(1)). Incapacity should not be assumed based only on the person’s age, appearance, condition, an aspect of the person’s behaviour, or whether their decision could be considered unwise. The assessment of a person’s capacity (or rather, incapacity) should be conducted at a time and in an environment where it can be most accurately assessed. Treating teams should consider whether providing a patient with appropriate supports will