The Law Handbook 2024

Chapter 8.4: Mental illness 827 enable them to give informed consent (s 87(2)). Appropriate supports are defined in s 6. Adequate information to enable a patient to make an informed decision means they have been given: • an explanation of the proposed treatment or medical treatment, including the purpose, type, method and likely duration of the treatment; • an explanation of the advantages and disadvantages of the treatment, including any common side effects or risks; • an explanation of any beneficial alternative treatments available; • answers to any relevant questions and any other relevant information likely to influence their decision; • an explanation of the advantages and disadvantages of not undergoing the treatment; • providing and explaining a statement of rights specific to the proposed treatment (s 86(2)). A reasonable period of time to consider the decision includes giving patients an opportunity to discuss matters with the relevant treating team, appropriate supports and a reasonable opportunity to obtain advice or assistance (s 86(3)). Consent given freely means a person must not feel they have to give informed consent simply because the treating team believes it is necessary for their treatment or in their best interests or to please a family member or carer. In PBU & NJE v Mental Health Tribunal [2018] VSC 564 (‘ PBU & NJE case ’) – a case about the provision of ECT– JusticeBell stated that it is enough that ‘the person … is able to make and communicate a decision in broad terms as to the general nature, purpose and effect of the treatment’ [280]. The test must be applied in a non-discriminatory manner and requires an assessment of whether the person has the capacity to use and weigh the relevant information, not whether they actually do use and weigh the relevant information. ‘To impose upon persons having a mental illness a higher threshold of capacity, and to afford them less respect for personal autonomy and individual dignity, than people not having mental illness,’ Justice Bell stated, ‘would be discriminatory’ [280]. Patients who are concerned they were not given sufficient information, opportunity or support to make their own decisions can complain to the Victorian Mental Health andWellbeing Commission. If the person is a compulsory patient, an application for revocation of the order may be appropriate. Treatment without informed consent There are limited circumstances when treatment can be provided to a person when they do not have capacity to give informed consent, or they do not give informed consent to treatment. An authorised psychiatrist can make a treatment decision for a patient if satisfied the treatment is clinically appropriate and there’s no less restrictive way for the patient to be treated. Treatment under a compulsory assessment order A person under a compulsory assessment order can only be given treatment without consent if a registered medical practitioner is satisfied that urgent treatment must be given to prevent serious deterioration in the patient’s mental or physical health or to prevent serious harm to the patient or another person (s 142 MHWA). Indications of urgency might include that the person is suffering significant distress, or where a delay in treatment might exacerbate a deterioration in the person’s mental health that could result in serious harm. (See below for more information on assessment orders). Treatment that does not accord with a patient’s advance statement of preferences An authorised psychiatrist can only make a treatment decision that is not in accordance with the patient’s advance statement of preferences if: • they are satisfied that the patient’s preferred treatment is not clinically appropriate; or • the patient’s preferred treatment is clinically appropriate but unable to be provided at the designated mental health services, despite all reasonable efforts being made to provide that preferred treatment. The authorised psychiatrist must inform the patient and their nominated support person (if they have one) and provide reasons for that decision in writing within 10 business days.