The Mental Health and Wellbeing Act 2022 commenced on September 1, 2023. The Law Handbook is updated annually, with the next update due in early 2024. In the meantime, for up-to-date information on the new Act, please visit the Mental Health and Wellbeing Act 2022 Handbook on the Department of Health’s website.


Lucy Carter

Lawyer, Mental Health Legal Centre

Mental health treatment, capacity and consent

Requirements of the Mental Health Act 2014 (Vic)

Consistent with the focus on individualised treatment, including for compulsory patients, the Mental Health Act 2014 (Vic) (‘MHA 2014’) sets out explicit obligations on public mental health services and psychiatrists when making decisions about mental health treatment, even when a person is already a compulsory patient.

Treatment for mental illness

‘Treatment’ for mental illness is defined in section 6 of the MHA 2014 to mean things ‘done to the person in the course of the exercise of professional skills:

  1. to remedy the mental illness; or
  2. to alleviate the symptoms and reduce the ill effects of the mental illness.’ [emphasis added].

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 and informed consent

Irrespective of whether a person is a compulsory patient or not, they are presumed to have capacity to make their own decisions about treatment (s 70(2) MHA 2014). The presumption should only be displaced by cogent evidence that the person does not have capacity to make that particular decision.

The test for capacity to provide informed consent is outlined in section 68(1) of the MHA 2014.

It requires that the person:

  1. understands the information they are given, relevant to the decision;
  2. is able to remember the relevant information;
  3. is able to use or weigh that information; and
  4. is able to communicate the decision in some way.

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 70(10)). 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 (s 68(2)).

In PBU & NJE v Mental Health Tribunal [2018] VSC 564 (‘PBU & NJE case’) – a case about the provision of ECT – Justice Bell 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].

The meaning of informed consent is outlined in section 69(1) of the MHA 2014, which states a person gives informed consent if they:

  1. have capacity to give informed consent (see s 68(1));
  2. have been given adequate information to enable them to make an informed decision;
  3. have been given a reasonable opportunity to make the decision;
  4. have given consent freely without undue pressure or coercion; and
  5. have not withdrawn consent or indicated an intention to withdraw it.

‘Adequate information’ involves an explanation of the proposed treatment and the type, method and likely duration of the treatment, an explanation of its advantages and disadvantages, any discomfort, risks and common or expected side effects and an explanation of any beneficial alternatives reasonably available, including their advantages and disadvantages (s 69(2)).

A person will have been given a ‘reasonable opportunity’ to make the decision if they have been given a reasonable period of time to consider the issues; an opportunity to discuss them with the doctor or treating team who is proposing the treatment; a reasonable amount of support to make the decision; and a reasonable opportunity to get advice or assistance (s 69(3)).

Consumers who are concerned they were not given sufficient information, opportunity or support to make their own decisions can complain to the Victorian Mental Health Complaints Commissioner. If the person is a compulsory patient, an application for revocation of the order may be appropriate.

Treatment decisions where a person does not have the capacity to consent to treatment or refuses treatment

If the person does not have the capacity to give informed consent or has capacity but does not give informed consent (i.e. is refusing), the authorised psychiatrist is then empowered to make a treatment decision for the person only if they are satisfied that there is no less restrictive way for the person to be treated other than the treatment proposed (s 71(3) MHA 2014).

‘Treatment decision’ is not defined, but arguably, it refers to any decision to provide compulsory treatment. For example, prescribing a particular psychiatric medication or making significant changes to a person’s dose of antipsychotic medication.

In determining whether the treatment the psychiatrist proposes is ‘least restrictive’, they must have regard to the range of factors in section 71(4) of the MHA 2014. These factors include, importantly, the person’s views and preferences about their treatment and any beneficial alternative treatments that are reasonably available. If the person is agreeable to taking alternative medication, then it may be possible to argue the person should receive that treatment as a voluntary patient. The person can only receive compulsory treatment if they are a compulsory patient.

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