The informed consent of a person must be sought before treatment or medical treatment is given to the person under the Mental Health Act 2014. Show All people are presumed to have capacity to give informed consent to treatment or medical treatment regardless of their age or legal status under the Mental Health Act. The Mental Health Act sets out:
The informed consent of a person must be sought before treatment or medical treatment is given to a person in accordance with the Mental Health Act. A person gives informed consent if they:
CapacityThe person seeking informed consent of another person to a treatment or medical treatment must presume that the other person has the capacity to give informed consent. This means that everyone must be presumed to have capacity to make decisions about their treatment or medical treatment, regardless of their age (e.g. young people or older persons) or whether they are apatient under the Mental Health Act. The Mental Health Act contains a number of guiding principles to assist a person who is required to determine whether a person has capacity to give informed consent. See presumption of capacity. A person has been given adequate information to make an informed decision if:
Reasonable opportunityA person has been given a reasonable opportunity to make a decision if:
Given consent freely without undue pressure or coercionInformed 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 interestsor to please a family member or carer. Have not withdrawn consentA person can withdraw consent at any time.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. The Mental Health Act requires that patients are given treatment for their mental illness. Only the patient can give or refuse informed consent to treatment. No other person or body authorised by law to make decisions for the patient can give or refuse informed consent to treatment. Thismeans that a guardian or a person responsible under the Guardianship and Administration Act 1986 or an agent under the Mental Treatment Act 1988 cannot give or refuse informed consent on behalf of a patient. However, the Mental Health Act permits an authorised psychiatrist to make a treatment decision for a patient who:
The authorised psychiatrist can make a treatment decision for the patient if the authorised psychiatrist is satisfied that there is no less restrictive way for the patient to be treated other than thetreatment proposed by the authorised psychiatrist. The Mental Health Actdoes not permit an authorised psychiatrist to make a treatment decision about electroconvulsive treatment or neurosurgery for mental illness for a patient. See electroconvulsive treatment and neurosurgery for mental illness for more information. Determining the least restrictive treatmentIn determining whether there is no less restrictive way forthe patient to be treated, the authorised psychiatrist must haveregard, to the extend this is reasonable in the circumstances, to all of the following:
Providing medical treatment to a patient who does not have capacityMedical 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. The requirements for informed consent to medical treatment are the same as the requirements for treatment. The Mental Health Act sets out requirements for who can provide substitute consent for patients 18 years or above and patients under 18 years of age. Adult patientsMedical treatment may be administered to a patient 18 years or older who does not have capacity to give informed consent to medical treatment, with the consent of the first person of the following listedbelow who is reasonably available, willing and able to make a decision about the proposed medical treatment:
Patients under 18 years of age Medical treatment may be administered to a young patient under 18 years of age who does not have capacity to give informed consent to medical treatment, with the consent of:
A medical treatment decision may be made by the first person who is ‘reasonably available, willing and able’ to make a decision about the patient’s medical treatment. The authorised psychiatrist may consent to medical treatment being administered to a patient who does not have capacity to give informed consent if the authorised psychiatrist is satisfied that themedical treatment would benefit the patient. The Mental Health Actrequires the authorised psychiatrist to have regard to the following matters to the extent that is reasonable in the circumstances when determining whether a medical treatment wouldbenefit a patient:
If the authorised psychiatrist is of the opinion that a patient who does not currently have capacity to give informed consent to medical treatment is likely to have capacity to give informed consentwithin a reasonable period of time, the authorised psychiatrist must not consent to the medical treatment unless the delay in administering or performing the medical treatment could result in serious harm to, ordeterioration in, the mental or physical health of the person. Urgent medical treatmentThe Mental Health Actpermits a ‘health practitioner’ to perform medical treatment on a patient who does not have capacity to give informed consent to the medical treatment where the medicaltreatment needs to be performed as a matter of urgency. A matter of urgency means where medical treatment needs to be performed:
There is no requirement that the health practitioner seek the consent of any other person who is legally permitted to give consent to medical treatment on behalf of the patient where the healthpractitioner is satisfied that the medical treatment is required as a matter of urgency. However, if such a person is reasonably available, willing and able to give consent to the urgent medical treatment, thatperson’s consent should be sought as a matter of good clinical practice. There is no requirement that the ‘health practitioner’ be registered under the Health Practitioner Regulation National Law (Victoria) Act 2009. A health practitioner who in good faith carries out or supervises the carrying out of medical treatment in the reasonable belief that the requirements for urgent medical treatment have beencomplied with is not:
This protection from liability does not affect any duty of care owed by the health practitioner to a patient. |