Capacity and consent to treatment

Capacity and consent to treatment

Under the Mental Health Act 2014, anyone wanting to give you treatment must first get your ‘informed consent’ before giving you that treatment. To give informed consent you must have the ‘capacity’ to make decisions. There are principles to help guide decisions about capacity.

You can only be given compulsory mental health treatment if you:

  • are on a treatment order
  • do not haven capacity to give informed consent to treatment, or are refusing the proposed treatment, and
  • the authorised psychiatrist is satisfied the treatment they proposed is the least restrictive treatment.

For some specific treatment, such as electroconvulsive treatment and neurosurgery, a different test and process apply before you can be given that treatment. See Electroconvulsive treatment.

Informed consent to treatment

You have given informed consent if you:

  • have capacity to give informed consent (agreement) to the treatment proposed
  • have been given adequate information to make a decision
  • have been given a reasonable opportunity (time) to make the decision
  • are able to consent freely, without pressure by anyone, and
  • you have not withdrawn your consent or suggested you intend to withdraw consent.

An authorised psychiatrist will decide if you are able to consent or not.

Capacity to make decisions

You have capacity to make give informed consent to a decision if you:

  • understand the information given about that decision
  • remember that information
  • can use and weigh up that information
  • can communicate the decision you make.

Guidelines for determining capacity

The Mental Health Act includes principles to help guide decisions about whether or not you have capacity.

These principles state that:

  • capacity to give informed consent is specific to the decision that needs to be made
  • it should be presumed that a person has capacity to give informed consent
  • a person’s capacity to give informed consent may change over time
  • it should not be assumed that a person lacks capacity to give informed consent based only on their:
    • age
    • appearance
    • condition
    • behaviour
  • a decision that a person lacks capacity to give informed consent should not be made only because the person makes a decision that could be considered unwise.

The authorised psychiatrist should assess your capacity at a time and in an environment in which your capacity can be most accurately assessed.

Get help

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