Capacity generally
Lawyers can only take instructions from clients with the capacity to instruct. In a general sense, capacity is a legal rather than clinical construct and is sometimes referred to as ‘legal capacity’.
Capacity is not a blanket concept; it is decision-specific and can fluctuate over time. Generally it involves considering:
- a person’s ability to understand and retain information relevant to the particular decision that needs to be made
- using or weighing up that information to come to a decision; and
- communicating that decision in some way.
For some decisions (such as entering contracts or making a Will) there is a specific legal test, or threshold of understanding required for capacity to make that decision. However, generally speaking, the starting point is that all adults are presumed to have capacity to make the particular decision facing them.
Capacity to instruct in the mental health law context
In the context of Mental Health Tribunal advocacy, a lawyer should always start from the presumption the person has capacity to give instructions and make decisions about their treatment. This also applies to young people.
The Mental Health Act 2014 (Vic) also outlines a specific test for (and presumption of) capacity to provide informed consent to treatment, which is particularly relevant in the case of electroconvulsive treatment (ECT). This is found in s. 70.
The case of PBU & NJE v Mental Health is the leading authority on capacity for the purposes of the Act. Justice Bell stated at [280]:
To have the capacity to give informed consent, it is not required of persons having mental illness, nor of persons not having mental illness, that they give, or are able to give, careful consideration to the advantages and disadvantages of the treatment. It is not required that they make, or are able to make, a rational and balanced decision in relation to the decision. It is enough that the person, like most people, is able to make and communicate a decision in broad terms as to the general nature, purpose and effect of the treatment. Personal autonomy and the dignity of the individual are at stake. A person does not lack the capacity to give informed consent simply by making a decision that others consider to be unwise according to their individual values and situation. To impose upon persons having mental illness a higher threshold of capacity, and to afford them less respect for personal autonomy and individual dignity, than people not having that illness, would be discriminatory.
Capacity and consent to treatment
A major development in the 2014 Act is that a person subject to a treatment order must have their informed consent sought prior to any treatment or medical treatment being given (s. 70). Further, a mental health practitioner, when seeking informed consent for treatment of a person subject to a treatment order, must presume that a person has the capacity to give informed consent (s. 70(2)). Note the Act refers to ‘capacity to provide informed consent’ but here we consider ‘capacity’ and ‘informed consent’ separately.
NOTE: Under the Act, the presumption of capacity raises some key questions including:
- Does the person have capacity to provide informed consent? (s. 68)
- If the person has capacity, has informed consent been sought? (s. 69)
- Does the psychiatrist propose to ‘override’ capacity provisions? (s. 71)
Whether a person has capacity
A person has the capacity to give informed consent (s. 68) if they:
- understand the information he or she is given that is relevant to the decision
- are able to remember the information that is relevant to the decision
- are able to use or weigh information that is relevant to the decision, and
- are able to communicate the decision he or she makes by speech, gestures or any other means.
Capacity principles
To assist in understanding whether a person has capacity, the Act sets out the following principles to guide the determination of capacity (s. 68 (2)):
- capacity to give informed consent is specific to the decision that the person is to make
- capacity to give informed consent may change over time
- it should not be assumed that a person does not have the capacity to give informed consent based only on his or her age, appearance, condition or an aspect of his or her behaviour
- a determination that a person does not have capacity should not be made only because the person makes an unwise decision, and
- when assessing capacity, reasonable steps should be taken to conduct the assessment at a time at, and in an environment in, which the person's capacity can be assessed most accurately.
Informed consent to treatment
For the purposes of treatment or medical treatment given in accordance with the Mental Health Act a person gives informed consent (s. 69(1)) if they have:
- the capacity to give informed consent to the treatment or medical treatment proposed
- been given adequate information to enable the person to make an informed decision
- been given a reasonable opportunity to make the decision
- given consent freely without undue pressure or coercion by any other person, and
- not withdrawn consent or indicated any intention to withdraw consent.
Adequate information for informed consent
A person has been given adequate information to make an informed decision (s. 69(2) if they have been given:
- an explanation of the proposed treatment or medical treatment including:
- the purpose of the treatment or medical treatment
- the type, method and likely duration of the treatment or medical treatment
- an explanation of the advantages and disadvantages of the treatment, including information about the associated discomfort, risks and common or expected side effects of the treatment or medical treatment
- an explanation of any beneficial alternative treatments that are reasonably available, including any information about the advantages and disadvantages of these alternatives
- answers to any relevant questions that the person has asked
- any other relevant information that is likely to influence the decision of the person, and
- in the case of proposed treatment, a statement of rights relevant to his or her situation.
When a person does not give informed consent
The Act sets out that a psychiatrist may make a treatment for someone on a temporary treatment order or treatment order (s. 71) if:
- the person does not have capacity, or
- the person has capacity but has refused, and
- there is no less restrictive way for the patient to be treated.
Less restrictive treatment
In determining whether there is no less restrictive way for the patient to be treated the psychiatrist must have regard to a number of factors including the person’s views and preferences about treatment, any advance statement, the views of a nominated person, guardian or other relevant decision-maker or support person. (s. 71(4)).
Note –despite a presumption of capacity, the authorised psychiatrist may still make a compulsory treatment decision on behalf of a person who has capacity, people should still be encouraged to assert their right to make treatment decisions in discussion with their treating teams as well as being encouraged to create advance statements (ss. 19–22).
Most people can give instructions
Most people – including those with disabilities such as mental illness – can give meaningful instructions based on their own personal values and preferences. Having a disability does not mean that the person lacks capacity to make a particular decision nor is unable to give instructions.
The UN Convention on the Rights of Persons with Disabilities (which Australia has ratified) also reinforces that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ (Article 12(2)).
Just because a person makes a decision that others regard as unwise, or because they don’t make the best possible decision, does not necessarily mean that they lack capacity to give instructions. Most people (regardless of ability or diagnosis) make irrational decisions at times or decisions that appear to be risky or not in their objective best interests. This does not equate to being unable to give instructions.
Practice tips
- Generally, if a person understands at a basic level your role as their lawyer and can communicate instructions around their mental health treatment relevant to the decision the tribunal needs to make then they have the capacity to instruct you.
- For example, ’I don’t believe I have a mental illness’, ’I don’t like the medication I’ve been given – it has awful side effects’, ‘I want to go home where I can see my GP instead’ are all relevant instructions. Whether you ultimately decide whether you are able to represent your client before the tribunal is a different question.
- Start with the presumption of capacity. Tell the client they have a hearing coming up and ask them if they know what that means. Explain your role, the role of the tribunal and make sure they know you are independent of the mental health service. A general discussion around their rights and the function of the tribunal will give you the opportunity to see if anything triggers a concern that the person may not have capacity to instruct. If concerns are raised, assess the person’s capacity. It can be helpful to do this before committing to representing the client.
Difficulty getting instructions
Even though it may be difficult to get instructions, or the instructions are limited or may change, it is unusual for a person to be unable to provide any instructions at all on their Mental Health Tribunal hearing.
For example, even if your client is experiencing delusions they will often be able to provide instructions about some aspect of their experience of treatment in hospital or being forced to attend the community mental health service, or how they feel about their medication.
People can and do change their minds. Your client’s views about a particular medication may also change over time, but this doesn’t necessarily mean they can’t give instructions.
Where a person is unable to communicate (for example, if they are catatonic) or it is hard to make sense of their instructions, then it may be that they lack capacity to instruct. Such situations, however, are rare and often only temporary. A person is likely to regain their capacity once the catatonic symptoms resolve.
The LIV Capacity Guidelines and is a general resource for lawyers who are concerned about their client’s capacity.
Bear in mind that capacity is specific to the decision that is to be made, so a person may have capacity to give instructions about their views and preferences regarding medical treatment, even if they are not in a position to make complex decisions about legal matters as contemplated by the LIV guide.
Acting on instructions not ‘best interests’ at the tribunal
Acting on a person’s instructions, rather than what the lawyer may perceive to be their best interests is particularly important at the Mental Health Tribunal given the consequences of the hearing can impact profoundly on their rights. The person's treating team will be presenting their case according to what they perceive as in the person's best interests.
The presumption that a person has the capacity to instruct and the process of acting on instructions reinforces their right to autonomy, supported decision-making and dignity.
Lawyers can use their client’s instructions to help enliven these principles by illustrating what their client regards as ’least restrictive treatment’ and ’recovery’ having regard to the dignity of risk.
Taking the time to understand and advocate on the basis of a client’s instructions helps to promote their effective participation in the hearing and other decision-making processes.
Whilst the treating team and the tribunal and even support people may be motivated to act in the person’s best interests, it is ultimately the client’s instructions that determine how the lawyer acts and the submissions they may make on the person’s behalf.
Tips for obtaining your client’s instructions
- Take instructions in person – some clients find it more difficult to engage over the phone and getting instructions in person can often be more effective.
- Get to know your client – spending time building rapport with your client can help you understand what is important to them.
- Ask for reasons or motivations – ask about your client’s reasons for their instructions. What is important to them? How do they understand the issues? Do they need more information?
- Effectively manage your client’s expectations – be clear about the boundaries of your role as a lawyer. For example, they may think you can secure their immediate release, sue the mental health service or the police, or take the matter of their detention to the Supreme Court (which is only advisable in limited circumstances).
- Remain impartial and professional – be clear with the client that you’re a lawyer, not a doctor, and that it is not your role to say whether they do or do not have a mental illness. Refer all medical questions to a doctor.
- Dealing with family members – remember that they may be acting in your client’s best interests and this may not always be of help to your client’s case. Remember to only take instructions from your client directly.
- Responding to client’s symptoms – try not to engage in a discussion about the veracity of a client’s delusions. You can acknowledge their experiences, but then move on.
- Communicate in a way they can best understand – be responsive to your client’s communication preferences so you can most effectively explain relevant information, their legal options and the consequences of those options. Use an interpreter where required. Use plain English.
- Choose an appropriate time and place – some clients feel more alert and better able to process information or communicate in the morning, others in the afternoon. This can depend on when they take their medication and its effects. It can also be affected by receiving electroconvulsive treatment (ECT). Some clients prefer a quiet comfortable room in which to talk. You may need to give your client more time to consider their options and provide instructions.
- Check your instructions – if you are uncertain of your instructions, they appear contradictory or have changed, you can check your instructions several times in different ways, including just before the hearing. Limited instructions can be enough.
- Test your client’s instructions – It’s a good idea to test your client’s instructions against the evidence and the criteria by pre-empting some of the questions the tribunal might ask. For example, ‘The tribunal might ask you about [ ... ] what do you say about that?’
- If you are unable to act, be clear about why – at times you may not be able to do as your client has instructed. For example, you may need to explain that you cannot positively mislead the tribunal. There may also be another service that is better placed to assist your client, e.g. the Independent Mental Health Advocacy service may be more appropriate to help your client negotiate a change of medication.
Making referrals
Your client may have other legal issues they need assistance with, for example, court matters, tenancy, child protection or property disputes. Consider whether your client could be referred to any of the following services
Victoria Legal Aid Legal Help line – lawyers can refer clients to our legal help line for criminal, family, infringements, tenancy, and guardianship/administration matters 1300 792 387 between 8.00am and 6.00pm. Monday to Friday.
LIV referral service – For other matters, clients can call 03 9607 9550 to be send three lawyers in their area that deal with a specified area of law. The first half hour of a consultation is free.
Alternatively, you may choose to make a warm referral.
Warm referrals – useful links
Independent Mental Health Advocacy IMHA can provide assistance negotiating with the treating team about non-Tribunal hearing matters such as assessment, treatment, recovery planning, changes in medication, whether to receive depot injections or oral medication, or leave from the ward to smoke, visit shops, or the bank etc.
To make a warm referral, email contact@imha.vic.gov.au. Clients can call 1300 947 820.
Mental Health Complaints : If a person is not happy with the services or treatment they have received (or not received) from a mental health service provider they can make a complaint to the Mental Health Complaints Commissioner. This includes their treatment in being brought to hospital. Other people can make a complaint on a person’s behalf, such as someone asked to make a complaint by the person, or someone who can show that they have a genuine interest in the person’s wellbeing.
This complaint can be made:
- in writing,
- verbally, if confirmed in writing, or
- clients can call 1800 246 054.
Second Psychiatric Opinion can help a client organise an independent second opinion.
Other referral options:
- Hospital social worker – may be able to assist with securing housing post discharge, cleaning of the person home or setting up supports in the community, applications for Centrelink benefits or providing document to Court in support of an adjournment if the person has Court matters while an inpatient.
- Koori Liaison Officer – Note that many hospitals have a dedicated Koori Liaison Officer. If your client has not already been linked in with these services, ask them if they would like to be and inform hospital staff.
More information
Read more about:
- Aboriginal and Torres Strait Islander clients
- Role of lawyers in the mental health law jurisdiction
- Promoting supported decision-making and recovery-oriented practice
- Treatment criteria: compulsory treatment (includes tips on questions to help engage your client and information to look for)
- Preparing for and appearing at a Mental Health Tribunal hearing
- Capacity and consent to treatment
For more information about mental health treatment and services, see the Independent Mental Health Advocacy service website.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 02 June 2022