The existence of a mental illness is not, in and of itself, proof that a person lacks legal capacity, and people who suffer from mental illness may be able to make arrangements to ensure that they can take part in decisions about their life including decisions about their treatment and care.
Queensland has a range of legislation dealing with capacity and the ability to communicate, or delegate, decision making ability. Most relevant to this discussion about capacity and mental health are the Mental Health Act 2016 (Qld) (MHA) and the Powers of Attorney Act 1998 (Qld).
The MHA provides for the involuntary assessment, treatment and protection of people who have a mental illness, which that act defines as “a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”.
The MHA includes the following principles:
- to the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting the person’s life, especially decisions about treatment and care;
- to the greatest extent practicable, in making a decision about a person, the person’s views, wishes and preferences are to be taken into account;
- a person is presumed to have capacity to make decisions about the person’s treatment and care and other matters under the MHA;
- to the greatest extent practicable, family, carers and other support persons of a person who has a mental illness are to be involved in decisions about the person’s treatment and care, subject to the person’s right to privacy.
The MHA goes on to say that a person has capacity to consent to be treated under that act if the person is capable of understanding, in general terms:
- that the person has an illness, or symptoms of an illness, that affects the person’s mental health and wellbeing;
- the nature and purpose of the treatment for the illness;
- the benefits and risks of treatment, and alternatives to the treatment, and
- the consequences of not receiving the treatment.
A treatment authority authorises the treatment and care of a person for a mental illness without the person’s consent. Pursuant to the MHA a treatment authority can be made by an authorised doctor after an assessment has been made, provided that doctor is satisfied that (among other things) the person does not have capacity to consent to treatment, and there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.
The MHA defines the term ‘less restrictive way’ in relation to receiving treatment and care for a mental illness if the person is able to receive treatment and care reasonably necessary for their mental illness in one of the following ways (for an adult):
- under an advance health directive (if one has been made);
- with the consent of a personal guardian (if one has been appointed);
- with the consent of an attorney (if one has been appointed);
- with the consent of the person’s statutory health attorney.
In addition to the above mechanisms, the MHA allows for the appointment of nominated support persons (and a way to notify mental health services of the same) whop can provide support to a patient under a treatment authority.
The MHA defines a couple of types of ‘regulated treatments’ which include electroconvulsive therapy or non-ablative neurosurgical procedures and requires that, before these regulated treatments can be given, a person must give informed consent to those treatments. One of the requirements for informed consent is the capacity to give consent to the treatment.
Informed consent to a regulated treatment can be given (or potentially refused) via an advance health directive.
The MHA contains a number of principles and rules designed to ensure that mental health patients can have a say in their treatment. It is important, however, that those patients have an understanding of those rights, and if possible are able to make arrangements and decisions through the use of properly drafted (and notified) advance health directives, enduring powers of attorney and the appointment of nominated support persons. If there are concerns about a person’s capacity, consideration can also be given to the appointment of personal guardians and/or financial administrators.
Ballantyne Law Group is able to assist people with mental illness and their families navigate this difficult and confronting area.
If you would like to discuss this or any other matter with our team, please contact us or call (07) 5606 7332 to speak to our team.