Decision-making capacity is your ability to make decisions for yourself about the treatment, care and support you receive, including for your mental illness or mental disorder. Decision-making capacity is situational and can involve help from others if needed.
You have capacity to make a decision in relation to your treatment, care or support for a mental disorder or mental illness, with assistance if needed, if you can:
You will always be assumed to have decision-making capacity unless it has been determined through an assessment, that you do not.
Things that may affect your decision-making capacity include:
Having a mental illness or mental disorder now or in the past does not automatically mean you don’t have decision-making capacity. Your decision-making capacity may change over time and you may also have capacity to make some, but not all, decisions.
Before you are deemed to have decision-making capacity or not, you will receive all the help you need to make decisions about your treatment, care, and support.
This may mean you are given information about treatment, care, and support in different ways (e.g. using an interpreter or being provided with written material).
You can also choose people that you trust to help you understand the decision you are making (e.g. a family member, close friend, or Aboriginal Liaison Officer (ALO).
Sometimes an assessment is needed to determine your decision-making capacity. The assessment may be different for each situation or decision that needs to be made.
When assessing decision-making capacity, the following are important considerations:
Only after these things have been carefully considered can you be considered as not having decision-making capacity. Making an unwise decision, in other people’s eyes (for example, not agreeing to treatment, care or support) does not automatically mean that you don’t have capacity to make decisions.
Similarly, accepting treatment, care and support does not necessarily mean that you have decision-making capacity, just as declining treatment, care, and support does not automatically mean you don’t have capacity to make decisions.
Being found to have impaired decision-making capacity under a different law does not mean that you will be treated as having impaired decision-making capacity under the Mental Health Act 2015.
Your decision-making capacity will continue to be assessed regularly and you must be given the chance to make decisions at a time when you do have capacity.
If you are found to not have decision-making capacity about your mental health treatment, care, and support then someone else may have to make decisions for you.
This might include:
Whoever makes these decisions for you must make decisions that are in your best interest.
A decision in your best interest is a decision that you would make yourself, if you had the capacity to do so at that point in time. It does not have to be the same decision that another person would make. Your interests are specific to you.
Deciding on your best interests involves an assessment by your treating team, including a psychiatrist. A best interests’ assessment will consider many factors, including your welfare, abilities, how your future may be affected by having (or not having) treatment as well as potential impacts on your family, employment, and other important matters. Your treating team may also talk with significant others, including your family and carer.
When determining your best interests, the assessment will consider: