Informed consent - mental health legislation

The NSW, NT and SA Acts contain no capacity test, so the common law test in Hunter and New England Area Health Service v A [2009] NSWSC 761 applies.

The four-part test set out in that case (understanding/retaining/using and weighing/communicating) is generally applied across the Acts. The Queensland Acts and Tasmanian Acts are the main exceptions. The Queensland Act focuses less on using and weighing information, and more on other aspects of decision-making. The Tasmanian Act adds the qualifier that the decision-making capacity is impaired by ‘an impairment of, or disturbance in, the functioning of the mind or brain’.

Disclaimer: These tables have been developed by the RANZCP as at 30 June 2017 in order to allow key provisions in the mental health Acts to be compared. They are intended for reference purposes only and are not intended to be a substitute for legal or clinical advice.

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