Mental Health Act 2013

For the purposes of this Act, a medical practitioner may regard a person's consent to an assessment, treatment or special psychiatric treatment as being informed consent if satisfied that – the person, at the time of giving the consent, has decision-making capacity; and the person has had a reasonable opportunity to make a considered decision whether or not to give the consent; and the person, having had that opportunity, has given the consent freely by some positive means, not by mere acquiescence.

For the purposes of subsection (1)(b) in its application to a treatment or special psychiatric treatment, a person may be taken to have had the requisite reasonable opportunity if – the treating medical practitioner and the person have discussed the treatment or special psychiatric treatment; and in those discussions the person was given an opportunity to disclose his or her priorities, expectations and fears about the treatment or special psychiatric treatment; and following those discussions the person was given – a clear and candid explanation of the advantages and disadvantages of the treatment or special psychiatric treatment, including information about the associated risks and common or expected side effects; and where applicable, a clear and candid explanation of the alternative treatments that may be available, including information about the associated advantages and disadvantages; and clear and candid answers to any questions the person may have had; and any other information that was considered, by the treating medical practitioner or person, to be of relevant importance and likely to influence the person's decision-making with regard to the treatment or special psychiatric treatment; and a reasonable opportunity to – obtain independent medical or other advice; and consider the advantages and disadvantages of giving the consent.

For the purposes of subsection (1)(c), a person is taken to have given consent freely if the consent is given without coercion, pressure or undue influence, whether from another person or a medication.

For the purposes of subsection (2), the information, explanations or answers must have been in a language and form that the person could understand.

Nothing in this Act is to be taken to prevent a person with decision-making capacity from withdrawing his or her consent to an assessment, treatment or special psychiatric treatment before the assessment, treatment or special psychiatric treatment is made or provided and, if he or she does so, he or she is not to be taken to have given informed consent to the assessment, treatment or special psychiatric treatment.