Case 18: Better safeguards around a person’s capacity to consent to medical treatment

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The ACT Civil and Administrative Tribunal decided a person with a cognitive disability, who the Tribunal had previously found to lack capacity under guardianship law, could not automatically be assumed to lack capacity to consent to psychiatric treatment orders. The ACT Human Rights Commission had made submissions to the Tribunal on the interpretation of ACT law in light of the ACT Human Rights Act and international law including the Convention on the Rights of Persons with Disabilities. The submissions emphasised the presumption in international law that a person has capacity for all decisions and a person seeking to overturn that presumption bears the onus of doing so. Further, each decision affecting an individual’s rights required its own assessment of capacity. The Tribunal noted the Commission’s submissions on human rights law reinforced common law principles. The Tribunal’s decision confirmed that someone’s capacity must be determined on a decision by decision basis, assessed on a spectrum and must not be automatically negated because of a prior finding of loss of capacity for a different area of a person’s life. The ACT later substantially amended its mental health legislation. To ensure consistency with human rights law, the new provisions place greater weight on a person’s ability to consent and wishes regarding the treatment.

Sources: ACT Human Rights Commission Annual Report 2015-16, p. 24; The Matter of ER (Mental Health and Guardianship and Management of Property) [2015] ACAT 73