Australian Capital Territory Current Acts

MENTAL HEALTH ACT 2015 - SECT 28

    (1)     A mental health professional must, before giving treatment, care or support to a person with a mental disorder or mental illness, take reasonable steps to find out whether an advance agreement or advance consent direction is in force in relation to the person.

    (2)     If an advance agreement is in force and the person does not have decision-making capacity, a mental health professional—

        (a)     must, if reasonably practicable, give treatment, care or support to the person in accordance with the preferences expressed in the agreement; and

        (b)     must not apprehend, detain, restrain or use force to give effect to the agreement.

    (3)     If an advance consent direction is in force and the person does not have decision-making capacity, a mental health professional—

        (a)     may give the person the treatment, care or support if the direction gives consent for the treatment, care or support; and

        (b)     may give a particular medication or procedure if the direction indicates that the person consents to the medication or procedure; and

        (c)     must not give a particular medication or procedure if the direction indicates that the person does not consent to the medication or procedure; and

        (d)     must not apprehend, detain, restrain or use force to give effect to the direction.

    (4)     If an advance consent direction is in force in relation to a person but the person resists being given treatment, care or support to which they have consented under the direction, a mental health professional may give the treatment, care or support to the person only if the ACAT, on application by the mental health professional, orders that the treatment, care or support may be given.

    (5)     If a mental health professional believes on reasonable grounds that giving treatment, care or support to a person with impaired decision-making capacity in accordance with an advance consent direction is unsafe or inappropriate, the mental health professional may give the person other treatment, care or support only if—

        (a)     both of the following apply:

              (i)     the person is willing to receive the treatment, care or support;

              (ii)     the person has a guardian or health attorney under the Guardianship and Management of Property Act 1991

, or attorney under the Powers of Attorney Act 2006

, and the guardian, health attorney or attorney gives consent to the treatment, care or support in accordance with the guardian, health attorney or attorney's appointment; or

        (b)     the ACAT, on application by the mental health professional, orders that the treatment, care or support may be given.

    (6)     The mental health professional must enter in the person's record the reasons for the treatment, care or support given under subsection (5) (a).