Victorian Current Acts

MENTAL HEALTH AND WELLBEING ACT 2022 - SECT 87

    (1)     A person has capacity to give informed consent if the person—

        (a)     is able to understand the information they are given for the purpose of deciding whether or not to consent; and

        (b)     is able to remember that information; and

        (c)     is able to use or weigh that information in deciding whether or not to consent; and

        (d)     is able to communicate the decision the person makes by speech, gestures or any other means.

    (2)     The following must be considered in deciding whether a person has capacity to give informed consent—

        (a)     the person's capacity to give informed consent is specific to the particular decision that the person is making;

        (b)     the person's capacity to give informed consent may change over time;

        (c)     it should not be assumed that the person does not have capacity to give informed consent only because of the person's age, appearance, disability, condition or behaviour;

        (d)     it should not be assumed that the person does not have capacity to give informed consent only because the person makes a decision that could be considered unwise;

        (e)     whether the person may be enabled to give informed consent by providing the person with appropriate supports.

    (3)     In assessing whether a person has capacity to give informed consent, the person carrying out the assessment must take all reasonable steps to ensure that—

        (a)     the assessment is carried out at a time, and in an environment, that the capacity of the person being assessed can be determined most accurately; and

        (b)     the person being assessed is provided with appropriate supports to enable the person to give informed consent.