‘Proper consideration’ is the same test that applies to consideration of rights under the Charter of Human Rights and Responsibilities Act 2006.
The Charter requires public authorities to give proper consideration to, and act consistently with, human rights. All public mental health services and their staff are public authorities.
In practice what this means will vary according to the context.
In circumstances where a decision is urgent, what is “proper consideration” will be different to circumstances where there is more time for a decision, or where the impact of the decision may be particularly significant.
Proper consideration doesn’t mean individual decisions must be informed by legal advice - although for some very complex decisions it may be required - or that a sophisticated formula or process must be followed – but consideration of the principles must be more than a tick box activity.
Decision makers should understand which decision making principles apply to a decision they are making; turn their mind to how that principle may apply and be able to justify the decision having considered or balanced the matters at hand.
Documentation is important if you’re ever asked to explain how you came to your decision, for example, if a complaint is made to the Commission but demonstrating proper consideration doesn’t require detailed or lengthy documentation.
Contemporaneous notes or notes made soon after the decision was made should indicate which principles were considered relevant and how they contributed to decisions. Again, where a decision was urgent this will be reflected in the documentation.
You can find more information in the Act handbook on the health.vic website.
Reviewed 13 August 2023