Department of Health

Rights – how to support decision making

Key messages

  • Advance statements provide information on preferred treatment in the event that a person cannot express their preferences.
  • A nominated person will provide support in the event of compulsory treatment.
  • Capacity is presumed to exist in all persons under a compulsory treatment order.
  • Compulsory patients can seek a second psychiatric opinion at any time.

The supported decision-making model in the Mental Health Act 2014 is primarily for people who receive compulsory treatment, and it includes mechanisms such as advance statements, nominated persons, the presumption that people have the capacity to give informed consent to treatment, and the right to seek a second psychiatric opinion.

Advance statements

An advance statement sets out a person’s treatment preferences in case they become unwell and need compulsory mental health treatment.

These statements must be taken into account by an authorised psychiatrist when making decisions about treatment.

The authorised psychiatrist may make an alternative treatment decision if a treatment preference in an advance statement is not clinically appropriate or is not ordinarily provided by the mental health service.

Nominated person

A person with a mental illness can nominate another person to receive information and support them if they need compulsory mental health treatment.

The nominated person is consulted at critical points in planning the person’s treatment and recovery, and helps represent the person’s views and preferences.

Presumption of capacity

The Mental Health Act 2014 presumes that all people who receive compulsory mental health treatment have capacity to make decisions about their treatment.

Capacity is defined as the person’s ability to give informed consent to a particular treatment decision at a particular time.

A person has capacity to give informed consent to a decision if:

  • they understand the information given to them
  • they can remember the information
  • they can use or weigh the information
  • they can communicate their decision.

If a person does not have capacity to make a particular treatment decision, an authorised psychiatrist can make the decision for them.

The person must be supported to participate in the decision to the greatest extent possible.

Second psychiatric opinion

Compulsory patients can seek a second psychiatric opinion at any time about whether the compulsory treatment criteria still apply and about treatment being provided.

Second psychiatric opinions enable patients to better understand and make decisions about their treatment.

Reviewed 29 May 2015


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