The Rights of People with Disabilities

In the Matter of ER (Mental Health and Guardianship and Management of Property) [2015] ACAT 73

On 29 October a panel of three ACT Civil and Administrative Tribunal (ACAT) members confirmed that a finding that a person lacked capacity under guardianship law, did not automatically negate that person’s capacity for the purposes of mental health treatment. In light of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), questions of capacity are becoming increasingly central to the treatment of people with disabilities under Australian law.

Questions of Law

In October 2011, the ACAT found that an individual known as 'ER' had impaired decision-making for the purposes of appointing a guardian pursuant to the Guardianship and Management of Property Act 1991. The Guardianship Act precludes a Guardian consenting to psychiatric treatment.

Due to later applications for ER to receive involuntary mental health treatment under the Mental Health (Treatment and Care) Act 1994, the Tribunal needed to resolve key questions of law, which in summary, the ACAT answered in the following way:

Do the finding and order mean that ER cannot give lawful consent to psychiatric treatment from time to time?

The Tribunal found that no, the finding and order made on 18 October 2011 did not mean that ER cannot give lawful consent to psychiatric treatment.

In determining the answer to the question, the Tribunal had regard to the following sub-questions:

  • Does ER, as a matter of fact, have capacity from time to time to consent to psychiatric treatment?

The Tribunal Found ER does not have capacity from time to time to consent to psychiatric treatment

  • How do sections 26, 28(d) and 33 of the Mental Health (Treatment and Care) Act 1994 and section 30 of the Human Rights Act 2004 inform the answer to the question? 

The Tribunal found these provisions do not disturb the finding referred to in the answer to sub-question one.

The two parties contesting the question of law were the ACT Chief Psychiatrist (represented by Australian Government Solicitor) and Public Advocate (represented by ACT Government Solicitor). In summary, the Public Advocate submitted that while ER may accept her psychiatric treatment, she lacked the requisite capacity to consent and the fact of her guardianship order was evidence of her lacking capacity. The Chief Psychiatrist submitted that she had the requisite capacity to consent to her psychiatric treatment and so no order by the Tribunal was required. 

Part of the complication in this individual matter was the structured environment in which ER resided, and that her capacity appeared to fluctuate over time. 

The ACT Human Rights Commission, along with the ACT Disability, Aged and Carer Advocacy Service (ADACAS) and Advocacy for Inclusion (AFI) were invited to make submissions as interested parties. The Commission submitted that the ACT Human Rights Act created a presumption 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 required its own assessment of capacity. So a finding that a person lacked capacity for the purposes of Guardianship law, did not necessarily mean they lacked capacity in another decision-making area of their life, including for the purposes of consenting to mental health treatment. 


The ACAT explored this question of law because of the increasing numbers of 'dual disability people' appearing before it, who already had guardianship orders in place because of their disability, and psychiatric treatment orders (PTOs) were being sought for 'involuntary' treatment under mental health legislation. The Tribunal summarised the issue:

'An argument emerged that the relevant people were at least complying with psychiatric treatment and in some cases expressing willingness to accept psychiatric treatment therefore there was no need to have a PTO in place and it was important not to do so because a PTO was not the ‘least restrictive’ option, which is a criterion stipulated in section 28 of the Mental Health Act that the tribunal must be satisfied of before making a PTO...Differently constituted tribunals took different approaches to the question of whether it was necessary for orders to be made for psychiatric treatment. Clearly a person can choose to accept psychiatric treatment voluntarily when they have full capacity but the question is whether someone who lacks full capacity can ‘consent’ to psychiatric treatment.' 

Assessing Capacity

The Tribunal reviewed the common law precedents on assessing capacity, and noted that 

  • There is a presumption that a person has capacity to make a decision;
  • Capacity may fluctuate;
  • Capacity must be assessed in relation to the decision to be made;
  • The assessment of capacity is specific to the relevant decision, which in this case is a decision about ER’s psychiatric treatment;
  • The test is not applied to psychiatric treatment generally, or to different treatment that may or may not be needed in future;
  • The person making the decision should be given the necessary support to make the decision;
  • The onus is on the applicant to rebut the presumption of capacity.

Section 30 of the Human Rights Act (‘HR Act’) (mirrored in s32 of the Victorian Charter of Rights and Responsibilities Act 2006) requires courts and tribunals to interpret laws compatibly with human rights, as far as it is possible to do so with the law's purpose. Section 40B of the ACT HR Act also requires that Public Authorities act and make decisions consistently with human rights, and this obligation applied to the Chief Psychiatrist and Public Advocate. The Tribunal considered the impact of the ACT HR Act and relevant international law in this area, particularly the UNCRPD. It noted the many human rights are engaged by involuntary mental health orders, and agreed with the HRC submission that common law tests of capacity were not displaced, and in fact were reinforced, by the application of human rights law. The Tribunal also concurred with the submissions of ADACAS and AFI that UNCRPD required ER should be provided with as much support as possible to retain her right to make decisions. 

Capacity compared to other Factors

The Tribunal found that capacity to consent was a factor that the Tribunal must take into account when making a mental health order under the current Mental Health (Treatment and Care) Act, but that the Tribunal could still make a treatment order if satisfied other requirements in the legislation were met. This was so, even if the Tribunal concluded that the person has capacity to consent, or lacks the capacity to consent. 

Fluctuating Capacity

A key question for the Tribunal was how to assess capacity in a person whose ability to consent may fluctuate over time. The Tribunal noted that such fluctuation is possible throughout the population, and may be due not only to disability, but also fatigue, intoxication or undue influence. In ER's case, she had a history of 'relapses' when her capacity was more in question, and this created doubt over the point in time at which her capacity should be assessed, particularly as the maximum duration of a treatment order is 6 months. 

The Tribunal concluded that the capacity to consent must be assessed over a period of time. It must include a future component in order to capture the fact that treatment is ongoing. The Tribunal considered that the period within which capacity to consent must be maintained would include a period when a possible relapse may occur.

ER's Ability to Consent

In applying the above tests, and the ACT Health Consent Procedure (based on the relevant common law tests), the Tribunal concluded that ER lacked the requisite consent to her psychiatric treatment. Nonetheless, the Tribunal dismissed the Public Advocate's contention that 'the issue of ‘free consent’ to medical treatment does not arise in circumstances where the Tribunal determined that it was necessary to appoint the Public Advocate to consent to medical treatment on ER's behalf'. Instead, the Tribunal found that because a guardianship order was specifically tailored to exclude psychiatric treatment, the appointment of a guardian was not sufficient of itself to find a person lacked capacity to consent to mental health treatment.

'....there is no intention in the Guardianship Act to cover the field of decision-making and, consistent with the UNCRPD and the obligation of the Tribunal to interpret the Guardianship Act in accordance with the right to liberty and security of the person under section 18 of the Human Rights Act, the Tribunal concludes that a finding of impaired decision-making does not automatically preclude a protected person, and in this case ER, from lawfully consenting to psychiatric treatment.'

The Tribunal noted that ER participated in a supported decision making trial with ADACAS in 2014, and that her capacity to accept support in decision making was relevant evidence in assessing her capacity. The Tribunal suggested that these supports remain, and that such supporters were significant in light of uncommenced amendments to the ACT's mental health legislation. The Tribunal noted that the new legislation would allow guardians to consent to psychiatric treatment where a person lacked capacity and expressed willingness to receive such treatment, and suggested it was likely ER satisfied these tests (negating the need for a future psychiatric treatment order). However, the Tribunal made no finding about whether ER might also have capacity to make an advance consent direction or advance directive under the new law.  


The decision clarifies the tests for capacity under ACT law, a particularly critical question in light of the ACT’s human rights legislation and UNCRPD. It also confirms that capacity is determined on a decision by decision basis, is assessed on a spectrum and is not automatically negated because of a prior finding of loss of capacity for a different area of a person's life.

As noted above, the ACT has substantially amended its mental health legislation, which commences in March 2016. Consistent with relevant human rights law, the new legislative tests place greater weight on a person's ability to consent and wishes regarding the treatment.  

The ACT's Guardianship legislation is currently under review by the ACT Law Reform Advisory Council and questions of capacity and supported decision making will be central to any reform. This follows a similar review undertaken by the Victorian Law Reform Commission.

The full decision is here.

Sean Costello works for the ACT Human Rights Commission.