Capacity is an essential component to validating consent, or refusal to consent, but there is no specific legal test for capacity set out in the HDC Code itself. The person must be able to:

  • understand the nature, purpose and effects of the proposed treatment;
  • weigh up the options, the risks and benefits, including the likelihood of success and any alternative forms of treatment;
  • appreciate the possible consequences of receiving, or not receiving, the proposed treatment; and
  • communicate their decision.

Even where there is an appointed welfare guardian or attorney, every effort should be made to help the person participate as much as possible in the decision to be made. Right 7(3) of the HDC Code provides that:

Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence.

  © 2020 Alison Douglass