89When a patient does not have capacity to give informed consent or does not give informed consent to treatment

89 When a patient does not have capacity to give informed consent or does not give informed consent to treatment

(a) a patient (other than an assessment patient or a court assessment patient)—

(i) does not have capacity to give informed consent to treatment proposed by an authorised psychiatrist; or

(ii) has capacity to give informed consent but does not give informed consent to treatment proposed by an authorised psychiatrist; and

(b) the treatment proposed by the authorised psychiatrist is not electroconvulsive treatment or neurosurgery for mental illness.

See Parts 3.5 and 3.6 for relevant provisions regarding electroconvulsive treatment and neurosurgery for mental illness.

(2) For the purposes of determining whether this section applies to a person, it is only the patient not giving informed consent that is relevant and not the refusal to give consent of any other person or body authorised by law to make decisions for the patient.

(3) An authorised psychiatrist may make a treatment decision for a patient under this section if the authorised psychiatrist is satisfied that—

(a) the treatment is clinically appropriate; and

(b) there is no less restrictive way for the patient to be treated other than the treatment proposed by the authorised psychiatrist.

(4) In deciding whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist, to the extent that is reasonable in the circumstances, must have regard to the following—

(a) the patient's views and preferences regarding the treatment and the reasons for those views and preferences including any recovery outcomes the patient would like to achieve;

(b) any beneficial alternative treatment that is reasonably available;

(c) the views and preferences of the patient expressed in the patient's advance statement of preferences;

S. 89(4)(d) amended by No. 44/2025 s. 55.

(d) the views and preferences of the patient expressed by the patient's nominated support person;

(e) the views of the patient's guardian;

(f) if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship, the views of the patient's carer;

(g) if the patient is under the age of 16 years, the views of the patient's parent;

(h) if the DFFH Secretary has parental responsibility for the patient under a relevant child protection order, the views of the DFFH Secretary;

(i) the likely consequences for the patient if the treatment is not administered;

(j) the likely consequences if the treatment is provided to the patient without the patient's consent;