Capacity assessment in the NSW Mental Health Act: Are we doing it right?

Dr Tim Foley, Associate Professor Christopher Ryan

1St Vincent’s Hospital, Darlinghurst, Australia, 2University of Sydney, Camperdown, Australia


In 2015 the NSW Mental Health Act 2007 underwent reforms driven by the Convention on the Rights on Persons with Disabilities. These required that “every effort that is reasonably practicable” be made to obtain patients’ consent, to monitor their capacity and to provide support with decision-making. The changes were communicated to clinicians via an on-line education module and in-hospital seminars.


To determine the degree to which clinicians’ practice was impacted by the 2015 reforms.


An audit of the reports, written by authorised medical officers for Tribunal hearings, was conducted examining the frequency with which reports made reference to the patient’s decision-making capacity and to the Act’s three involuntary treatment criteria. The audit sampled two time periods: one prior to, and one after, the 2015 reforms.


There frequency of references to decision-making capacity was low (5% and 12%) compared to other elements of the mental health and there was no significant increase since the reforms.  Interestingly, the frequency with which the reports referred to the “least restrictive alternative” treatment criterion nearly doubled to 80%, which was significant.


Tim is a final year dual Advanced Trainee in Consultation Liaison Psychiatry and Psychotherapy in Sydney. He is currently Chief Psychiatry Registrar at St Vincent’s Hospital, Darlinghurst, working between CRUfAD and the NSW Ministry of Health Leadership position. He has an interest in human rights, ethics, capacity and mental health legislation, as well as the application of Psychotherapy for pain, functional, somatising disorders.

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