Capacity as a Determinant of Non-consensual Treatment of the Mentally Ill in Australia

Numerous authors have argued that a lack of capacity, not a likelihood of harm, should provide the legal basis for coercive treatment when a person suffers a mental illness. Recently, the governments of Victoria and the Australian Capital Territory have begun to investigate that avenue of law reform. In this context, this article surveys current Australian mental health legislation to determine to what extent, if any, a lack of capacity already forms a part of the legal basis of coercive treatment. Careful analysis of the statutes and relevant case law reveals that a lack of capacity plays almost no role as the basis for non-consensual treatment of people with mental illnesses in Australia. The article concludes by suggesting a mechanism by which capacity could be made the fulcrum of non-consensual treatment, using New South Wales as an example and adopting a minimalistic approach.