"It's a Very Complex Thing": Discourse About Capacity in Australia's Northern Territory

Abstract

In the years following the introduction of the Convention on the Rights of Persons with Disabilities (CRPD), there has been considerable debate about the validity of ‘lack of capacity’ as a legal justification for involuntary (unconsented) psychiatric treatment. In Australia however, mental health legislation reforms completed following the CRPD have not resulted in the abandonment of substituted decision-making based on lack of capacity. Capacity considerations remain relevant.

The Northern Territory (NT) of Australia has been undertaking a prolonged review of its current mental health legislation. It is expected to soon become the last Australian jurisdiction to introduce new mental health legislation following the CRPD. This paper presents the findings of a recent study of capacity discourse, involving a review of NT caselaw and an interview with a medical practitioner. The data collected provides support for defining the concept of capacity when it is used in legislation; it suggests that when ‘capacity’ is left undefined in legislation, the test for capacity can become vague, amorphous, subjective, and focused on compliance.

The study of capacity discourse enhances the visibility of decision-making about capacity under current NT mental health law. From a methodology perspective, the study highlights how interviews with clinicians can provide rich data about how mental health law is understood and operationalised in practice.