ABSTRACT
Various laws permit people with mental illness, disabilities and/or substance dependence to be detained, subjected to compulsory treatment and deprived of their decision-making rights in a range of ways. The curtailment of people’s autonomy under these laws is typically, although not always explicitly, justified in the name of incapacity. Each regime gives differing relevance to, and posits different tests and thresholds for, (in)capacity. This chapter examines how the concept of capacity is treated under the Guardianship and Administration Act 1986 (Vic) and the Mental Health Act 2014 (Vic). Drawing on the experience of the author and her colleagues who regularly appear before the tribunals applying these laws, this chapter looks beyond what the Acts say on their face about (in)capacity to how they are interpreted and applied in practice, and explores some of the common assumptions that decision-makers appear to use to justify their decisions to restrict a person’s autonomy. The examination reveals generally limited explicit exploration of decision-making capacity, a tendency to defer to clinical opinion and an orientation towards outcomes, wellbeing and protectionist concerns beyond the strict parameters of the Acts. This raises questions about the proper scope of the tribunals’ role and the justifiability of their interventions.
