Insight & Capacity (Relevant but not Determinative)

In describing insight as “relevant to but not determinative of capacity,” we are echoing a formulation of Bell J in a 2018 case decided in the Supreme Court of the Australian State of Victoria (PBU & NJE v Mental Health Tribunal [2018] VSC 564).

The PBU & NJE case lacks the force of precedent in the courts of England and Wales, not least because it is applying a different statute – the Victorian

Mental Health Act

.  Nonetheless, the case is an important point of reference for a number of reasons:  (a) the Victorian

Mental Health Act

incorporates a standard of mental capacity that is modelled on (though not identical to) the MCA in England and Wales; (b) Bell J’s extensive ruling includes a careful review of English statute and case law, in addition to references to the UK Law Commission’s report; (c) the judgment, at a Supreme Court level, overturned a second order tribunal ruling in part of the grounds that the tribunal had erred in inferring lack-of-capacity from lack-of-insight.

Insight & Capacity (Correlations)

Insight & Capacity (Case Law)