- 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 is not binding upon either the courts or practitioners in England & 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 an appellate 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.