The Supreme Court of Victoria has today made a landmark decision that strengthens the rights of mental health patients who are facing electro-convulsive treatment (ECT) or 'electro-shock treatment' against their will.
This is the first time the court has considered laws that govern the use of compulsory ECT.
Victoria Legal Aid (VLA) appealed to the Supreme Court on behalf of clients 'PBU' and 'NJE' to clarify when ECT can happen without patient consent. Both had ECT ordered against their will by the Mental Health Tribunal. The Victorian Civil and Administrative Appeals Tribunal (VCAT) authorised those decisions.
VLA began representing PBU after he had ECT without his consent in 2017. NJE was facing 12 ECT sessions – ordered at a hearing where she did not have a lawyer.
In this appeal, VLA asked the court to consider important criteria governing the administration of ECT, including a person's capacity to consent or refuse to treatment.
In his judgment, Supreme Court Justice Kevin Bell found that VCAT had misapplied the law in relation to whether PBU and NJE had the capacity to decide if they wanted ECT, and breached their human rights.
His Honour ruled that mental health patients should face the same standard as all other people when their capacity to consent is assessed.
'The issue is closely connected with the need to respect the human rights of persons with mental disability by avoiding discriminatory application of the capacity test. More should not be expected of them, explicitly or implicitly, than ordinary patients.' [173]
'When respect is afforded to the choice of the person to consent to or refuse medical treatment, the person is recognised for who they are.' [199]
VLA is also concerned that mental health services are making too many requests for urgent hearings when the legal test required for urgency has not been met. Almost 60 per cent of applications for compulsory ECT are made urgently in Victoria, leaving very little time for patients to get legal information and help.
The Tribunal considers around 700 applications for compulsory ECT per year.
As stated by Hamish McLachlan, VLA Acting Program Manager, Mental Health and Disability Advocacy and PBU and NJE's lawyer.
• 'This is a significant decision for mental health patients because it strengthens their rights to have control over their treatment and to be treated equally with other members of the community.'
• 'The decision provides clear guidance that mental health patients have the same fundamental human rights as everyone else in the community, and decisions about their treatment must be made in accordance with those rights.'
• 'This case isn't about ECT being good or bad – we have clients who agree to have ECT and find it helpful. This case is about ensuring that the Tribunal process protects patients' rights.'
• 'Supporting people in these hearings can make a big difference. PBU and NJE overturned ECT applications with lawyers – but not when they were unrepresented.'
• 'We will continue to carefully monitor the process for ordering ECT against a person's will.'
As stated by 'PBU':
• 'It was one of the most traumatic days of my life, when I was taken into the ECT room and held down on the bed. I didn't know I was going to have ECT.'
• 'The most terrifying aspect of having ECT is that I didn't know what state I would be in after.'
• 'I wish I had a lawyer or an Independent Mental Health Advocate present for the first Mental Health Tribunal hearing where they approved ECT. I didn't know I could have a lawyer then and I think it would have made all the difference. I didn't think I had a chance to put my case forward in an equal way.'
–
/Public Release. This material from the originating organization/author(s) might be of the point-in-time nature, and edited for clarity, style and length. Mirage.News does not take institutional positions or sides, and all views, positions, and conclusions expressed herein are solely those of the author(s).
