ECT legal safeguards tested for the first time in Supreme Court

ECT legal safeguards tested for the first time in Supreme Court

Monday, 14 August 2017

For the first time, Victoria’s legal safeguards and protections for people facing compulsory electroconvulsive treatment (ECT) will be put to the test, in a case to be heard today in the Supreme Court.

Our Director Civil Justice Access and Equity Dan Nicholson said, ‘Any decision to carry out ECT against a person’s will is a significant one. Each year there are around 700 hearings in which the Mental Health Tribunal makes the serious decision of whether or not ECT – a treatment that many people find invasive and distressing – can be given.

‘New legislation brought in three years ago introduced new safeguards around this intervention. Instead of the decision to give ECT without consent being made by a doctor alone, it’s now made by the Mental Health Tribunal, consisting of a legal member, a qualified psychiatrist and a community member.

‘However, there is still a long way to go in making these safeguards a reality, and many people face their hearing without the benefit of legal advice and representation.

‘In Victoria people have legal representation in only eight per cent of ECT hearings, compared to 76 per cent in NSW.

‘The Tribunal approves 90 per cent of ECT applications when a lawyer is not present, but only 50 per cent when a person facing ECT is represented by a lawyer. Having a lawyer in these important hearings makes a real difference. Too often people who are very unwell are facing these hearings alone,’ Mr Nicholson said.

Victoria Legal Aid (VLA) is acting on behalf of two people. ‘PBU’ had already six sessions of ECT, to which he did not consent, earlier this year before VLA began representing him. The second client, NJE, is currently facing 12 sessions of compulsory ECT.

‘PBU, like many people facing ECT, was only informed about his hearing hours before, didn’t realise he could seek legal advice, and did not attend the hearing – in fact he incorrectly believed a decision could not be made without his attendance,’ Mr Nicholson said.

‘On the other hand, we represented NJE in two initial hearings where her treating team’s application to perform ECT was rejected by the tribunal. At a third hearing, she asked for an adjournment to organise legal help, but this was refused and 12 sessions of ECT were ordered.’

VLA assisted both clients to appeal the decisions to the Victorian Civil and Administrative Tribunal (VCAT), and is now appealing the VCAT decisions to the Supreme Court of Victoria.

The Supreme Court action will test two important concepts governing the administration of ECT: one relating to when a person has capacity to consent to treatment; the other around how criteria relating to how the ‘least restrictive’ treatment option should be interpreted.

VLA is the major provider of legal help for people facing compulsory mental health treatment.

Mr Nicholson will be available at a media doorstop:

  • 9.30 am, 14 August 2017
  • Victorian Supreme Court entrance, 210 William St, Melbourne.

Media enquiries

If you have a media enquiry please contact Senior Communications Advisor Kerrie Soraghan via Kerrie.Soraghan@vla.vic.gov.au, or phone 0422 966 513 or (03) 9269 0660.

Read our explainer of the case

What is this case about? Read our Explainer – Supreme Court action on electroconvulsive treatment.

More information

Get help: how we can support people facing compulsory mental health treatment.