Explainer – Supreme Court action on electroconvulsive treatment

Explainer – Supreme Court action on electroconvulsive treatment

Monday, 14 August 2017

We are representing two people – ‘PBU’ and ‘NJE’ – who have been facing the administration of electroconvulsive treatment (ECT) against their will.

The Supreme Court will consider whether judgments made by the Victorian Civil and Administrative Appeals Tribunal, authorising these treatments for 'PBU' and 'NJE', were lawful. The case will be heard on Monday 14 August 2017.

This explainer covers:

What is ECT?

Electroconvulsive treatment is a medical procedure to induce a seizure within the brain, aimed at reducing some of the symptoms of mental illness. It is performed under general anaesthetic.

What does the law say abo​ut compulsory ECT?

Under Victorian law, electroconvulsive treatment (ECT) can be administered against a person’s will if the Mental Health Tribunal approves.

The Mental Health Act 2014 says the tribunal may only approve ECT if it is satisfied that two key criteria are met:

  • the patient does not have capacity to give informed consent
  • there is no less restrictive way for the patient to be treated.

These two criteria are due to be examined in the Supreme Court action.

A course of ECT can be up to a maximum of 12 treatments. These treatments are performed over a period of time not to exceed six months.

About 'PBU'

‘PBU’ was first treated for schizophrenia in 2011 and in December 2016 was detained for compulsory mental health treatment. He does not agree that he has schizophrenia, but says he has depression, anxiety and post-traumatic stress disorder. He has expressed willingness to receive treatment for these conditions, but is adamant that he does not want ECT.

This is a timeline of how PBU's situation unfolded:

  • 2 February 2017 – The Mental Health Tribunal authorised 12 compulsory sessions of ECT. He did not attend this hearing, was not legally represented, and did not receive legal advice. His psychiatrist did not conduct a capacity assessment.
  • 8–20 February – PBU received the first six treatments against his will (in the space of 12 days)
  • 23 February – Victoria Legal Aid’s (VLA's) mental health lawyers became aware of his situation and advocated on his behalf. His psychiatrist then determined that PBU had capacity to consent to ECT. As he was refusing to consent to it, the ECT was ceased, as is required by the Act.
  • 14 March – The tribunal rejected a further application from the treating team, ruling that the criteria for compulsory treatment was not met and accepting that PBU had capacity to refuse treatments.
  • 19 April – After a further application from the treating team, the tribunal found the ECT criteria met and authorised 12 further ECT treatments.
  • 21 April – Acting on behalf of PBU, VLA successfully applies for a stay of treatments until the Victorian Civil and Administrative Tribunal is able to review the tribunal decision.
  • 31 May – VCAT affirms the tribunal’s decision, authorising 12 ECT treatments in 10 weeks.

About 'NJE'

‘NJE’ has received voluntary and compulsory psychiatric treatment since 2004 and has been diagnosed with schizophrenia. She has never been treated with ECT.

This is a timeline for how 'NJE's situation unfolded:

  • 21–28 March 2017 – The Mental Health Tribunal rejects two separate applications for compulsory ECT from NJE’s treating team. NJE is represented by VLA on each occasion.
  • 18 April – NJE is informed only minutes beforehand that a third hearing is about to convene (she says she was advised that it would be on 21 April).
  • NJE asks the tribunal for an adjournment so she can seek legal help.
  • Her request is denied, and the tribunal approves 12 ECT sessions.
  • 21 April – VLA successfully seeks an injunction to prevent ECT. NJE continues to receive medication in hospital.
  • 19 July – VCAT affirms the tribunal’s decision to administer ECT.

The cases of 'NJE' and 'PBU' will be heard together in the Victorian Supreme Court on Monday 14 August 2017.

Compulsory treatment

Compulsory treatment may involve detention in a mental health treatment facility and the forcible administration of medication.

People who are detained for compulsory mental health treatment have in most instances not committed any offence or crime.

On any given day around 3000 people are receiving compulsory mental health treatment in Victoria.

Mental Health Tribunal decision-making

The Mental Health Tribunal oversees and authorises compulsory treatment and decides whether a person has met the criteria for ECT.

In 2015–16, the tribunal conducted 707 ECT hearings. It made orders for ECT in 620 cases (88 per cent) and refused applications in 86 cases (12 per cent).

In this period VLA represented clients in approximately 65 ECT hearings (less than eight per cent). In New South Wales the comparable figure is 76 per cent.

In the majority of cases the tribunal orders the maximum duration of treatment orders (21–26 weeks) and the maximum number of treatments (12).

In 2015–16 the tribunal conducted 7478 hearings to determine whether a person would receive compulsory treatment. The tribunal made 5605 compulsory treatment orders.

Visit the Mental Health Tribunal website for statistics for the first three quarters of 2016–17

Legal help at the Mental Health Tribunal

Legal help and representation is vital for a person who is facing a tribunal hearing about the administration of ECT against their will. It means hearings are fairer and decisions are made in accordance with the law.

Yet despite the serious and far-reaching decisions being made at the tribunal about ECT treatment, in more than 90 per cent of hearings, there is no legal representation.

People in this situation may be unwell and overwhelmed by the process and lawyers make a big difference to the outcome. In 2015–16 the tribunal approved 88 per cent of ECT applications. This falls to 50 per cent where a person is legally represented.

One of the main reasons for low rates of legal representation is that the tribunal is rushing ECT applications on urgently. In 2015–16, 50 per cent of ECT applications were heard within 24–48 hours. This makes it impractical for our lawyers to attend.

Holding a hearing within 24 hours does not give patients adequate time to get information and prepare for the hearing.

What the research says about the impact of legal help

Last year consultant psychiatrist Dr Michael Gardner conducted an audit of 759 hearings at the Mental Health Tribunal.

His findings showed that patients with legal representation were given lengthier hearings and shorter periods of compulsory treatment than those who were unrepresented.

The audit also revealed that lawyers represented patients in less than a quarter of the 128 hearings involving applications for ECT. However 41 per cent of those hearings resulted in patients avoiding the procedure, compared with five per cent when lawyers were not involved.

Our senior lawyer Eleanore Fritze recently conducted research into international models of legal help for people facing detention for mental health conditions. She found that in many countries including the UK and USA, legal help is available at all such hearings.

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.