Seek full instructions on your client’s views and wishes
Reviewing available evidence (including obtaining a second opinion where appropriate) will assist you to advise your client on their options, negotiate with the treating team, work with other supports (such as housing providers) and effectively appear in the tribunal
Thorough consideration of the material helps you to:
- understand the perspective and evidence of the treating team, and whether it has sufficient or correct information about your client, and
- decide whether negotiating an alternative outcome for your client is possible.
This enquiry is critical, to ascertain the full history and understand the process by which treatment decisions were made – it can be tested and further explored through evidence.
Identify your client’s situation
Age: Is the person an adult (18 or older) or a young person?
- Different provisions apply to ECT for adults and ECT for young people (which always need tribunal authorisation).
- What diagnosis of mental illness does the person have, that requires treatment?
- Does the person have any other medical conditions that require managing?
- Is the person voluntarily receiving treatment for mental illness or are they subject to an order for compulsory treatment (e.g. A treatment order)?
Stage of ECT treatment
- Is ECT already being administered? Where it appears that a person may have regained capacity to give informed consent and are refusing ECT or have withdrawn their consent, advocating for ECT to stop with the treating team may be appropriate. This may involve requesting a new capacity assessment or a second opinion. Alternatively, it may be possible to seek injunctive relief from the Supreme Court.
- Otherwise, it is likely the person will need help responding to an ECT application before the tribunal.
Consent to ECT
- Does the adult person consent to ECT? If so, ECT may proceed. If the person does not consent to ECT, then you will need to explore whether the person has the capacity to give an informed refusal.
Instructions on criteria for ECT that the tribunal must consider
- Whether they have the capacity to give informed consent:
- What information were they given about ECT?
- How long did they have to consider this information and consult with anyone else they desired?
- How are they using or weighing up that information to come to a decision? What are the reasons for their views and have these views been consistent?
- Whether there is another less restrictive way for them to be treated:
- What other alternative treatments is the person considering and why?
- What is the reason for the person’s views about treatment?
- What factors are important for them? Would they be prepared to stay in hospital longer and try other treatments first?
- Do they have an advance statement, a nominated person or other support person to assist or provide more information?
- What treatment (including previous ECT) has the person received, if any, so far?
- What have been their experiences of treatment (particularly any proposed treatment)?
- Would they agree to treatment, or another form of treatment?
- Does a nominated person or guardian or carer have a view on or preferences for treatment?
Mental Health Tribunal authorised ECT
- Has an application been made to the Tribunal? If treatment is being proposed it may be possible to advocate on the person’s behalf to the treating team as well as representing them before the Mental Health Tribunal.
Is it an urgent application?
- If a hearing by the tribunal is pending.
- If a decision has been made by the tribunal, what are the options for review/appeal or to negotiate with the treating team? This will determine whether advocacy should be directed at the treating service and/or the Mental Health Tribunal, VCAT or the Supreme Court.
Location and duration
- If ECT has been authorised, what is the proposed number of treatments?
- When should the course of treatment be finished?
- If this is a new application, is the number and duration of treatment supported by the evidence?
Living arrangements, supports
- Where does the person currently or usually live?
- What supports do they have, what family members and friends are involved in their lives?
- Does the person currently have any contact with a health service (including a mental health service) or other service?
Accessing the medical files and clinical report
- Are the files and clinical report consistent with your client’s instructions?
- Is the report sufficiently detailed, and provide information about capacity assessment, as well as plans for treatment?
- What type of order and duration are recommended (inpatient or community)?
- What information is there about treatments that have been tried, or proposed, and their success or likely success?
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 25 March 2022