Explainer – Supreme Court action on electroconvulsive treatment

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

The Supreme Court has considered whether judgments made by the Victorian Civil and Administrative Appeals Tribunal (VCAT), authorising these treatments for 'PBU' and 'NJE', were lawful. The case was heard on 14–15 August 2017 and 8 June 2018.

This explainer covers:

• What is ECT?
• What does the law say about compulsory ECT?
• About 'PBU'
• About 'NJE'
• Compulsory treatment
• Mental Health Tribunal decision-making
• Legal help at the Mental Health Tribunal
• What the research says about legal help at the Mental Health Tribunal
• What do we want to happen?

What is ECT?

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

What does the law say abo ut compulsory ECT?

Under Victorian law, electroconvulsive treatment (ECT) can only 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 being 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. In December 2016, he 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 December 2017 – PBU was admitted to a psychiatric ward for compulsory mental health treatment.
• 30 January 2017 – PBU’s treating team raised the prospect of ECT with PBU.
• PBU’s treating team made an urgent application for ECT. PBU’s psychiatrist did not conduct a capacity assessment prior to making the application. PBU did not receive legal advice in relation to the application. He was of the misunderstanding that if he did not attend the hearing, it would not go ahead.
• 2 February 2017 – The Mental Health Tribunal hearing occurred in PBU’s absence. The tribunal authorised 12 sessions of compulsory ECT.
• 8 February 2017 – PBU received the first treatment of ECT. PBU was given sedating medication, ‘mechanically restrained to the bed’ and ‘transported to ECT on bed and with restraints’.
• 10–20 February 2017 – PBU received five further treatments against his will.
• 23 February 2017 – Our mental health lawyers became aware of his situation and advocated on his behalf. His psychiatrist then determined that PBU had capacity to make an informed decision about ECT. As he was refusing to consent to it, the ECT was ceased, as is required by the Act.
• 14 March 2017 – The tribunal rejected a further application for ECT from the treating team, ruling that the criteria for compulsory treatment were not met and accepting that PBU had capacity to refuse treatment.
• 19 April 2017 – After a further application from the treating team, the tribunal found the ECT criteria was met and authorised 12 further ECT treatments.
• 21 April 2017 – Acting on behalf of PBU, Victoria Legal Aid (VLA) successfully applied for a stay of the tribunal's order, preventing ECT treatment until the Victorian Civil and Administrative Tribunal (VCAT) was able to review the tribunal decision.
• 31 May 2017 – VCAT affirms the tribunal’s decision, authorising 12 ECT treatments in 10 weeks.
• 28 June 2017 – PBU appealed to the Supreme Court against VCAT’s decision.
• 5 July 2017 – The Supreme Court granted a stay of VCAT’s order, preventing ECT treatment until the appeal was determined.
• 14–15 August 2017 – The appeal was heard in the Supreme Court by his Honour Justice Bell.
• November 2017 – PBU was discharged from the hospital on a community treatment order, with medication and without having had any further ECT.
• 8 June 2018 – The Supreme Court heard further argument on legal issues arising from the appeal.
• 1 November 2018 – The Supreme Court grants an appeal against the VCAT and Mental Health Tribunal orders and sets them aside.

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 2017 – 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 2017 – VLA successfully seeks a stay to prevent ECT. NJE continues to receive medication in hospital.
• 19 July 2017 – VCAT affirms the tribunal’s decision to administer ECT.
• 20 July 2017 – NJE appeals VCAT’s decision to the Supreme Court.
• 21 July 2017 – The Supreme Court granted a stay of VCAT’s order, preventing ECT treatment until the appeal was determined.
• 14–15 August 2017 – The appeal was heard in the Supreme Court by his Honour Justice Bell.
• January 2018 – NJE was discharged from the hospital on a community treatment order, with medication and without having received ECT.
• 8 June 2018 – The Supreme Court heard further argument on legal issues arising from the appeal.
• 1 November 2018 – The Supreme Court grants an appeal against the VCAT and Mental Health Tribunal orders and sets them aside.

The cases of 'NJE' and 'PBU' were heard together in the Victorian Supreme Court on 14–15 August 2017 and 8 June 2018.

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.

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 2016–17, the tribunal conducted 688 ECT hearings. It made orders for ECT in 588 cases (85 per cent) and refused applications in 100 cases (15 per cent).

In this period VLA represented clients in approximately 47 ECT hearings (around six per cent). In New South Wales the comparable figure is 68 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 2016–17 the tribunal conducted 6296 hearings to determine whether a person would receive compulsory treatment. The tribunal made 5925 compulsory treatment orders.

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 2016–17 the tribunal refused ECT applications when patients were unrepresented 12 per cent of the time. When patients were represented by a VLA lawyer, the tribunal refused ECT applications over 50 per cent of the time.

One of the main reasons for low rates of legal representation is that the ECT applications are being rushed with unnecessary urgency. In 2016–17, 59 per cent of ECT applications were heard urgently. This means that 46 per cent were heard within 24 hours of the application being made and 14 per cent were heard on the same day that the application was made. 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 has also 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 Naomi Woodley – (03) 9280 3882 or 0409 281 304 or Naomi.Woodley@vla.vic.gov.au