Electroconvulsive treatment (ECT)

Electroconvulsive treatment (ECT)

What is ECT?

Electroconvulsive treatment (ECT) is a medical procedure where ‘electric current is applied to specific parts of a person’s head to induce a generalised seizure’ (s. 3) within the brain. It is aimed at reducing some of the symptoms of mental illness and is performed under general anaesthetic.

The introduction of the Mental Health Act 2014 (Vic) brings in new safeguards for people for whom ECT is proposed, including the requirement that only the Mental Health Tribunal can authorise ECT for a person under 18 years old, and ECT for adult compulsory patients who do not have capacity to give informed consent and where there is no less restrictive way for them to be treated.

The Act makes it clear that ECT is an extraordinary form of treatment, and that this treatment (like neurosurgery) should only be performed without consent in very limited situations. This view of ECT is supported by the requirement for young people that the treatment cannot be given without authorisation by the tribunal, even if the young person consents to it.

This section covers the requirements that must be satisfied before ECT can be given, as well as some steps you can take when acting in an ECT matter.

Overview of the law: when ECT can be given

When ECT can be given depends on a person’s age (whether they are an adult or a young person (under 18 (s. 90)), and legal status (whether a voluntary or compulsory patient).

The Mental Health Act 2014 (Vic) provides that ECT can be performed on a person in one of two ways:

  • with informed consent (adults), or
  • when authorised by the Mental Health Tribunal.

With the person’s informed consent (adults)

ECT can be performed on an adult who gives informed consent. Even if the person is a compulsory patient (or a security or forensic patient), they may still be able to give informed consent to ECT in accordance with section 92(1)(a) (see s. 69 for a definition of informed consent). This is consistent with the framework of the new Act, which distinguishes between the criteria for making compulsory orders (e.g. the treatment criteria), and a person’s capacity to consent to a particular treatment, consistent with the presumption of capacity (see s. 70 and ss. 11(1)(a)).

Where an adult gives informed consent it must be given personally and recorded in writing (s. 92(1)(a)) and specify the particular ‘course of ECT’. A ‘course of ECT’ can be a maximum of 12 individual treatments of ECT performed within a period of six months (maximum).

The steps the authorised psychiatrist must take to show that a person is able to give informed consent to ECT are outlined in the Department of Health’s Form MHA 131 – ECT Informed Consent.

In this situation, prior authorisation from the Mental Health Tribunal is not required before ECT is performed, however if a person withdraws their consent mid-course for example, they could only be given further ECT if authorised by the tribunal. See When an adult’s informed consent previously given is withdrawn.

ECT for voluntary patients (adults)

Although ECT for adults who are voluntary patients is independent of the Act, the Chief Psychiatrist’s guidelines recommend that clinicians goes through the same process to seek informed consent as that prescribed under the Act. See the Chief Psychiatrist’s Guideline on ECT’ at p. 18.

Practice tips

  • Where a client has previously consented to ECT, it may be worth enquiring if there has been any change – have they now withdrawn consent or do they wish to do so? If consent has been withdrawn, seek your client’s instructions to request an immediate stop to ECT, in accordance with s. 91(3)(c).
  • If an application is then made to the tribunal in order to continue ECT, you should advise your client of the criteria and consider whether to assist them at their hearing.

When authorised by the Mental Health Tribunal

If a person does not give informed consent, ECT can otherwise only be performed by an authorised psychiatrist if the Mental Health Tribunal makes an order for its authorisation (s. 92(1)(b) and (2)). If an authorised psychiatrist proposes to use ECT treatment, they must apply to the tribunal for permission in relation to:

  • an adult compulsory patient (or security or forensic patient), who is not able to provide informed consent to ECT (s. 93(1)), or
  • any person under 18 (a young person), regardless of whether they are consenting or are a voluntary or compulsory patient (s. 94 (1) and (2).

Practice tips

Given the particular distinction for young people – that ECT cannot be performed without the tribunal’s authorisation, even if the person consents – an advocate for a young person should scrutinise any ECT application to the tribunal carefully.

If the tribunal authorises ECT, it must make an order which specifies:

  • the number of treatments to be performed (no greater than 12 – ss. 91(1)(a) and 97(a)), and
  • the date by which the treatment must be completed (within six months of the date of granting the application – ss. 91(1)(b) and 97(b)).

If the tribunal refuses the application, ECT must not be given.

Practice tip

When an application is made for an ECT order, the key issues to consider are whether there is sufficient evidence to satisfy the Tribunal of the two criteria, that:

  • the person does not have capacity to give informed consent to ECT, and
  • ECT is the least restrictive way the person can be treated (having regard to any beneficial alternative treatments and whether they have been considered and/or tried).

Other issues related to ECT are likely to include the number of treatments, and over what duration, both of which must be supported by the evidence and set out in any order made by the tribunal.

Overview of the law: when ECT must be stopped

When an adult’s informed consent previously given is withdrawn

If ECT has commenced because informed consent was given and this consent is subsequently withdrawn, the Act deems that that particular course of ECT treatment comes to an end (s. 91(3)(c) and s. 98(1)(a)). If the authorised psychiatrist has concerns that the person lacks capacity to give an informed withdrawal of consent, they should seek an ECT order from the mental health tribunal. Such an application can only be made in respect of a compulsory patient.

When ECT previously authorised by the tribunal

In certain circumstances, tribunal authorisation will no longer be effective and ECT must be stopped. This applies where:

  • an adult or young person regains capacity to give informed consent and subsequently refuses to give consent during a course of ECT (s. 98(1)(b) and (2)(b))
  • a young person provided informed consent and subsequently withdraws that consent (s. 98(2)(a))
  • a legally authorised person who provided consent for a young person subsequently withdraws that consent (s. 98(2)(c))
  • an adult ceases to be a compulsory patient (e.g. The Mental Health Tribunal later revokes their (temporary) treatment order) and they do not provide informed consent to ECT
  • the provisions in s. 94 make clear that the performance of ECT on a 'patient' can only take place in accordance with the Act.

Practice tip

In any of the first four situations above, the psychiatrist cannot continue with ECT unless the tribunal authorises a new course of ECT. The authorised psychiatrist could apply for such authorisation, provided they were satisfied the relevant criteria were met.

Remember that the ECT decision by the tribunal is a point-in-time decision and that if the application is refused, the authorised psychiatrist can always reapply if they're satisfied that the criteria are met.

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