The Supreme Court of Victoria has today made a landmark decision that strengthens the rights of mental health patients who are facing electroconvulsive treatment (ECT) or ‘electro-shock treatment’ against their will.
This is the first time the court has considered laws that govern the use of compulsory ECT.
We appealed to the Supreme Court on behalf of clients ‘PBU’ and ‘NJE’ to clarify when ECT can happen without patient consent. Both had ECT ordered against their will by the Mental Health Tribunal. The Victorian Civil and Administrative Appeals Tribunal (VCAT) authorised those decisions.
NJE was facing 12 ECT sessions – ordered at a hearing where she did not have a lawyer. We began representing PBU after he had ECT without his consent in 2017.
‘It was one of the most traumatic days of my life, when I was taken into the ECT room and held down on the bed. I didn’t know I was going to have ECT.'
‘The most terrifying aspect of having ECT is that I didn’t know what state I would be in after.’
'PBU'
In this appeal, we asked the court to consider important criteria governing the administration of ECT, including a person’s capacity to consent or refuse to treatment.
In his judgment, Supreme Court Justice Kevin Bell found that VCAT had misapplied the law in relation to whether PBU and NJE had the capacity to decide if they wanted ECT, and breached their human rights.
His Honour ruled that mental health patients should face the same standard as all other people when their capacity to consent is assessed.
'The issue is closely connected with the need to respect the human rights of persons with mental disability by avoiding discriminatory application of the capacity test. More should not be expected of them, explicitly or implicitly, than ordinary patients.’ [173]
‘When respect is afforded to the choice of the person to consent to or refuse medical treatment, the person is recognised for who they are.’ [199]
Supreme Court Justice Kevin Bell
PBU and NJE's lawyer, and Victoria Legal Aid Acting Program Manager for Mental Health and Disability Advocacy, Hamish McLachlan described the decision as 'a significant decision for mental health patients.'
‘The decision provides clear guidance that mental health patients have the same fundamental human rights as everyone else in the community, and decisions about their treatment must be made in accordance with those rights’.
Hamish McLachlan, Acting Program Manager, Mental Health and Disability Advocacy
'This case isn't about ECT being good or bad. We have clients who agree to have ECT and find it helpful. This case was about ensuring that the Tribunal process protects patients' human rights and this judgment should ensure that happens into the future,’ Hamish said.
The Tribunal considers around 700 applications for compulsory ECT per year.
We are also concerned that mental health services are making too many requests for urgent hearings when the legal test required for urgency has not been met. Almost 60 per cent of applications for compulsory ECT are made urgently in Victoria, leaving very little time for patients to get legal information and help.
'Supporting people in these hearings can make a big difference to the outcome,' Hamish said.
'PBU and NJE overturned ECT applications with the assistance of lawyers, but not when they were unrepresented.'
‘I wish I had a lawyer or an Independent Mental Health present for the first Mental Health Tribunal hearing where they approved ECT,' PBU said.
'I didn’t know I could have a lawyer then and I think it would have made all the difference. I didn’t think I had a chance to put my case forward in an equal way.’
More information
For more information about this case, including the case chronologies for PBU and NJE and the laws governing ECT see our Explainer – Supreme Court action on electroconvulsive treatment.
Read our PBU & NJE v Mental Health Tribunal case note.
Media interviews
Hamish McLachlan is available for interview. Please contact Senior Communications Advisor Naomi Woodley to arrange interviews on (03) 9280 3882 or 0409 281 304 or Naomi.Woodley@vla.vic.gov.au
Please note that PBU and NJE are not available for interview or photograph.
Reviewed 19 April 2022