Electroconvulsive treatment – Tim’s capacity to give informed consent

Our team recently acted for Tim*, a 57-year-old man who was adamant that he did not want electroconvulsive treatment. He had previously experienced unpleasant side effects from this form of treatment including apparent irreversible retrograde amnesia and was quite scared about undergoing it again.

Tim’s case will be important in clarifying how a person’s capacity to make decisions about electroconvulsive treatment should be determined under the new Mental Health Act 2014.

The Mental Health Tribunal had authorised his treatment and Victoria Legal Aid has now applied to theVictorian Civil and Administrative Tribunal (VCAT) seeking clarity on this decision.

We understand this is the first matter under the new Act to be considered by VCAT.

The issues

When the Mental Health Tribunal first heard his case, Tim’s treating team argued that electroconvulsive treatment had been effective in keeping Tim out of hospital and functioning independently. Their belief was that as Tim’s mental illness was ‘treatment resistant’ and there were very few alternative treatment options available.

Tim, on the other hand, was prepared to return to hospital rather than continue receiving monthly electroconvulsive treatment.

The law

Under section 96(1)(a)(i) of the Mental Health Act the Mental Health Tribunal must grant an application for electroconvulsive treatment if it is satisfied that the patient does not have capacity to give informed consent, and there is no less restrictive way for the patient to be treated. A person is defined as having capacity to give informed consent (s. 68), if the person:

1. understands information relevant to the decision
2. is able to remember the information that is relevant to the decision
3. is able to use or weigh information that is relevant to the decision
4. is able to communicate the decision.

Further, the Act provides a number of principles to guide how capacity should be determined, including that capacity to give informed consent is specific to the decision to be made and may change over time (s. 68(2)).

Mental Health Tribunal decision

The Tribunal found:

1. Tim could not understand information relevant to the decision because he did not believe he had an illness and this constituted an impairment in understanding.
2. Due to amnesia arising from an acute phase of electroconvulsive treatment, Tim had no memory of an acute relapse in the recent past. Accordingly this constituted an impairment in memory.
3. Tim’s views about electroconvulsive treatment were delusional and the product of illness and therefore he was unable to use and weigh relevant information.
4. It was satisfied Tim was able to adequately communicate.

The Mental Health Tribunal also appeared to find that there was no less restrictive way for Tim to be treated.

It therefore authorised electroconvulsive treatment.

The case argued at VCAT

The first VCAT case under the Act – an application for electroconvulsive treatment – ran for a full day on 7 August 2014. Tim was represented by Victoria Legal Aid lawyers Hamish McLachlan and Greg Buchhorn (instructing) who argued that:

• the tribunal cannot be satisfied that a person cannot understand, remember or weigh the relevant information unless the person has been given the relevant information
• the concept and definition of ‘adequate information’ under section 69 must be considered when determining what is the ‘relevant information’ under section 68
• in considering capacity, the tribunal must have regard to the patient’s ability to understand, remember, weigh information relevant to the decision to be made, not other matters
• a person who does not agree that they have a mental illness and consequently would not accept any treatment on a voluntary basis may nevertheless be able to make an informed choice between two different forms of compulsory treatment (that is, electroconvulsive treatment versus medication).

Senior Member Proctor has reserved his decision.

*not his real name