Victoria Legal Aid

Electroconvulsive treatment (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.

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What is electroconvulsive treatment (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) brought 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.

When ECT can be given

Whether 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.

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 s. 92(1)(a) (see s. 69 for a definition of ‘informed consent’). This is consistent with the framework of the 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 ss. 70 and 11(1)(a)).

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 ConsentExternal Link

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.

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).

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 can the Mental Health Tribunal authorise ECT?

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 permitting them to do so (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))
  • an adult voluntary patient where ECT has been consented to by that person in an instructional directive made under the Medical Treatment Planning and Decisions Act 2016 (Vic)
  • an adult voluntary patient where there is no instructional directive under the Medical Treatment Planning and Decisions Act 2016 (Vic), but informed consent in writing is given by the person’s Medical Treatment Decision Maker appointed under the Medical Treatment Planning and Decisions Act 2016 (Vic) (see s 94A of the Mental Health Act 2014).

Practice tips for young people

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 tips for adults

When an application is made for an ECT order, the criteria in s 96 (1)(a)(i) & (ii) of the Act that the Mental Health Tribunal must consider are:

  • whether the person lacks capacity to give informed consent to ECT (s 96 (1)(a)(i)), and
  • whether ECT is the least restrictive way the person can be treated (s 96 (1)(a)(ii)(having regard to any beneficial alternative treatments and whether they have been considered and/or tried).

If the Mental Health Tribunal is satisfied that both the criteria in s 96 of the Act are met, it can make an order under s 97 of the Act to grant the ECT request. In doing so, the Mental Health Tribunal must specify the number of ECT treatments to be performed (s 97 (a)) as well as the date by which the course of ECT must be completed, being a date that is within 6 months after the date on which the Tribunal grants the application for ETC (s. 97(b)).

Note: Voluntary patients and ECT- 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 ECTExternal Link (at p. 18)..

When ECT must be stopped

Yes, the Act provides in s. 98(1)(a) that ECT cannot be performed on an adult patient if they withdraw their consent where they previously gave informed consent to do so pursuant to s 92(1)(a). In the case of a young person, s. 98(2)(a) provides that ECT cannot he provided where a young person withdraws their consent.

If the authorised psychiatrist considers that the person lacks capacity to give an informed withdrawal of consent, they must stop the current course of ECT and make an application to the Mental Health Tribunal as set out in s. 93 and s. 94 of the Act seeking an order to continue such treatment.

In the situation where a legally authorised person who provided consent for a young person subsequently withdraws that consent, s. 98(2)(c) of the Act states that ECT cannot continue to be performed.

Yes, the Act provides at s. 98(1)(b) ECT must not be performed where an adult patient develops capacity to give informed consent and subsequently does not consent to treatment (where previously ordered by the MHT pursuant to s. 96(1)(a)).

In regard to a young person, s. 98(2)(b) provides that ECT must not be performed where a young person develops the capacity to give informed consent and does not consent to the treatment. Section 91(3)(c) notes that ECT ends where either an adult patient or a young person withdraws their consent where they have capacity to do so.

Practice tip

IAn authorised psychiatrist is not permitted to continue with ECT unless the Mental Health Tribunal authorises a new course of ECT.

More information

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

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