Victoria Legal Aid assisted Tim* to apply to VCAT after the Mental Health Tribunal authorised electroconvulsive treatment. Tim, a 57-year-old man, was adamant that he did not want this treatment.
The tribunal has now made its decision and found, on the evidence brought before it, that Tim:
- did not have capacity to give informed consent
- could not be treated in a less restrictive way.
VCAT therefore made an order for compulsory electroconvulsive treatment, but reduced the number of treatments permitted under the order from 12 to 8.
Clarifying the law
In relation to developments in the law, VCAT made it clear that:
- there is no onus on patients to satisfy the decision maker of their capacity in order to avoid compulsory electroconvulsive treatment
- a person who disagrees that they have a mental illness may nevertheless have capacity to decide whether to receive electroconvulsive treatment or some other compulsory treatment.
Issues which will require further clarification in the future
How 'relevant' information is determined
In relation to our submissions about the capacity to give informed consent, VCAT clarified that the cognitive decision-making skills referred to in section 68 (understanding, remembering, using and communicating information) must be assessed in relation to the information that is 'relevant' to the specific decision.
However, it remains unclear how the Mental Health Tribunal should determine what information is 'relevant' and to what extent the relevant information needs to have actually been provided to the person in order for their capacity to be assessed.
How reasonably available alternative treatment is determined
VCAT found Tim's preferred way of being treated was not a reasonably available alternative. Further, on this basis the Mental Health Tribunal found it unnecessary to determine whether Tim's preferred way of being treated was less restrictive than electroconvulsive treatment.
However, the VCAT decision leaves open what factors the Mental Health Tribunal needs to take into account when deciding whether an alternative treatment is 'less restrictive than electroconvulsive treeatment. It also left open the extent to which the patient's views and preferences should determine this.
*not his real name
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Reviewed 25 January 2022