Which of the following is not a guideline for considering whether or not to use media in your speech

Under section 93, the authorised psychiatrist can apply to the tribunal to authorise a course of ECT if:

1. the patient does not have the capacity to give informed consent to receive the course of ECT on himself or herself, and
2. the psychiatrist is satisfied in the circumstances that there is no less restrictive way for the patient to be treated.

For more information about these factors, see Step 3: The tribunal considers the application.

Young people

If an authorised psychiatrist proposes to perform ECT on a young person, they must seek authorisation from the Mental Health Tribunal. Applications to perform ECT on a young person can be made in the following circumstances:

1. The young person gives informed consent to ECT (as a voluntary or compulsory patient) in writing.
2. The young person does not have capacity to give informed consent to ECT, and (if voluntary) the person who is legally authorised to consent to treatment for the young person (for example, parent or guardian) gives informed consent in writing to the ECT, and there is no less restrictive way for the young person to be treated, other than with ECT.
3. The young person does not have capacity to give informed consent to ECT and (if compulsory) there is no less restrictive way for the young person to be treated, other than with ECT.

If a young person has capacity to give informed consent and does not give consent to ECT, the Act requires that ECT not be given. Likewise, where the consent of the legally authorised person is required and consent is not given, ECT must not be given to the young person.

See Getting access to information and the clinical file in practice.

Step 2: The tribunal lists the ECT application for hearing

The listing and hearing process for ECT applications is similar to the process for other hearings, except that the hearing will be conducted by a special division of the tribunal, constituted by a legal member, a psychiatrist member and a community member (ss. 178–179). All ECT hearings must be heard within five business days of the application being received by the tribunal (s. 95(1)).

Urgent hearings

A psychiatrist may request an urgent hearing of an application for ECT (s. 95(2)), if the treatment is necessary to:

• save the life of an adult patient or a young person
• prevent serious damage to their health, or
• prevent them from suffering or continuing to suffer significant pain or distress.

The tribunal must list and complete the hearing of an urgent application for ECT as soon as practicable after receiving the application.

• If the hearing is listed urgently and within 1–2 days of the application and the client has only received the report less than 48 hours prior to the hearing, consider whether to apply for the application to be stood down, adjourned or dismissed and seek your client’s instructions.
• The tribunal is still bound by the rules of procedural fairness. Check through the file to ascertain the reasons for and evidence urgency and challenge them if your client instructs you to do so. This will enable you to consider submissions on the impact of the tribunal’s decision to proceed or not with the hearing, or to adjourn the matter.

Read more about The Mental Health Tribunal – its role and powers.

Under s. 96(1), in considering an application for ECT, the tribunal must:

1. grant the application, if it is satisfied that:
   1. the patient does not have capacity to give informed consent
      and
   2. there is no less restrictive way for the patient to be treated, or
2. refuse to grant the application if it is not satisfied of these elements.

Under the Act the tribunal is not bound by the rules of evidence and may inform itself on any matter it sees fit (s. 181(1)(c)). In hearing evidence and making decisions, the tribunal must follow rules of procedural fairness and conduct hearings as expeditiously and with as little formality and technicality as possible. This can include allowing the person an opportunity to access their clinical file and/or speak with a lawyer/advocate.

See the tribunal’s guides to solution-focused hearings and procedural fairness .

For more information on Tribunal hearings and the decision-making framework, see The Mental Health Tribunal – its role and powers.

During the ECT hearing, test the evidence of the two factors to be satisfied in s. 96(1)(a).

Emphasise that the legislation states the tribunal must refuse the application if not satisfied of both limbs of the test.

The tribunal may only grant an application for ECT where it is satisfied on the evidence before it that the person lacks capacity to give informed consent (s. 96(1)(a)(i)). The rationale behind this test is that, even where a person is under a compulsory treatment order, they should be given the opportunity to give an informed refusal of ECT.

What is capacity?

The Act does not include a specific definition of capacity to consent to ECT. Capacity to give informed consent is defined under s. 68(1) as follows:

A person has capacity to give informed consent under this Act if the person:

1. understands the information he or she is given that is 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, and
4. is able to communicate the decision he or she makes by speech gestures or any other means.

Under the Act, compulsory patients are presumed to have capacity (s. 70(2)). Therefore, the evidence presented to the Mental Health Tribunal must show that the person does not have capacity (as opposed to the onus being on the person to show that they have capacity).

Section 69 sets out the definition of ‘informed’ consent.

Capacity principles

Whenever a capacity assessment is undertaken (including by the Mental Health Tribunal and the authorised psychiatrist), certain principles must be considered. Capacity is not a fixed state but can fluctuate, and is decision-, context- and time-specific. The principles (s. 68(2)) to be considered by the Tribunal at the hearing, as well as each time a capacity assessment is conducted, are:

1. A person's capacity to give informed consent is specific to the decision that the person is to make.
2. A person's capacity to give informed consent may change over time.
3. It should not be assumed that a person does not have the capacity to give informed consent based only on his or her age, appearance, condition or an aspect of his or her behaviour.
4. A determination that a person does not have capacity to give informed consent should not be made only because the person makes a decision that could be considered to be unwise.
5. When assessing a person's capacity to give informed consent, reasonable steps should be taken to conduct the assessment at a time at, and in an environment in, which the person's capacity to give informed consent can be assessed most accurately.

If a capacity assessment is outdated or fails to take into account changes in the person’s situation, it may not be sufficient to satisfy the tribunal that the presumption of capacity has been displaced.

If a capacity assessment lacks detail in relation to a specific type of treatment, it may be possible to argue that it should be set aside and that the tribunal should inform itself specifically on capacity in relation to the type of treatment under consideration.

See Taking instructions and the presumption of capacity.

• Evidence of capacity assessments: ask the treating team for details and evidence of any capacity assessment, including the information that was provided to the patient, how it was communicated, answers to any questions, time given to consider the information, views of relevant parties, any second opinions, and so on – the clinical file should detail this. If there is no evidence about how the issue of capacity was considered, question the authorised psychiatrist about any assessment they undertook. Make your own enquiries and obtain any positive evidence that your client has capacity to provide informed consent.
• Don’t confuse an ‘unwise’ decision with incapacity.
• ‘Lack of insight’ doesn’t necessarily mean incapacity: even though a person doesn’t agree they have a mental illness, they may still have capacity to make a decision about ECT or other alternative treatments.
• Understand your client’s motivations and reasons: this is useful in making a submission about how and why a person can weigh the information.
• Lack of information: if a person hasn’t been provided with any information about ECT, question whether capacity (or incapacity) can even be assessed.

Case examples – ‘test’ of incapacity, standard of capacity and evidence required

PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018)

In PBU, Justice Bell stated regarding the capacity test at 134:

It is to be noted that this standard is directed mainly at whether the person has certain abilities (not whether the person has actually chosen to exercise them) (emphasis added)

And at 176–178:

‘the capacity threshold is a ‘low one’… A capacity test applying to people with mental disability is plain-bread discriminatory on that ground if the standard of functioning required of those persons is greater than the relatively low standard required of people generally. As we have seen, the general capacity standard of the common law requires only that the person, whether mentally disabled or not, is able to understand the general nature, purpose and effect of the medical treatment, transaction or proceeding in question.

And at 182:

and ‘the question is whether the person understands and is able to remember and use or weigh the relevant information, and communicate a decision, in terms of the general nature, purpose and effect of the treatment, not whether the person can make a sensible, rational or well-considered decision’ (emphasis added)

And at 228:

to rebut the presumption of capacity, it is not sufficient to find that a person does not accept or believe the diagnosis that the person has a mental illness or that the person has no insight into the need for treatment. According to the statutory criteria, a person may not have that acceptance, belief or insight yet may have capacity to give an informed consent, although these matters may be factually relevant in the overall consideration. This is important if the capacity criteria and are to be applied in a manner that is non-discriminatory towards and respects the autonomy space of people with mental illness.

Mental Health Tribunal case examples

The VCAT decision of EWL v Mental Health Tribunal (Human Rights) [2014] VCAT 1152 (25 August 2014) confirmed that there is no onus on patients to satisfy the decision maker of their capacity in order to avoid ECT. VCAT also made clear that a person who disagrees that they have a mental illness may nevertheless have capacity to decide whether to receive ECT or some other compulsory treatment.

In the case of QQM [2014] VMHT 58 (27 October 2014) the tribunal held that ‘it would be contrary to the mental health principles under the Act that the test [of capacity] under section 68 should be construed too high or to expect from a patient an overly perfect understanding or articulation as to the nature, benefits or risk of ECT’. In that case, the tribunal was not satisfied the person lacked capacity to give informed consent despite considering his capacity was ‘impaired’ and his ‘understanding of what ECT entailed was rudimentary’.

In the case of RVZ [2014] VMHT 23 (10 September 2014) a majority of the tribunal held that a consistent negative opinion about ECT and refusal to agree to it was not interpreted as an inability to weigh the necessary information. In that case, a majority of the tribunal found the person could weigh the information.

Is there no less restrictive way to treat a person other than with ECT?

In addition to considering capacity to consent, the tribunal can only grant an application for ECT where there is no restrictive way to treat the person (s. 96(1)(a)(ii)).

‘No less restrictive’ – factors to consider

Under s. 96(3), in determining whether there is no less restrictive way to treat a person, the tribunal must, to the extent that is reasonable in the circumstances, have regard to the matters specified in s. 93(2). These are the same factors that the authorised psychiatrist must consider in deciding whether to make an application for ECT.

These factors are:

1. the views and preferences of the patient in relation to ECT and any beneficial alternative treatments that are reasonably available and the reasons for those views or preferences, including any recovery outcomes the patient would like to achieve
2. the views and preferences of the patient expressed in his or her advance statement
3. the views of the patient's nominated person
4. the views of a guardian of the patient
5. the views of a carer of the patient, if psychiatrist is satisfied that the decision to perform a course of ECT will directly affect the carer and the care relationship
6. the likely consequences for the patient if the ECT is not performed, and
7. any second psychiatric opinion that has been obtained by the patient and given to the psychiatrist.

The factors that need to be considered when determining whether there is no less restrictive way to treat the young person are slightly different to those for adults, and include the views of a person who has the legal authority to consent to their treatment, and the Secretary of the Department of Health, if the young person is subject to a family reunification order or care by Secretary order (s. 94(3)).

‘No less restrictive’ and treatment preferences

Even though a person on a compulsory treatment order can be provided with treatment against their wishes, they can still state a preference between different treatments. For example, even though someone may not wish to have any treatment, they may still prefer medication over ECT if these are the only options.

Given the Act promotes, amongst other things, supported decision-making, dignity of risk and least restrictive treatment (see the mental health principles under s. 11), it is arguable that the tribunal should not grant an application for ECT contrary to a patient’s views and preferences unless all potential alternatives have been tried.

Where there are treatment options other than ECT reasonably available and the person prefers that alternative treatment, the tribunal should be directed to this treatment as less restrictive options. This finding can be made even if there is a degree of risk involved and the person accepts that risk (for example, a longer hospital admission).

However if an alternative treatment is unrealistic or fanciful or there are significant risks to the person’s health if that alternative treatment is adopted, the tribunal may find that it is not reasonably available alternative treatment option. This was the case in the VCAT decision of EWL v Mental Health Tribunal (Human Rights) [2014] VCAT 1152 (25 August 2014) .

Ask your client about whether they feel any differently since their admission to hospital and whether their situation has improved. It can be helpful to ask when the last medication change was introduced, and, if they were previously in the high dependency area, when did they move to the low dependency area. This can assist you in arguing their situation has improved and will continue to do so without the need for ECT.

Review the medical file (including the ECT report prepared for the hearing) and look for details of the diagnosis and when that diagnosis was made, as well as treatment notes.

Seek information (and test this during a hearing) about which treatments are available, have been suggested, tried, and their effects, from:

• your client
  • including instructions on any preferred treatment
  • whether they would accept alternative treatments they may have previously refused.
• the treating team.

Also test evidence of what the risk of deterioration is if ECT is not provided, as this is a relevant factor to be considered by the tribunal when it determines whether there are less restrictive alternatives available (ss. 96(3) and 93(2)). A reduced or low risk of deterioration would provide additional support for the argument that there is an alternative treatment that may take longer but could still be effective (thus removing the need for immediate ECT).

Case examples – when is ECT the ‘less restrictive treatment’?

PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018)

Justice Bell’s comments regarding no less restrictive treatment test

Justice Bell took the view that the no less restrictive treatment test must take a holistic view of recovery and self-determination at 252:

The no less restrictive treatment test is therefore intended to operate under the Mental Health Act in a quite different way to the former best-interests test. It involves a different conception of the relationship between medical authority and the patient: it is one that respects, to a much greater degree, the patient’s right to self-determination, to be free of non-consensual medical treatment and to personal inviolability; one that is intended positively to promote patient participation and supported decision-making; and one that, in appropriate cases, incorporates recovery (and not simply cure) as an important therapeutic purpose in a holistic consideration of the person’s health (broadly understood)

And at 103:

In the mental health context, ‘recovery’ is a term of art. It reflects a contemporary understanding of ‘health’ that is broad — one that requires the social and personal circumstances of the person to be considered and one that is not focused exclusively on preventing and curing illness or disease as such. It emphasises the significance of respecting and promoting patients’ self-determination over time and ensuring that patients avoid dependency and institutionalisation.

Mental Health Tribunal case examples

In the Mental Health Tribunal decision of QQM [2014] VMHT 58 (27 October 2014) the tribunal found that best interests is not the test for ‘least restrictive treatment’. It noted that ‘ECT may well carry the best prospect of accelerating [the client’s] recovery and facilitating his discharge home … [and] the use of ECT may have been in [the client’s] best interests. However, this is clearly not the test under s. 96(1)(a)’.

In the case of IWH (No 2) [2015] VMHT 9 (14 January 2015 ) the tribunal found that ECT was not the least restrictive treatment, even though they found the person lacked capacity and didn’t accept she had a mental illness. The requirements of section 96(1)(a)(ii) of the Act were not met where the person had a strong preference for oral or depot medication over and above ECT, even it that meant a longer stay in hospital. The person’s medication levels were not yet therapeutic and the tribunal found the treating team had not given an adequate trial of oral or depot medication. The tribunal did not grant the application for compulsory ECT and considered there was insufficient evidence that the treating team had considered the person’s preference for oral medication rather than ECT. It also noted the treating team had not adequately considered her views about ECT and her reasons for those views which were based on her past experience of its side effects.

The tribunal order must specify the number of treatments to be performed and the date by which the course of ECT must be completed (s. 97).

A ‘course of electroconvulsive treatment’ is defined as a number of treatments that does not exceed 12, which must be performed within a period of time of six months or less (s. 91(1)(a) and (b)). The period of time starts on the date that the tribunal approves the performance of treatment (s. 91(2)(b)).

Section 98 confirms that ECT must not be performed (at any time before or during a course of treatment) if a person withdraws their informed consent to the treatment, or develops the capacity to consent and subsequently does not consent. To continue with the ECT in this case would be unlawful.

While the tribunal can authorise up to 12 treatments, and for a duration of six months, these should not be considered to be defaults. The number of treatments and duration sought by the authorised psychiatrist must be supported by evidence.

Step 5: After the Mental Health Tribunal hearing – options

If the tribunal makes an adverse decision that is not supported by the evidence or, in your view, fails to correctly apply the law, your client may apply to VCAT for review of the decision (s. 201). You should request a statement of reasons from the MHT if your client intends on seeking review by VCAT. A review to VCAT is a hearing de novo. You should also consider applying for an interim injunction at VCAT to stay the operation of the Mental Health Tribunal’s authorisation.

If VCAT does not apply the law correctly, your client can appeal to the Supreme Court on a point of law. You should obtain a statement of reasons from VCAT and consider whether the matter is a suitable vehicle for an appeal to the Supreme Court on an error of law. Further advice (for example, in relation to Victoria Legal Aid funding) may need to be sought.

Alternatively, a person can also apply to the Mental Health Tribunal to revoke their treatment order or temporary treatment which, if successful, would mean that compulsory ECT can no longer be given. Read more about Challenging a (temporary) treatment order.

Read more about: