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Victoria Legal Aid wins appeal in ‘landmark’ Supreme Court case
Victoria Legal Aid has won an appeal for two clients in relation to the subjection of electro-convulsive treatment against their will.
Emma Musgrave
Late last week, Victoria Legal Aid (VLA) appealed to the Supreme Court of Victoria on behalf of clients, known to the court as ‘PBU’ and ‘NJE’, to clarify whether electro-convulsive treatment (ECT) can be permitted without patient consent.
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ECT, more commonly known as ‘electro-shock treatment’, was ordered to be applied to PBU and NJE against their will by the Mental Health Tribunal, with the Victorian Civil and Administrative Appeals Tribunal (VCAT) authorising those decisions, according to a statement from VLA.
The legal aid body told Lawyers Weekly that it began representing PBU after he had ECT without his consent in 2017. Meanwhile, NJE was facing 12 ECT sessions, which VLA explained was ordered at a hearing where she did not have a lawyer.
In its appeal, VLA asked the court to “consider important criteria governing the administration of ECT, including a person’s capacity to consent or refuse treatment”.
In handing down his decision, 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. In addition, Justice Bell ruled “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,” Justice Bell said.
“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.”
Hamish McLachlan, VLA acting program manager, mental health and disability advocacy, and PBU and NJE’s lawyer, described the decision as a landmark victory, noting that the decision will help strengthen patients’ rights in ECT cases going forward.
“This is a significant decision for mental health patients because it strengthens their rights to have control over their treatment and to be treated equally with other members of the community,” Mr McLachlan said.
“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.
“This case isn’t about ECT being good or bad – we have clients who agree to have ECT and find it helpful. This case is about ensuring that the tribunal process protects patients’ rights.”
