The Victorian Civil and Administrative Tribunal (VCAT) had previously determined that PBU and NJE did not have capacity to give informed consent to receiving (or refusing) electroconvulsive therapy (ECT), that ECT was the least restrictive treatment available for both PBU and NJE, and made an order that ECT be administered.

PBU and NJE appealed to the Supreme Court of Victoria, including on the ground that VCAT had erred at law by wrongly interpreting and applying the 'capacity to give informed consent' test referred to in s 96(1)(a)(i) of the Mental Health Act 2014 (Vic) (MHA)

Background facts for PBU

Medical history

PBU had been hospitalised in a psychiatric unit since December 2016, and was the subject of an inpatient treatment order under s 45(3) of the MHA. He was first diagnosed with schizophrenia in 2011.

In February 2017, VCAT made an order for a course of six ECTs. Five were administered in early to late February. In late February, PBU was assessed as having the capacity to decide whether he wanted ECT to continue. He decided he did not want ECT continued and it was stopped.

Proceedings in Victorian Civil and Administrative Tribunal (VCAT)

On 19 April 2017, the Mental Health Tribunal (MHT) ordered that PBU have a further course of 12 ECTs. This order was stayed when PBU applied for it to be reviewed. PBU's application in VCAT was held on 23 May 2017.

PBU's treating psychiatrist and the clinical director of the Mental Health Service presented evidence to the effect that:

  • ECT was the only currently available appropriate treatment for PBU;
  • PBU's mental state was slowly deteriorating;
  • PBU refused to take Clozapinel; and
  • only ECT would allow PBU to become well enough to engage in treatment and improve sufficiently to leave hospital.

PBU gave evidence that he accepted he had mental health problems, including depression, anxiety and post-traumatic stress disorder (PTSD), but not schizophrenia. PBU stated that he did not want to have ECT or any anti-psychotic medication or treatment, as he believed it was not appropriate for him.

Pursuant to s 96(1)(a)(i) of the MHA, VCAT had to decide whether:

  • it was satisfied that PBU did not have capacity to give informed consent under s 68(1); and
  • if satisfied, whether there was no less restrictive way for him to be treated.

VCAT found that PBU understood the information given about ECT, but did not have capacity to give informed consent because he did not accept his diagnosis of schizophrenia. It also found that there was no less restrictive treatment available. In doing so, it rejected the contention that the purposes of the treatment criteria specified in s 5 of the MHA were relevant.

Background facts for NJE

Medical history

NJE had received voluntary and involuntary treatment in the community and in hospital since 2004. In March 2017, NJE was transferred to the secure extended care inpatient unit at Bendigo Hospital. Three applications were made for ECT by the Bendigo medical staff. The first two were rejected. The third was granted by the MHT, which ordered a course of 12 ECTs. Victoria Legal Aid applied to VCAT for a review and obtained a stay of the MHT's order.

Proceedings in VCAT

Dr A deposed that NJE could read, understand and remember the information given to her about ECT, but that she lacked capacity to use and weigh information because she did not accept that she had treatment resistance schizophrenia or mental illness.

Submissions were made on NJE's behalf to the effect that her preferred alternative to ECT was to remain in hospital for an extended period and trial alternative medications, such as Clozapine. NJE was opposed to ECT because she believed it would interfere with her psychic healing abilities, which she greatly valued.

VCAT found that, pursuant to s 68(1) of the MHA, NJE did not have capacity to give informed consent because she could not use and weigh information relevant to the decision. It held that 'to use and weigh requires a person to carefully consider the advantages and disadvantages of a situation or proposal before making a decision… [NJE's] decision to refuse ECT was made without prior consideration of the advantages and disadvantages. NJE could not use and weigh the information because she could not conceive that it applied to her situation because it was her belief that she did not have a mental illness'. VCAT also noted that it had concerns she was awake during the night engaging in what she called 'psychic healing'.

VCAT subsequently found that there was no less restrictive treatment and made an order for ECT to be administered. VCAT again did not consider the treatment criteria specified in s 5 of the MHA.

Grounds of Appeal

The common grounds of appeal can be summarised as follows:

  1. VCAT's reasons did not comply with s 117 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) because it did not disclose how it applied the test under s 68(1) of the MHA to conclude that the plaintiffs did not have capacity to give informed consent.
  2. VCAT erred in law in interpreting and applying the 'capacity to give informed consent' test referred to in s 96(1)(a)(i) of the MHA.
  3. VCAT erred in law in interpreting and applying the 'no less restrictive way for the patient to be treated' test specified in s 96(1)(a)(ii).

In relation to NJE specifically, the following further ground of appeal was identified:

  1. VCAT misconstrued and misapplied s 68(1)(c) of the MHA by asking whether the Plaintiff could 'use and weigh' the information, when the correct test was whether the Plaintiff was not able to 'use or weigh' the information.

Legislative framework

MHA

A person may be subjected to compulsory treatment under a Temporary Treatment Order or a Treatment Order if they meet the criteria specified in s 5 of the MHA. These are that the person has a mental illness and as a result they require immediate treatment to prevent serious deterioration in their mental or physical health, or serious harm to themselves or another. It must also be shown that the immediate treatment will be provided to the person if they are the subject of a Treatment Order or Temporary Treatment Order and that there is no less restrictive means available to enable the person to receive immediate treatment.

Once a person is subject to a treatment order, they may be compelled to undergo compulsory treatment and detention. However, ECT can only be administered without a patient's consent if VCAT is satisfied that the patient does not have the capacity to give informed consent (s 96(1)(a)(i) of the MHA) and that there is no less restrictive was for the patient to be treated (96(1)(a(a)(ii)).

A person has capacity to give informed consent, pursuant to s 68(1), if they can:

  1. understand relevant information given to them;

  2. remember and use or weigh the relevant information; and

  3. communicate their decision.

As a default position, patients are presumed to have capacity to give informed consent, irrespective of whether they have a mental illness (s 70(2) of the MHA).

Charter of Human Rights and Responsibilities Act 2006 Vic (Charter)

A number of sections in the Charter were identified as relevant to this appeal. Broadly speaking, these dealt with the following:

  • Recognition and equality before the law (s 8)
  • Protection from torture and cruel, inhuman or degrading treatment (s 10)
  • Privacy and reputation (s 13)
  • Freedom of thought, conscience, religion and belief (s 14)
  • Freedom of expression (s 15)
  • Right to liberty and security of person (s 21)
  • Humane treatment when deprived of liberty (s 22)

Judgment – Grounds 1 and 4

Ground 1

As a decision under s 96(1)(a)(i) of the MHA involves the application of the criteria specified in s 68(1), s 117(5) of the VCAT Act, it required VCAT to detail its findings of fact in relation to each of these criteria, which it did not do. However, the court held that VCAT complied with s 117(5) by disclosing the path of its reasoning and discussing relevant factors. It was not necessary that each specified criteria to be considered and analysed. As such, this ground was rejected.

Ground 4

The court held that when making the decision to have ECT, some information is capable of being used, other information is capable of being weighed, and other information is capable of both. As such, the expression 'use or weigh' requires the person to be capable of using or weighing the information relevant to the decision depending on the circumstances. Therefore, it may be necessary to be capable of doing both.

On this basis, ground 4 was rejected.

Judgment – Grounds 2 and 3

Engagement of human rights

In the appeals of PBU and NJE, notices were served on the Attorney-General and Victorian Equal Opportunity and Human Rights Commission under s 35(1)(a) of the Charter of Human Rights and Responsibilities Act 2006 Vic (Charter). Collectively, these notices specified questions with respect to the following:

  • The interpretation of ss 68(1) and 96(1)(a)(i) of the MHA in accordance with s 32 of the Charter, read together with ss 8(2), (3), 10(b), (c), 13, 14(1), 15(1), 21(1) and/or 22(1).
  • The interpretation of s 96(1)(a)(ii) of the MHA in accordance with s 32 of the Charter, read together with ss 8(2), (3), 10(b), (c), 13, 14(1), 15(1), 21(1) and/or 22(1).
  • The application of s 38(1) of the Charter to VCAT.

It was submitted on behalf of both plaintiffs that human rights in the Charter influenced, in the direction of self-determination, freedom from non-consensual treatment and personal inviolability, the interpretation and application of the MHA in relation to the provision of treatment.

In commenting on the relevance of the Charter to the MHA, the court observed:

  • Because human rights protect a person's interests in self-determination, freedom from non-consensual medical treatment and personal inviolability, laws and decisions that limit the exercise of legal capacity engage the application of the rights that protect those interests.
  • Whether this limitation is a violation of the person's rights is dependent on justification considerations.
  • Once a human right is engaged, public authorities must respect the rights and freedoms it affords a person unless the contrary is justifiable or legally demanded.
  • The boundaries protected by a human right can only be properly respected if the meaning and content of the right is understood.
  • An assessment that a person does not have the capacity to give informed consent under s 68(1)-(2) takes away their fundamental right to refuse treatment. As such, the test must be applied and interpreted in a manner compatible with the rights in the Charter.

In commenting on the relevance of the Charter to the issues of the case, the court observed:

  • The central issues of the case are whether the plaintiffs have capacity to give information consent to ECT, and if they do not, to ensure that treatment is only given when it is clinically warranted and the least restrictive option.
  • These issue engage the right of equality before the law, the right to be free of non-consensual medical treatment and the right to privacy.
  • Parliament intended the MHA to be interpreted compatibly with human rights.

In commenting on the meaning and content of each of the rights engaged, the court observed:

  • Equality before the law protects the inherent and universal dignity of human persons. It encompasses the rights to equal protection of the law without discrimination, and equal and effective protection against discrimination. A determination that a patient cannot refuse ECT because they do not have capacity is only compatible with these rights if justifiable.
  • Freedom of non-consensual medical treatment protects a person's dignity and autonomy, in that they have the right to refuse unwanted medical treatment. Whether such treatment is warranted is not relevant to this stage.
  • Privacy protects people from unjustified interference with their person, and social individuality and identity. It has two dimension relevant to people with mental disability – the right to self-determination and the right to personal inviolability. Each serves as the default position, but these rights can be limited when justified.

In commenting on VCAT's obligations as a public authority under the Charter, the court observed:

  • As a public authority under s 38(1) of the Charter, VCAT is responsible for ensuring the human rights of people with mental illness.
  • VCAT performs this role by acting, and interpreting provisions of the MHA, in a way compatible with the human rights of those people, and by making decisions that give proper consideration to their rights.

Ground 2 - Capacity to give consent

In addition to the engagement of various human rights, the court also observed that a number of common law principles are relevant to assessing capacity. These can be summarised as follows:

  • There is a rebuttable presumption that people with mental illness have the capacity to give informed consent (s 70(2) MHA). Capacity to give informed consent is issue-specific (s 68(2)(a) MHA, can fluctuate (s 68(2)(b) MHA) and may be enhanced with support.
  • The test of capacity in s 68(1) focuses on whether the person has the ability to remember and use or weigh relevant information and communicate a decision, not whether the person has actually done so.
  • The test must not be applied to produce social conformity at the expense of personal autonomy.
  • A person with mental illness will not lack capacity simply because the decision they make might be considered unwise.
  • A capacity assessment must be evidence-based and criteria focussed. It must not be based on a so-called objectively reasonable outcome.
  • The threshold for capacity requires only that the person is able to understand, remember, use or weigh the relevant information and communicate their decision.
  • The threshold is not that the person understands the information well enough to make a rational or well-considered decision, or that they are capable of, or have, made such a decision.
  • Depending on the facts of the case, a person with mental illness may lack insight into their diagnosis and still have capacity to give informed consent.
  • Lack of capacity must be established according to the test in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires that the tribunal consider the seriousness of the matter, the gravity of the consequences flowing from a finding, and be reasonably satisfied that the matters in issue have been proven.
  • The purpose of the MHA is to ensure the mentally ill receive treatment in manner that is consistent with their human rights.

In turning to PBU's contention that VCAT erred in law by finding that, to have capacity he needed to accept or believe both his diagnosis and the need for treatment, the court held:

For anybody, mentally disabled or not, non-belief [or] non-acceptance of a diagnosis and lack of insight into the need for treatment would not be sufficient basis for rebutting the presumption of capacity at common law, and it is not under [the provisions of the MHA].

Separately, NJE contended that VCAT erred in law when it found that she did not have capacity to give informed consent because '[to] use and weigh [information] requires a person to carefully consider the advantages and disadvantages of a situation or proposal before making a decision'. The court held:

Respect for the right to self-determination, to be free of non-consensual medical treatment and to personal inviolability, and for the dignity of the person, underpin both the common law test of capacity and the criteria in s 68(1)(a)–(d). It is for this reason that a functional approach has been adopted to testing capacity, one that leaves a person with the freedom to choose whether to make a rational and balanced decision if the person chooses to do so. The criteria do not instantiate a best-interests or reasonable-outcome test and the capacity assessor must be careful not to allow the mandated functional assessment to degenerate into one (see above). In particular, the criterion in para (c) is whether the person has the ability to ‘use or weigh’ relevant information, not whether the person has actually done so, to a careful-consideration standard or at all. The test in para (c), so understood, is not the test that VCAT actually applied.

The court also commented that capacity should be determined based on cognitive function, not decisions and behaviour. NJE's attempts to practice psychic healing at night were analogised to prayer and said not to evidence, in of itself, that she did not have capacity. Based on the above reasoning, this ground of appeal was upheld for both PBU and NJE.

Ground 3 - No less restrictive treatment

With respect to the contention that the criteria in s 5 of the MHA are relevant to determining whether a person has capacity, the court found:

the criteria in s 5 operate as a gateway which must be opened before a person having mental illness may be subjected to compulsory treatment under treatment orders…But the purposes of the criteria do not control the treatment that may be administered to a patient after entry to and before exist from the treatment system.

With respect to the contention that ECT was the least restrictive way of treating the plaintiffs, the court observed that the focus of s 96(1)(a)(ii) is whether ECT is the least restrictive treatment, not whether it is in the patient's best interests. However, as s 5 of the MHA is not relevant, ECT can be administered even where immediate treatment is not needed to prevent serious deterioration of mental or physical health or serious harm to the patient or another person. On the basis of this finding, the court held, as a matter of fact, that ECT was the least restrictive treatment available to the plaintiffs.

The court noted that the plaintiffs had proposed maintain the status quo in respect of their treatment, as an alternative to ECT. In this respect it held:

The doctor has a positive duty to take reasonable care of the patient and this applies whether the patient has the capacity to consent to or refuse treatment or not. This is a duty to take reasonable care to provide treatment that is in the patient’s best interests, not merely to provide treatment for the purpose of preventing or managing an immediate deterioration in health or a risk of harm… The issue arising under s 96(1)(a)(ii) is whether, other than ECT, there is any less restrictive way for the patient to be treated for mental illness for the purpose of meeting the need of the patient for that treatment (broadly understood), taking into account the views and preferences of the patient and the other matters in s 93(2) (see above).

Per the above reasoning, this ground was rejected.