It is fair to say that electroconvulsive therapy or “ECT” has a poor public reputation. Many visualise ECT as an archaic procedure associated with terrifying images of patients strapped down to a bed writhing in pain. However, ECT has been described as “safe, painless and very effective in treating depression” by the Royal Australian and New Zealand College of Psychiatry (RANZCP). It is also not uncommon, with approximately 7500 Australians and 300 New Zealanders undergoing ECT each year.[1]

ECT involves a small electrical current being passed through the brain which induces a convulsion or fit, with a normal course involving 6 to 12 treatments over several weeks. Psychiatrists remain uncertain about how or why ECT works.[2]

In Australia, ECT has been widely used since the latter part of the 1940s. In the early days of ECT, broken bones were not uncommon as the result of violent convulsions and patients thrashing about. ECT fell into disrepute in the 1970s but has re-emerged over recent decades with the development of safer and more refined treatment. The risks associated with ECT have been greatly reduced with refined delivery methods, use of muscle relaxants and general anaesthetic.

ECT is most commonly used to treat depression in patients who are considered to pose a suicide risk, though it is also used to treat a wide range of psychiatric disorders such as mania and schizophrenia. RANZCP reports that ECT cures depression in 60-70% of cases.

When can ECT be performed?

Administration of ECT is governed by the relevant Mental Health Act in each Australian state.[3] A person can be administered ECT on a voluntary or involuntary basis. It can also be performed in an emergency situation for certain patients to save their life or to prevent their irreparable harm.[4]

Involuntary ECT

Involuntary treatment requires the approval of the Mental Health Tribunal (or its equivalent in each state). The tribunal must be satisfied that the patient lacks capacity to provide informed consent to ECT, or is a minor. In Queensland during the 2014/2015 year, of a total 1,543 ECT patients, 491 were involuntary patients and 582 of the total number were treated on an emergency basis.[5]

In most states, mental health patients may be entitled to a lawyer at the tribunal hearing. In reality, many patients appear unrepresented. The majority of applications for involuntary ECT are approved and only a small percentage of patients are represented.[6]

Voluntary ECT

Treatment will be voluntary where the patient has provided “informed consent”. The requirements of “informed consent” differ in each State and Territory.[7] In Queensland, informed consent must be given in writing, voluntarily, by a person with capacity to understand and to communicate the decision relating to the treatment. A treating doctor must provide a full explanation about:

  • the purpose, method likely duration and expected benefit of the treatment.
  • the possible pain, discomfort, risks and side affects associated with treatment.
  • alternative methods of treatment available and the consequences of not receiving treatment.

Performance of ECT on Minors

The World Health Organization recommended that the use of ECT on minors be prohibited. Most Australian States and Territories allow the performance of ECT on minors with the consent of the relevant mental health tribunal.[8] However, in WA the administration of ECT on a child under 14 is prohibited. In Victoria, a minor can consent to undergoing ECT.[9]

Recent amendments to the law governing the administration of ECT in Queensland under the Mental Health Act 2016 (Qld) (scheduled to commence in March 2017) will preserve the ability to administer ECT to minors, involuntary patients and in an emergency situation. The ability to perform ECT on minors was preserved on the basis that “to deny someone access to an effective treatment such as ECT solely on the basis of their age is discriminatory and a breach of their human rights”.[10]

Risks of Treatment

Since the early days of ECT, the associated risks have been greatly reduced, with refined methods of treatment, the use of muscle relaxants and general anaesthetic.

Short-term memory loss is the main side effect of ECT. Some patients also report experiencing a state of confusion and persistent headaches. More rarely, patients will suffer loss of long-term memories and/or permanent memory loss. Other non-cognitive risks include cardiovascular risks, premature consciousness during treatment and complications associated with anaesthetic.

However, some patients have reported severe memory loss as the result of ECT.

Liability Risks

It is an offence to perform ECT outside the requirements of the relevant legislation.

Generally, if a patient has provided their “informed consent” to undergoing ECT, a medical practitioner will not be liable if a risk of which the patient was made aware materialises. However, a practitioner may be exposed to liability for the negligent administration of ECT or for failure to provide sufficient information to a patient for the purpose of obtaining their informed consent.

It is crucial that medical practitioners and facilities that provide ECT are aware, and have complied with, the requirements of obtaining informed consent of voluntary ECT patients.

There have been few successful cases in relation to the negligent performance of ECT. In the United States, the first patient to be awarded damages (US$635,177) with respect to permanent and severe memory loss was in 2005 for treatment that she received in the 1980s. In Australia in the late 1980s and early 2000’s, proceedings were commenced against several doctors at Chelmsford on behalf of hundreds of patients for treatment provided during the 1960s and 1970s which was called “deep sleep therapy” (“DST”) but involved the administration of ECT.[11] Following a Royal Commission into DST at Chelmsford, the High Court ultimately granted a permanent stay of disciplinary proceedings on the basis that they were an abuse of process.[12]

With respect to involuntary ECT patients, the Victorian state government is currently investigating the treatment of Garth Daniels, an involuntary psychiatric patient who has now received over 84 shocks of ECT without consent. Mr Daniels has unsuccessfully sought several injunctions in relation to ECT treatment administered in various hospitals and a review of the involuntary detention order of the Mental Health Review Board.[13] Neither he, nor his father (his medical power of attorney) consented to the ECT. They argue that Mr Daniels’ memory has been permanently impaired and also contend that he had and has capacity to refuse treatment.