Supreme Court hears arguments for Bendigo woman challenging forced electro-shock therapy

Victoria Legal Aid director civil justice access and equity Dan Nicholson speaks to the media in front of the Supreme Court as the court considers the forced electro-convulsive therapy case of a Bendigo woman.
Victoria Legal Aid director civil justice access and equity Dan Nicholson speaks to the media in front of the Supreme Court as the court considers the forced electro-convulsive therapy case of a Bendigo woman.

A BENDIGO woman challenging an order for forced electro-shock therapy has been robbed of the “dignity of choice”, her lawyer has told a Supreme Court hearing.

The woman, known as NJE, is one of two Victorians challenging their forced electroconvulsive treatment orders in a test case for the Mental Health Act, updated in 2014.

She objected to the order while a patient of Bendigo Health earlier this year, but the order was upheld by the Mental Health Tribunal and the Victorian Civil and Administrative Tribunal.

The Supreme Court is now considering whether ECT can be enforced upon a person who fully understands the procedure, but opposes it. VCAT found the fact NJE did not believe she had treatment-resistant schizophrenia meant she was unable to make her own informed decision.

The matter is being heard this week.

The court will determine whether there is no less restrictive means available for the person to receive treatment, if there is a serious risk of deterioration of the person’s mental health without the treatment, and if there are risks to others if the treatment does not go ahead.

The court heard opening arguments from Emrys Nekvapil earlier this week, representing NJE and the other person PBU, on behalf of Victoria Legal Aid.

He told the court the Mental Health Act was changed in 2014 to give more rights to people with mental illness.

“This act, in our submission, was intended to alter the balance, to give greater autonomy to persons engaging in this system,” Mr Nekvapil said.

“The approach here, although it’s not back to those days, it still doesn’t look sufficiently to the world as experienced by the patient, and the dignity of choice, which the act is supposed to protect and promote.”

VCAT found NJE could understand and remember information about ECT, but could not “use and weigh” that information, meaning she could give informed consent.

Mr Nekvapil said this was an “error” on the part of the tribunal’s judgement, and said NJE was using all the information she found to be relevant.

“It describes her reasoning process, but it then says her decision was made without prior consideration, even though the tribunal has just referred to her prior consideration and to the reasons she had for refusing ECT,” he said.

“In one way, it at least engages with the test more but it does it in a way that doesn’t really, with respect, try and see this person as an autonomous individual who might have their own reasons for not wanting ECT.

“Whether the tribunal thinks that those are good reasons or reasonable reasons, it really doesn’t engage with the fact that she gone through her own process of consideration.”

ECT involves placing a person under general anesthetic and muscle relaxant, before running electric currents through the brain causing seizures. It is intended to provide treatment for severe depression and other mental illnesses.

NJE was ordered to receive up to 12 rounds of the treatment at Bendigo Health. Doctors claimed they had tried to engage with NJE about the treatment.

PBU has already undergone ECT in a Melbourne hospital, but has objected to any more courses.

Their matters are being heard simultaneously in the Supreme Court.

A UK court case involving a Jehovah’s Witness who refused a blood transfusion was used as an example of how the rights and decisions of a patient are paramount.

In that case, the presiding justices found every adult has the right and capacity to refuse medical treatment.

Mr Nekvapil said in order to consent to a procedure, the person only had to understand its nature.

He said patients in Victoria also confronted a “power imbalance” when they appeared before the Mental Health Tribunal to argue their case.

“If a person feels that they’re not being heard as part of their consultation process, then their response to the frustration of that may manifest in something which is then taken to indicate incapacity,” Mr Nekvapil said.

Both NJE and PBU will not receive the treatment until the Supreme Court hands down its judgement later this year.

Supreme Court Justice Kevin Bell said it was a complex matter.

“I think the tribunal’s really saying, look, this is a terribly difficult problem,” he told the court.

“We’ve got two people who are squandering under the existent treatment regime.

“Their life’s not getting any better. Medically, they’re not improving. Their quality of life is poor. It could be so much better on ECT.”

Justice Bell said there was also a risk that ECT would cause a deterioration to their health.

“If we have patients who do not wish to have ECT because they’re terrified of what it might do to them, and they want to remain under the current treatment regime… yet one can foresee on medical evidence gradual deterioration to a position of even more grave want of health… what’s to happen?” he asked.

Justice Bell reserved his judgement to a date to be fixed.