A WOMAN who appealed a forced shock therapy order against her at Bendigo Health will no longer have to go through with the treatment after the Supreme Court upheld her appeal.
Justice Kevin Bell delivered his judgement in the case of NJE – a pseudonym for the woman – on Thursday morning, ordering that the decisions of the Mental Health Tribunal and Victorian Civil and Administrative Tribunal be “quashed”.
NJE, who has schizophrenia, was ordered to undergo electroconvulsive treatment, or ECT, at Bendigo Health in 2017 after the health service made three applications. Because NJE objected, they were taken to the Mental Health Tribunal which approved 12 rounds of ECT on the third occasion.
Justice Bell found that “personal autonomy and the dignity of the individual are at stake” in the matter and NJE had the ability to make her own judgement.
“A person does not lack the capacity to give informed consent simply by making a decision that others consider to be unwise according to their individual values and situation,” he said.
“To impose upon persons having mental illness a higher threshold of capacity, and to afford them less respect for personal autonomy and individual dignity, than people not having that illness, would be discriminatory.”
The original order was made in April, 2017, which NJE unsuccessfully appealed in VCAT.
The appeal was then taken to the Supreme Court, with hearings in August, 2017. Her matter was combined with a man, referred to as PBU, who had undergone six courses of ECT at a Melbourne hospital but also objected.
Acting for NJE and PBU during the hearings last year, Emrys Nekvapil said there had been an admission that NJE had gone through prior consideration and a reasoning process.
He said her frustration at “not being heard” as part of the consultation process could manifest itself into something that indicates “incapacity”.
Clare Harris, acting for the Mental Health Tribunal, said NJE had an “incomplete understanding” of the ECT process and she could not “use and weigh” the information provided to her.
She said NJE’s assertion that ECT could “interfere” with her psychic abilities was evidence that she could not provide informed consent.
More on shock therapy in Bendigo: ‘Memory loss took over’: Woman speaks of ECT experience
Justice Bell found that the individual’s wishes needed to be taken into account in determining whether there is “no other less restrictive way for the person to be treated”.
“The other condition is that, when a person having mental illness lacks the capacity to give informed consent, compulsory medical treatment, including ECT, cannot be imposed unless there is no other less restrictive way for the person to be treated,” he found.
“But persons who are found to lack that capacity do not lose their right to contribute to medical decisions about what should be done to them.
“In determining whether there is any less restrictive way for the person to be treated, it is necessary to take the person’s views and preferences into account if it reasonable to do so.”
Both NJE and PBU are now being treated in the community and “compulsory ECT is no longer being sought”, the court heard.
‘One of the most traumatic days of my life’
PBU, who underwent six shock therapy treatments at a Melbourne hospital against his consent –before objecting to further treatments – described the moment he was taken to the room against his will.
“It was one of the most traumatic days of my life, when I was taken into the ECT room and held down on the bed. I didn’t know I was going to have ECT,” he said.
“The most terrifying aspect of having ECT is that I didn’t know what state I would be in after.”
PBU did not have legal representation at the Mental Health Tribunal hearing, when ECT was approved.
He said this was an unacceptable situation for vulnerable people to be placed in.
“I didn’t know I could have a lawyer then and I think it would have made all the difference. I didn’t think I had a chance to put my case forward in an equal way,” PBU said.
Laws were changed in 2014 requiring the Mental Health Tribunal to rule on ECT matters, but only 10 per cent of patients have legal representation.
In 80 per cent of cases, the ECT decision is upheld.
In New South Wales, 77 per cent of people have a lawyer present.
Victoria Legal Aid acting program manager mental health and disability advocacy Hamish McLachlan said the cases centred on “patients’ rights”, and it was a “landmark decision”.
“Giving people support in these hearings makes a big difference. PBU and NJE overturned ECT applications when they had lawyers – but not when they were unrepresented,” he said.
“We are also concerned that mental health services are making too many requests for urgent hearings when the legal test required for urgency has not been met. Almost 60 per cent of applications for compulsory ECT are made urgently in Victoria, leaving very little time for patients to get legal information and help.”
Mr McLachlan said the case was not about whether ECT was “good or bad”, as Legal Aid has clients who speak of the benefits of the treatment.
Right to be free of ‘non-consensual’ treatment paramount
Justice Kevin Bell found changes to the Mental Health Act in 2014 were a “paradigm shift” from “best interest paternalism” to a recognition that people with mental illness had equal rights with others in the community.
He was required to weigh up the Act with the Convention on the Rights of Persons with Disabilities, finding there was a right to self-determination.
“People with mental illness are highly vulnerable to interference with the exercise of their human rights, especially their right to self-determination, to be free of non- consensual medical treatment and to personal inviolability,” Justice Bell found.
“The purpose of the statutory test for determining whether a person with mental illness has the capacity to give informed consent is not to produce social conformity at the expense of personal autonomy for those people.”
Victorians could still be subject to involuntary shock therapy if they are found to “lack the capacity to give that consent”.
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