![handle is hein.journals/psylaw26 and id is 1 raw text is: Psychiatry, Psychology and Law, 2019
Vol. 26, No. 1, 1-20, https://doi.org/10.1080/13218719.2019.1604111
Routledge
STaylor&SFrncisGroup
Electroconvulsive therapy, law and human rights
PBU & NJE v Mental Health Tribunal [2018 VSC 564, Bell J
Ian Freckelton QC @
Barrister, Crockett Chambers, Melbourne, Australia; Judge, Supreme Court of Nauru; Professorial
Fellow in Law and Psychiatry, University of Melbourne, Melbourne, Australia; Adjunct Professor
of Forensic Medicine, Monash University, Melbourne, Australia
In a number of jurisdictions, a senior clinician or a tribunal is enabled to order ECT when a
person does not have the capacity to give informed consent to the treatment and in the
circumstances there is no less restrictive way for the patient to be treated. In Victoria,
Australia, there have been a number of challenges to orders permitting ECT orders made by
the Mental Health Tribunal. In a landmark decision by Bell J of the Victorian Supreme
Court, PBU & NJE v Mental Health Tribunal [2018] VSC 564, on appeal from the
Victorian Civil and Administrative Tribunal ('VCAT'), in turn on appeal from the Mental
Health Tribunal, the human rights ramifications of the evaluation of whether a person has
capacity to consent were scrutinised at length. Deficiencies in the reasoning by VCAT,
including resort to impermissible extra-legislative considerations, such as insight, best
interests and the giving of careful consideration, were highlighted by Bell J. This
commentary reviews the reasoning of Bell J and discusses the ongoing consequences of his
decision for both clinician reports and tribunal reasoning so that decision-making about
ECT complies with legislative requirements, is not discriminatory against those with mental
illnesses and is more sophisticated in its analysis of the adverse impact that mental illness
symptomatology has at the relevant time on capacity to give informed consent to ECT.
Key words: best interests; electroconvulsive therapy; human rights; insight; paternalism;
rationality.
Introduction
Electroconvulsive therapy (ECT) as a treat-
ment for mental illness has a troubled and con-
troversial history.1 It has been the subject of
distressing exposes and multiple expostula-
tions of concern about its potential for misuse
and its side-effects. Because it employs electric
currents to reduce the symptomatology of
severe depression and psychotic symptoms,
and because it continues to be portrayed in
emotive ways which in fact have been super-
seded by the passage of decades, (such as in
the 1975 film One Flew Over the Cuckoo's
Nest), ECT continues to generate fear. In turn,
the bad media coverage it has attracted3 and
consequent resistance from patients have been
hypothesised as reducing its deployment below
levels that are therapeutically advisable.4
There have been claims that in some coun-
tries ECT has been used as a punishment, and
it was portrayed in this way in the film The
Changeling (2008).
This is unfortunate because multiple stud-
ies have found a gap between empirically
Correspondence: Ian Freckelton. Email: J.Freckelton@vicbar.com.au
C 2019 The Australian and New Zealand Association of Psychiatry, Psychology and Law](ViewImageLocal?handle=hein.journals/psylaw26&div=1&collection=&method=preview&ext=.png&size=3)
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