1. On 11 July 2014, VCAT received an application from EWL under s 201 of the Mental Health Act 2014 (the Act). EWL sought review of the Mental Health Tribunal's Order for Electroconvulsive Treatment (ECT) which approved up to 12 ECT treatments within the following 21 weeks (by 1 December 2014).
2. VCAT made procedural orders joining Eastern Health - Koonung Clinic (Koonung Clinic) as a party and excusing the Mental Health Tribunal (the MHT) from attending the hearing. On 7 August 2014, I heard the application. EWL, Dr A and Dr B of the Clinic gave evidence. Mr H McLachlan, Solicitor for EWL and Ms D. Foy of counsel for the Clinic made submissions. I reserved my decision.
3. EWL is the subject of a community treatment order (CTO) in force until 3 December 2014. The CTO was made under the recently repealed Mental Health Act 1986 (the 1986 Act) and is now in force under the 2014 Act.
4. The issue before VCAT was whether or not to grant an application to perform a course of ECT on EWL. Under s 51 of the _Victorian Civil and Tribunal Act 199_8, VCAT may affirm or vary the MHT's decision or set aside its decision and either make a new decision or remit the matter for re-consideration by the MHT in accordance with any directions or recommendations of VCAT.
5. I granted the application by varying the MHT's decision.

1. Concerning persons over 18 years old, under s 92(1) of the Act, ECT may only be performed if the patient has given informed consent in writing or the MHT (or on review VCAT) grants an application made under s 93.
2. Under s 93 the authorised psychiatrist may make application to the MHT to perform a course of ECT treatment on a patient who is not a young person if, in view of that psychiatrist, the patient does not have the capacity to give informed consent to the performance of a course of ECT and the psychiatrist is satisfied in the circumstances, there is no less restrictive way for the patient to be treated.
3. Section 96 says the MHT (and so VCAT on review) must grant the application (specifying up to 12 ECT treatments over no longer than six months) if satisfied:
   1. The patient does not have the capacity to give informed consent; and
   2. There is no less restrictive way for the patient to be treated.
4. Otherwise, the application must be refused.
5. Consideration of these issues must be conducted by the MHT or VCAT in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Vic).

1. Section 68 of the Act defines the circumstances when, for the purposes of making decisions, including about whether or not to agree to ECT, a person has the capacity to give informed consent. The person must:

1. Understand the information he or she is given that is relevant to the decision; and 2. Be able to remember the information that is relevant to the decision; and

1. Be able to use or weigh information that is relevant to the decision; and

1. Be able to communicate the decision he or she makes by speech, gestures or any other means.
2. Section 68(2) sets out principles intended to provide guidance to any person who is required to determine whether or not a person has the capacity to give informed consent under this Act:

1. A person's capacity to give informed consent is specific to the decision that the person is to make; 2. A person's capacity to give informed consent may change over time;

1. It should not be assumed that a person does not have the capacity to give informed consent based only on his or her age, appearance, condition or an aspect of his or her behaviour;

1. A determination that a person does not have capacity to give informed consent should not be made only because the person makes a decision that could be considered to be unwise; 2. When assessing a person's capacity to give informed consent, reasonable steps should be taken to conduct the assessment at a time at, and in an environment in, which the person's capacity to give informed consent can be assessed most accurately.
2. Section 70 creates a presumption that a person has capacity to give informed consent. It says before treatment for mental illness (including ECT - see s 6 of the Act) is administered to a person in accordance with the Act, the informed consent of the person must be sought. The person seeking the informed consent of another person must presume that the other person has the capacity to give informed consent. However, s 70(3) also says, despite the assumption, a person does not have to seek the informed consent of another person to treatment if the person forms the opinion that the other person does not have the capacity to give informed consent at the time that the informed consent would otherwise be sought.
3. Section 70 is a new provision, not seen under the 1986 Act. Therefore, Parliament appears to envisage circumstances where a person is a compulsory patient under the 2014 Act and retains capacity to make decisions about particular treatment issues.

1. In deciding whether there is a less restrictive way for a patient to be treated (compared to ECT) the decision-maker must have regard to the factors set out in s 93(2) of the Act, being:

1. The views and preferences of the patient in relation to electroconvulsive treatment and any beneficial alternative treatments that are reasonably available and the reasons for those views or preferences, including any recovery outcomes the patient would like to achieve; 2. The views and preferences of the patient expressed in his or her advance statement;

1. The views of a guardian of the patient; 2. The views of a carer of the patient, if the authorised psychiatrist is satisfied that the decision to perform a course of electroconvulsive treatment will directly affect the carer and the care relationship; and 3. The likely consequences for the patient if the electroconvulsive treatment is not performed; and 4. Any second psychiatric opinion that has been obtained by the patient and given to the psychiatrist.

1. The above provisions need to be addressed in the legislative context that a person must be a "compulsory patient", and relevant to this case is subject to a community treatment order, before an application to perform a course of ECT may be made.
2. It follows (see s 5 of the Act) that it is deemed where a current CTO was made under the Mental Health Act 1986):

1. The person has a mental illness (defined in s 4); 2. Because of that illness, the person needs immediate treatment to prevent either serious deterioration in his mental or physical health and/or serious harm to him or to another person/s;

1. Immediate treatment will be provided to the person if the person is subject to a Treatment Order; and

1. There is no less restrictive means reasonably available to enable the person to receive the immediate treatment.
2. All this must be considered subject to:

1. The purpose of the Act, as stated at s 1, to provide a legislative scheme for the assessment of persons who appear to have mental illness and for the treatment of persons with mental illness; 2. The Act's objectives which address assessment and treatment in the least restrictive way possible, the protection of human rights and dignity, promoting participation in decision making, providing oversight and safeguards, promoting recovery and recognising the role of carers (see s 10); and

1. The Mental Health Principles which address least restrictive treatment, best possible outcomes, involvement in decision making, according respect, acceptance of a degree of risk in decision making by persons receiving treatment, promoting rights, dignity and autonomy, recognising other needs and recognising the role of carers (see s11).
2. Section 11(3) says a person must have regard to the mental health principles in performing any duty or function or exercising any power under or in accordance with this Act. This applies to decision making in this proceeding.

Regulation of ECT compared to the Mental Health Act 1996

1. While the Mental Health Act 2014 brings significant reform, including regarding ECT, it should be noted that the provision of ECT without patients' informed consent was regulated under the Mental Health Act 1986.
2. Section 72 of the 1986 Act permitted the authorised psychiatrist to authorise ECT to be given to a patient incapable of giving informed consent on being satisfied ECT had clinical merit and was appropriate, having had regard to benefits, discomforts risks and any beneficial alternative treatments. The Authorised psychiatrist also had to be satisfied that unless the ECT was performed, the patient was likely to suffer a significant deterioration in his or her physical or mental condition and all reasonable efforts have been made to notify the patient's guardian or primary carer of the proposed ECT.
3. These criteria are to a large degree analogies with the criteria provided in the 2014 Act. Significantly, the authorised psychiatrist must now seek independent approval of a tribunal.

1. Neither party in this proceeding bears the onus of proving its case. Rather, VCAT is to stand in the shoes of the decision maker and make what it considers the correct and preferable decision.
2. The parties submitted, and I accepted, in cases of this nature it was appropriate to apply the standard set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The standard of proof is on the balance of probabilities, bearing in mind the seriousness of the allegation. At p 361-2, Dixon J said:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. While submissions on behalf of EWL referred to the decisions of NOM v DPP [2012] VSCA 198 and Nigro v Secretary to the Department of Justice [2014] VSCA 198 where Briginshaw was cited, in my view they do not assist in this proceeding. They concerned decisions to be made under the Serious Sex (Supervision Detention) Act 2009 and the Crimes (Mental Impairment Unfitness to Be Tried) Act 1996. Those Acts have markedly different natures compared to the Mental Health Act 2014.
2. I note the very recent decision of the Federal Court of Australia in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [115 ff]. Flick and Perry JJ rejected the submission that the Administrative Appeals Tribunal (Cwlth) was bound to apply Briginshaw. However, their Honours did not indicate it was an error of law to do so.

1. I summarise the evidence given orally before me in the order it was given.

1. Dr A qualified as a psychiatrist in 1998 and has worked for Eastern Health since 2006. He treated EWL at times when Dr B was not available from late 2013 until recent times. This included making the ECT application to and giving evidence before the MHT.
2. While I considered an "Electroconvulsive Treatment Report-Adult Patients" form completed by Dr A in July 2014, as part of the process of applying to the MHT for approval to perform ECT, Dr A gave comprehensive oral evidence, which I here focus on. As he said, his July report was a little dated.
3. In his opinion, EWL suffers from chronic treatment resistant schizophrenia. His primary symptoms include hallucinations (usually auditory), delusional thinking and behaviour disturbance. When unwell, EWL suffered profound distress. He can be absolutely consumed by belief that something terrible is about to happen to him. Depressive and manic elevated disinhibited symptoms are also discernible. He experiences Parkinsonian symptoms. He can experience tremors so bad that he cannot feed himself. He suffers negative symptoms such as social withdrawal, not being able to concentrate on something and being unable to enjoy activities. His symptoms wax and wane with him being rarely, if ever, symptom-free.
4. Having received antipsychotic medication for almost 30 years, EWL also suffers from Tardive Dystonia involving muscle spasm resulting in posture abnormalities. He experiences spasm in the upper torso, neck and shoulder and suffers from awkward permanent posture with his neck twisted and head bent. The spasms can be painful, make it difficult for him to talk and walk and makes him susceptible to falls. At times he needs a walking frame.
5. EWL also suffers from obsessive compulsive disorder which at times prevents him caring from himself, washing himself, getting dressed, going to the community dining hall where he lives and/or eating available food.
6. Dr A said this combination of symptoms makes decisions as to treatment a terrible juggling of difficult options with the risk of ongoing permanent side-effects.
7. However, in the last months EWL's health had shown remarkable improvement, coinciding with the last course of ECT as a hospital inpatient in late 2013 and maintenance ECT since then. When an attempt was made to lengthen the interval to 6 weeks, EWL relapsed. He improved after administration of ECT twice; a week apart from each other.
8. According to Dr A, EWL's psychotic symptoms have attenuated to a large degree. His mood and behaviour disturbances are almost eliminated. His obsessive compulsive disorders decreased. Side-effects of antipsychotic medication decreased with the level of medication being decreased in the context of the ECT being provided.
9. In Dr A's opinion, EWL does not have the capacity to make an informed decision about ECT treatment. Essentially, this is due to EWL not accepting he suffers mental illness and not being able to realistically weigh the risks and benefits of various treatments.
10. Dr A spoke of discussing EWL's treatment with him a number of times this year. EWL clearly said he does not believe he suffers mental illness and if he had a choice, he would refuse all treatment. Dr A attempted to converse in broad brush terms about the advantages and disadvantages of different treatment modalities such as taking pills, having injections, ECT and hospitalisation. Dr A recommended ECT to EWL. However, EWL does not want to receive it. He says it causes mental illness and makes it hard for him to talk and think. EWL also attributes his symptoms to a neck injury. He also speaks of ECT causing him to experience visual disturbances. EWL does not accept Dr A's explanations as to the benefits of ECT compared to antipsychotic medication. While Dr A agreed EWL says he will take oral medication, such agreement has previously been accepted but EWL failed to take the medication.

1. Dr A agreed EWL was preoccupied by and in fear of ECT. His treaters attempt to address this by reassuring him about its benefits and the real risks. However, only time will tell whether this assists. Concerning his reports of suffering seeing black spots after ECT, the symptoms are not a known outcome of the treatment.
2. Concerning the risks of ECT, Dr A agreed there was some risk of memory loss. However, this should be balanced against the improvement in his mental health and the possibility of him remaining relatively well. Maintenance ECT presented lower risks of memory problems compared with the scenario that his mental health deteriorated requiring intensive ECT is an inpatient.
3. Dr A noted that when EWL has been most unwell he required involuntary hospitalisation. It was necessary to treat him in a lock-up unit at the hospital in a very restrictive manner.
4. In Dr A's opinion, if ECT was not approved, there was a very real likelihood that EWL would suffer a serious relapse. This happened in mid-2013 when he was discharged from hospital, with no maintenance ECT. There would be the ever present risk that each relapse makes effective treatment to recover to the previous level of health difficult, if not impossible. This could prove devastating for him.
5. The only option, if ECT were not available, would be to attempt to treat EWL with untested combinations of antipsychotic drugs. There would be no evidence base on which to make decisions. It would be a matter of administering medications for periods and seeing what happened. This would very likely require hospitalisation for an extended time. Dr A said those treating EWL would be flying blind. If antipsychotic medications were increased there is every possibility his postural difficulties or Parkinsonian side-effects would worsen. There is no known way to treat those symptoms while medications remain increased.
6. Dr A was asked whether EWL had been provided with a booklet concerning the rights of patients receiving ECT and related DVD. Dr A assumed that would have been done while EWL was an impatient. It is not normally done in the outpatient setting.
7. He was shown the Chief Psychiatrist's Annual Report 2011-12. At page 34 it discussed the provision of ECT including saying it is most commonly prescribed for severe depression but may also be used in other types of serious mental illness such as mania, schizophrenia, catatonia and other neuropsychiatric conditions. He agreed this was the case.
8. The Report commented:

ECT is a procedure performed under general anaesthetic in which modified seizures are induced by the selective passage of electrical current through the brain. Representations of ECT in popular culture have tended to generate negative public perceptions of the treatment despite significant advances in the technology, knowledge of evidence over recent years. (p. 34)

1. The Chief Psychiatrist reported that in 2011/12 public and private mental health services provided a total of 18,803 ECT treatments to 1,688 patients. Of those, 3,565 treatments were said to have been administered for the treatment of schizophrenia, schizotypal and delusional disorders. Sixty two percent of the treatments were provided by public mental health services.
2. Dr A understood Eastern Health provided between 1,000 to 1,500 ECT treatments per annum with an average of six or seven treatments per patient.

1. Dr B qualified as a psychiatrist in 2000. She is employed by Eastern Health and holds positions related to psychiatry at a hospital and university. She holds a PhD in the field. She had treated EWL for approximately seven years and believed they had a good relationship.
2. She spoke of him suffering mental illness since he was 24 years old. Dr B confirmed Dr A's descriptions of the symptoms of EWL's mental illness. She had listened to his evidence. She added that when unwell, EWL may barricade himself in his room, present as agitated, irritable and difficult to manage. This has in the past resulted in him being required to leave supported accommodation.
3. She emphasised that while EWL is scared of ECT, previously he was just as scared of other treatment modalities, such as Clozapine. He was similarly scared of being admitted to hospital. However, the overnight admissions required for the monthly ECT treatments were not as taxing as the distress he experienced on involuntary admission when acutely ill.
4. She outlined his long treatment history, first with old-style antipsychotics (such as Modecate and other injectable medications) followed by Clozapine (the treatment of choice for treatment resistant schizophrenia) for 11 years, taken orally. However, EWL's poor compliance with oral medication resulted in that strategy being abandoned in 2013, in favour of the current treatment regime.
5. The years 2012 and 2013 had seen multiple voluntary admissions for significant periods. The last admission in 2013 had been for three and a half months and involved 14 ECT treatments. After discharge the intervals of maintenance ECT reduced from weekly to four weekly. Following a treatment on 28 March 2014, an attempt to extend the treatment interval resulted in the next treatment being on 9 May 2014. However, EWL then relapsed, requiring treatments on both 20 June and 27 June 2014, followed by an 11 July treatment. The next treatment was scheduled a week after the hearing date. The intention was to return to 4 weekly intervals.
6. These maintenance ECT treatments involve EWL presenting himself for overnight hospital admission, mainly to ensure he does not eat or drink prior to undergoing anaesthetic as part of the ECT treatment, the treatment in the morning then followed by discharge from hospital later that day.

1. She had seen EWL for the first time in months on the Tuesday before the hearing. His health had dramatically improved. His levels of fear were much reduced. While he felt residents where he lived were speaking about him and he could hear them, he was able to go to his room and calm himself down. He was looking after himself and eating well. This was confirmed by the manager of the accommodation. She had never seen him so able to communicate. Dr B had no doubt his improvement was due to monthly ECT.
2. However, in Dr B's opinion, it remained the case that EWL does not accept he suffers a mental illness and does not have the capacity to weigh the risks and benefits of ECT. She said this was in part explained by likely cognitive impairment he has suffered as a result of suffering mental illness for many years.
3. They were able to discuss his concerns about ECT including his view of its effect on his thinking and vision. She commented it was difficult to understand his reported experiences, but staff would attempt to respond to them. She attempted to discuss in-depth the pros and cons of ECT. However, in her view, EWL had limited ability to understand the conversation.
4. Concerning his current supported accommodation it was very important that he has been provided with his own bathroom, rare in such accommodation. Given his obsessive compulsive disorder, he is able to spend a very long time in the bathroom. This causes difficulties with shared facilities.
5. On the issue of alternatives to the current treatment regime, in Dr B's opinion there was no other practical alternative. She was not aware of any new untried medications. She would anticipate a long term acute admission with heavy medication. Such treatment posed serious risks including severe bowel obstruction, permanent movement disorder and the risk of sudden death, for example due to the effect of medications on heart rhythm. In terms of the lack of alternative treatment options she said, "I am a psychiatrist not a magician".

1. EWL's opinion was in part set out in a statutory declaration dated 7 July 2014, written with the assistance of an interpreter. He said he does not suffer from schizophrenia and if given the choice, would not accept any treatment. He believes the ECT makes him sick and complains of problems with his sight after the ECT commenced. He finds ECT "completely scary" and strongly wishes for it to end. He says if faced with the choice between ECT and another treatment he would accept the other treatment. He would prefer inpatient hospital care over many weeks as an alternative to the ECT.
2. He confirmed his views at the hearing before me, with the assistance of an interpreter. He mainly used short English sentences and gave oral evidence for a short time. The interpreter primary helped in putting some of the questions to him. He described his main medical problem to be a neck injury. He said CTOs are for sick people and he did not need one. So long as the doctors forced him to take medication he would take it. In his view, the ECT makes him sick in the head. He said if the ECT was stopped he would feel good and have a happy life. He agreed his treating doctors are good people.

1. As already stated, the application to perform ECT is granted. I now address the decision criteria.

Does EWL have the capacity to give informed consent?

1. In my view, EWL does not have capacity to give informed consent.
2. I accept the evidence on this point from Drs A and B as to EWL's inability to understand he suffers from mental illness and to weigh up the risks and benefits of either accepting or rejecting ECT.
3. I do not accept EWL's evidence demonstrates the capacity to give informed consent. EWL says he does not agree with the diagnosis that he suffers from schizophrenia. He accepts treatment only because he is subject to a CTO. In his view, ECT causes his illness. He reports visual side effects following ECT. He is scared of ECT and wants it to stop. He says in preference to ECT he would accept new medication (not Clozapine which he previously received), even if this required him being hospitalised for up to 12 weeks.
4. In giving evidence before me, EWL showed no sign of understanding the mental illness he suffers or being able to discuss the comparative merits of alternative treatments. His broad declarations that he would stay in hospital for 12 weeks and take medication do not amount to such. As far as I was able to judge, the limited nature of his evidence was not due to being in the foreign environment of a VCAT hearing.
5. Turning to the definition of informed consent at s 68:

1. I am not satisfied EWL understands the information he has been given relevant to him receiving ECT; 2. I accept, with some hesitation, he is able to remember the information that is relevant to the decision;

1. I am not satisfied EWL is able to use or weigh information that is relevant to the decision; and

1. I am satisfied EWL is able to communicate his decision to refuse ECT.
2. Turning to the principles intended to provide guidance to any person who is required to determine whether or not a person has the capacity to give informed consent under this Act:

1. I recognise EWL's capacity to give informed consent is here specific to the decision about ECT; 2. EWL's capacity to give informed consent may change over time;

1. I have not made assumptions based only on EWL's age, appearance, condition or any aspect of his behaviour;

1. I have not determined EWL does not have capacity to give informed consent only because his decision to refuse ECT could be considered to be unwise; and 2. In my view, reasonable steps have been taken to conduct the assessment in context of a VCAT hearing, so that EWL's capacity can be assessed most accurately. Parties had reasonable opportunity to present evidence and make submissions, both before and at the hearing.
2. In reaching the above view, I have considered the submissions put on behalf of EWL on this point. I address those that require separate comment.
3. First, it was submitted VCAT must not grant an application for ECT unless "positively satisfied" that the patient does not have the capacity to give informed consent. This was linked to the requirement that a person seeking informed consent to treatment from a patient be presumed by the person seeking the consent to have capacity to consent (s 70(2)). However, there is no requirement for 'positive satisfaction'. A finding as to capacity may be made within the standard of proof discussed above. Section 70 speaks of the person seeking consent presuming capacity, not this Tribunal or the MHT, neither of which seeks the patient's consent in reaching its decision.
4. To that I add I also reject the submission in a similar vein that the standard of evidence required is particularly stringent because ECT is regarded as an extraordinary form of treatment. I have discussed the relevant standard of proof above. There is no evidence before me that ECT is an extraordinary form of treatment. The Act does not use the term. Rather ECT is a form of treatment (see s 6) which may not be administered, if a person has capacity to consent, without consent and, where a person has no such capacity, may not be administered without approval of a tribunal. It is clear from the Chief Psychiatrist's Annual Report that it is a regularly used treatment modality.
5. Second, it was submitted that saying a person lacks capacity to give informed consent was analogous to an 'allegation' against the person. While this point appears moot as it was stated as a basis for invoking Briginshaw, I reject the submission. Nowhere in the Act does the concept of allegations with respect to mental health appear.
6. Third, the submission was made that given an inter-relationship between ss 68 and 69 of the Act, a finding as to lack of capacity should not be made unless the Tribunal is satisfied the person in question had been provided with sufficient information on which to base a decision. While I doubt the merit of the submission, I express no concluded view. In my view, this is theoretical in this case. I accept both Dr B and Dr A had striven to provide information and discuss the relevant issues with EWL. Having done so, in their opinion, he lacks the capacity to consent.
7. I do comment that it appears there is no necessary link between capacity and information provided. A medical practitioner will often regard a person as having capacity to make decisions concerning his or her healthcare before providing any information about the proposed treatment or situation. The MHT in its reasons for decision concerning EWL took a similar view on an apparently similar submission:

... submitted that section 68 and section 69 of the Act are inherently intertwined because the phrase capacity to give informed consent contains the words informed consent and therefore considerations under section 69 are imported in to section 68. The effect of this, it was submitted, was to oblige the Tribunal in determining whether a patient has the capacity to give informed consent to conduct an enquiry as to the matters outlined at section 69(1)(b) through (d) - that is to interrogate the circumstances.

A careful reading of Part 5 Division 1 of the Act does not support this interpretation. Capacity to give informed consent is a unitary phrase - it is not to be broken down into capacity and informed consent. The criteria by which capacity to give informed consent is to be assessed are set out at section 68, which requires a functional assessment and a clinical determination of the four domains which must be unimpaired if a person is to have the cognitive and physical facility to engage with the information that may or not give rise to a grant of informed consent. Such capacity is a necessary precondition to the grant or refusal of consent which must be free and informed. So much is plain from sections 68 - 71. Indeed, the relationship between sections 68 and 69 is the converse of that submitted ... Rather than section 68 requiring consideration of the criteria in section 69, in fact section 69(1)(a) requires consideration of section 68(1).

1. Fourth, and related to the third point, I do not accept the submission that Dr B and Dr A overly focused on discussing with EWL issues concerning ECT side-effects and failed to appropriately discuss other options. Their evidence is of broad discussion over time. However, it would not be surprising if they limited discussion of other options, given their view that there is no realistic alternative.
2. Fifth, I reject the submission that any underlying lack of understanding by EWL with regards to his mental illness and need for treatment does not displace his ability to make an informed decision between alternative compulsory treatments. Perhaps there are cases where a person denied the existence of mental illness suffered yet could balance the pros and cons of the alternative compulsory treatments. However, I accepted the evidence of Dr B and Dr A that this is not such a case.

Is there a less restrictive way for EWL to be treated?

1. In my view, there is no less restrictive way for EWL to be treated.
2. I accept the medical opinions, in particular Dr B's opinion, based on treating EWL for seven years, that the current treatment regime, including ECT, is maintaining EWL in the best mental health he has experienced for years.
3. The balance in achieving that appears delicate as evidenced by his deterioration when even modest lengthening of the intervals between maintenance ECT treatments was attempted.
4. It was submitted on EWL's behalf that on the evidence there was an alternative treatment, being trials of alternative medications while an inpatient for up to 12 weeks. However the expert evidence was that in fact that the only alternative to the current regime is experimentation with medication, based on guesswork not on evidence, likely involving hospitalisation and significant risk. That alternative posed significant risks to EWL's health, including the likelihood of the resumption of acute phase ECT to bring him back to his current health. He may lose his current, difficult to replace with something equivalent, accommodation.
5. In deciding there is no less restrictive way for EWL to be treated, I have had regard to the factors set out in s 93(2) of the Act:

1. EWL opposes ECT. I accept receiving it scares him. However, I give this only limited weight given his lack of capacity as discussed above and, unfortunately, EWL has been scared of most treatment. Related to that, I place limited weight on his statement he would elect to be hospitalised for up to 12 weeks, rather than receive ECT. As discussed, there is no beneficial alternative treatment that is reasonably available; 2. EWL has not made an advance statement, not nominated a person to put such views as to his treatment and no guardian has been appointed. Concerning the views of others, the only relevant person is his sister, who would perhaps fall within the concept of "carer" in s 93. She did not attend the VCAT hearing. I accept the doctors' evidence that she supported the ECT treatment;

1. The likely consequences if ECT is not performed are grave; and

1. No second psychiatric opinion had been obtained by EWL.
2. In reaching the above view, I have considered the submissions put on behalf of EWL on this point. I address those that require separate comment.
3. First, I again reject the submission that "positive satisfaction" is required before the criterion can be found met.
4. Second, I need not decide whether the Tribunal may only grant an application for ECT where it was satisfied that if the treatment were not immediately performed the patient would experience a serious deterioration in his or her mental or physical health or cause serious harm to him or herself or to another person. The evidence here is clear that if ECT is not provided, EWL will very likely experience serious deterioration in his mental health and quite possibly physical health. The deterioration in his physical health may well result from difficulties he could experience in self care. Dr B speaks of serious potential side effects, including sudden death.
5. Third, substantial effort was put into detailed submissions as to the necessity of cogent evidence to support a finding that there was no less restrictive way for the patient to be treated and here there was a less restrictive way, given EWL had given evidence that he agreed to up to 12 weeks inpatient treatment while alternatives to ECT were trialled. Here, Dr B and Dr A gave cogent evidence based on significant clinical history as to the efficacy of current treatment and the lack of any real alternative. They carefully considered and decided there were not any reasonably available options. Meaningful alternatives to now successful treatment in terms of symptom control cannot include a mixture of medications, administered without reference to evidence as to efficacy, with the expectation EWL's mental health will deteriorate such that impatient care is required with some risk that he will never again recover to his current level of health.
6. Fourth, I rejected the submission that, "the question of whether a way of treating the patient is 'less restrictive' is subjective and must be determined by reference to the patient's views on preferences." This was put in written submissions. While the Act clearly requires the views of the patient to be taken into account and accorded respect, as has happened here, there is no basis for concluding those subjective views are determinative. The judicial comment quoted in submission with respect to decision-making with reference to issues arising under the Guardianship and Administration Act 1986,[1] while of great value in expressing the principle that the wishes of people with disability are to be given effect to whenever possible, do not greatly assist in the context of specific treatment decisions under the Mental Health Act 2014. The Act itself requires the consideration of that critical issue.
7. Related to the above point, in oral submission the above written submission was refined to be that, where there are two reasonable ways to compulsorily treat a person under the Act, including where one option is ECT, the patient's subjective view should determine which is provided. I reject this submission. It is clear the Act would require that such a view be given great weight in the treatment decision. However, the Act does not operate such that the subjective view would decide the issue. I reiterate that I regard this as a hypothetical submission as the evidence was ECT is, at this time, the only reasonable option.
8. Fifth, I reject the submissions to the extent that, in my view, they under-play the gravity of the consequences of the potential for deterioration in EWL's mental health and over-emphasise the feasibility of providing alternative treatment as discussed above.
9. Sixth, I accept the submission that it is important to recognise that s 11(1)(d) of the Act recognises that persons receiving mental health services should be allowed to make decisions about their assessment, treatment and recovery that involve a degree of risk. However, that aspect of the Mental Health Principles must be balanced against the other principles, such as to the importance of recovery. Here, the risk is too great.

Objectives of the Act and Mental Health Principles

1. For the sake of completeness, I note that in reaching this decision I have considered the objectives of the Act and the Mental Health Principles as set out at ss 10 and 11 of the Act. I regard my decision as properly made within the requirement to balance best available outcomes in the context of giving due weight to the rights and wishes of those being treated.

1. In making this decision I have also considered EWL's rights in under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter).
2. In reviewing a decision of the MHT, VCAT acts as a public authority and is therefore bound by the Charter when doing so. See s 38(1) of the Charter and the decision of Bell J. in Kracke v Mental Health Review Board & Others (General) [2009] VCAT 646.
3. Deciding this application engages EWL's rights:
   1. To freedom from medical treatment without his or her full, free and informed consent (s 10(c) of the Charter); and
   2. To freedom of movement (s 12 of the Charter) (in that EWL is hospitalised overnight to receive ECT).
4. In my view, granting the application sets a reasonable limitation on his rights. Section 7(2) of the Charter provides:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1. In Kracke, VCAT considered the application of s 7(2) and each of the factors set out in that section to the limitation of rights under the Mental Health Act 1986 (at paras 742-784) and concluded:

The limitations on Mr Kracke's human rights imposed by the operation of the provisions of the Mental Health Act for making, maintaining and reviewing involuntary and community treatment orders are made under law, reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom. Therefore, the provisions satisfy the general limitations provision in s 7(2) of the Charter.

1. In my view, similarly, the limits on EWL's rights by granting the application to perform ECT are reasonable and demonstrably justified.

1. The MHT's order which is under review, is expressed as a standard form "Determination regarding ECT Application (Adult Patient)" dated 7 July 2014. It addresses the decision criteria and grants the application for not more than 12 ECT treatments to be completed in 21 weeks. The 21 weeks coincides with the expiry of the CTO.
2. The question arises as to whether VCAT having decided the criteria are satisfied and agreeing with the granting of the application should simply affirm the MHT's recent decision or decide a different maximum number of ECT treatments which may be delivered by the expiry date of the CTO.
3. The 21 weeks from the MHT's 7 July 2014 determination gave an end date of 1 December 2014. With these orders dated 25 August 2014, even if a treatment is scheduled before the end of August, four further treatments (one in each of August, September, October and November) may be scheduled before 1 December 2014.
4. On the evidence before me, in my view the preferable decision is to allow a maximum of eight further treatments which must be completed by 1 December 2014. I stress the eight is a maximum, not the number expected. The extra four is to cater for the hopefully unexpected need to increase the frequency of treatment at some point before 1 December 2014.
5. By taking this approach in this proceeding, I do not flag some form of desirability that VCAT always 'fine tune' the MHT's decision, if agreeing an application should be granted. There may well be cases where VCAT would simply affirm the previous decision.

[1] Including XYZ v State Trustees Ltd [2006] VSC 444; (2006) 25 VAR 402 at [34] and [26] and PJB v Melbourne Health (Patrick's Case) [2011] VSC 327.