1. the MHT provided the materials it was required to provide under s 49(1)(b) of the VCAT Act;[3] 2. the treating team provided: 1. a further treatment report; and 2. in response to a request from the applicant, its recent inpatient treatment unit notes for the applicant; and

1. the applicant provided: 1. an affidavit from the applicant's legal representative; 2. the 'What I want to tell the Tribunal' form completed for the applicant for the MHT hearing on 6 January 2026; and 3. a letter from the second respondent's Aboriginal mental health liaison officer (the liaison officer) dated 12 January 2026.
2. On 13 January 2026, I heard the application for review.
3. At the hearing, HXU, through his legal representatives, withdrew the injunction application on the basis that VCAT would be deciding the application for review before any further ECT was to occur.
4. After hearing from HXU, his legal representatives, the liaison officer and two of the practitioners from the treating team, I made orders setting aside the ECT order and refusing the ECT application. I provided reasons at the hearing for the orders I made.
5. HXU's legal representatives have subsequently asked that I provide a written version of the reasons provided at hearing.
6. These reasons reflect the reasons given at the hearing, with some additional background and editing to improve readability and clarity.

1. Under section 383, any person who was a party to the proceeding before the MHT may apply to VCAT for a review of any determination made by the MHT under the MHW Act.
2. Section 51 of the VCAT Act sets out the functions of VCAT when conducting a review. VCAT may affirm the decision, vary the decision, set the decision aside and make another decision, or set the decision aside and remit the matter to the original decision maker for reconsideration.
3. When conducting a review, VCAT has all the functions of the decision maker. This means that VCAT, like the MHT at the first instance, must consider whether the requirements for an ECT order set out in s 100 have been met.
4. Section 100 requires that VCAT must determine the ECT application and make an order authorising a course of ECT if VCAT is satisfied that:
   1. HXU does not have capacity to give informed consent to ECT; and
   2. there is no less restrictive way for HXU to be treated.
5. Section 100(b) requires that if VCAT is not satisfied of the above, VCAT must make an order refusing ECT.
6. Part 3.2 contains a number of provisions about capacity and informed consent:
   1. before treatment or medical treatment is given to a person under the MHW Act, the person's informed consent must be sought;[4]
   2. the person seeking the informed consent must presume the person whose consent is sought has the capacity to give it but does not have to seek informed consent if the person seeking consent reasonably considers that the person does not have capacity to give informed consent;[5]
   3. consent can be given by a person if that person:
      1. has capacity to give informed consent;
      2. has been given adequate information to enable them to make an informed decision;
      3. has been given a reasonable opportunity to decide whether or not to consent;
      4. has given consent freely without undue pressure or coercion; and
      5. has not withdrawn their consent or indicated their intention to withdraw consent;[6]
   4. a person has capacity to give informed consent if the person:
      1. is able to understand the information they are given for the purpose of deciding whether or not to consent;
      2. is able to remember that information;
      3. is able to use or weighthat information in deciding whether or not to consent; and
      4. is able to communicate the decision the person makes by speech, gestures or any other means;[7] and
   5. in deciding whether a person has capacity to give informed consent, the following must be considered:
      1. the person's capacity to give informed consent is specific to the particular decision and may change over time;
      2. it should not be assumed that the person does not have capacity to give informed consent only because of the person's age, appearance, disability, condition or behaviour, or because the person makes a decision that could be considered unwise; and
      3. whether the person may be unable to give informed consent by providing the person with appropriate supports.[8]
7. The provisions in the MHW Act about capacity and informed consent must be construed and applied in a manner compatible with:
   1. the mental health and wellbeing principles set out at Part 1.5; and
   2. the Charter of Human Rights and Responsibilities Act 2006 (Vic).[9]

DOES HXU HAVE CAPACITY TO GIVE INFORMED CONSENT TO ECT?

1. I am required to presume that HXU has capacity to give informed consent unless there is sufficient information before me to reasonably consider that HXU does not have capacity to give informed consent to the ECT set out in the ECT order.
2. HXU has capacity to give informed consent to the ECT set out in the ECT order if HXU:
   1. is able to understand the information HXU is given for the purpose of deciding whether or not to consent;
   2. is able to remember that information;
   3. is able to use or weighthat information in deciding whether or not to consent; and
   4. is able to communicate the decision HXU makes by speech, gestures or any other means.

1. The level of understanding required to demonstrate capacity to give informed consent is not high. All that is required 'is only a general kind of understanding that relates to the nature, purpose and effect of the treatment'.[10]
2. HXU's legal representatives have provided detailed information about a number of discussions they have had with HXU. I give the account of those discussions significant weight. In those discussions, HXU:
   1. gave an explanation of what he understood ECT to be: electroshock therapy given after anaesthetic 'to put electricity in my brain to make the things in my brain normal again' and to 'pass an electric current through the brain to stimulate new brain cells'; and
   2. stated that the treating team told him he needed ECT because he was catatonic and to keep him better.
3. HXU's legal representatives noted that HXU made similar statements at the MHT hearing on 6 January 2026.
4. The liaison officer set out in their letter their assessment that HXU had capacity to understand why the treating team had asked for ECT, stating that HXU 'understands that when he is unwell and goes into a catatonic state ... the only thing that has been able to help has been the ECT.'
5. The treating team did not address HXU's capacity to give informed consent to ECT in the further treatment report. At the hearing, the treating team described their attempts to explain the need for ECT to HXU and their difficulties in assessing whether he understood what he was being told because of his lack of responsiveness, consistent with catatonia symptoms.
6. The treating team's discussions and interactions with HXU about this were clearly challenging given the nature of HXU's mental illness, which significantly limited their ability to provide HXU with the necessary information for him to make an informed decision about whether to consent to ECT and, because of his lack of response, to assess whether he understood that information.
7. I heard from HXU at the hearing. HXU was noticeably withdrawn and unresponsive during the hearing. He would not answer my questions but would answer briefly the questions asked by the liaison officer. He clearly found being asked questions during the hearing very upsetting.
8. In assessing what limited response HXU provided at the hearing, I took into account that he was on fairly serious medication for his mental illness at the time and that the hearing was conducted by videoconference rather than in person.
9. I also took into account the number of courses of ECT HXU had undergone during 2025 including, most recently, a week before the hearing. I was satisfied that, consistent with the 'lived experience principle',[11] HXU's significant experience of undergoing ECT would contribute to his understanding of the nature and effect of ECT.
10. Having considered HXU's interactions with his legal representatives and treating team, and what he was able to communicate at the hearing, I was, on balance, satisfied that he was able to understand information he had been given about ECT.

1. In their report to the MHT, the treating team raised concerns about whether HXU could remember receiving ECT in the past or his past discussions with members of the treating team.
2. I accept that there may well have been significant periods over the course of 2025 when the effects of HXU's mental illness meant he was unable to remember much about what he was told about ECT or the experience of undergoing ECT.
3. However, I am satisfied that in the interactions HXU has had, over the last week with his legal representatives, the liaison officer and the treating team, and even during the hearing before me, HXU showed that he has been sufficiently able to retain and recall information he has been provided about ECT. It may be that the most recent course of ECT has assisted in HXU being able to have better recall, both about his treatment and more generally.
4. Accordingly, even taking into account ongoing medication or symptoms of mental illness, I am satisfied that HXU is able to remember the necessary information to make a decision about whether to consent to ECT.

Is HXU able to use or weigh information in deciding whether or not to consent to ECT?

1. The treating team's assessment was that HXU was unable to use or weigh information about undergoing ECT because when they spoke with HXU he was unable to provide a rationale for why he did not wish to undergo ECT.
2. The affidavit from one of HXU's legal representatives sets out statements made by HXU in discussions with his legal representative and at the MHT hearing about his reasons for not wanting to undergo ECT. HXU acknowledged that he has a mental illness that causes catatonia and that he thought ECT made him better, even though he found it upsetting. He described how he did not like undergoing anaesthetic because he found having a mask placed over his face upsetting.
3. At the hearing before me, HXU agreed that he has a mental illness requiring treatment and repeated that he did not want to undergo ECT. He accepted that he required medication to treat his mental illness regardless of whether he undergoes ECT.
4. I am also satisfied that HXU is able to weigh the fact that, because medication treatment may take longer to be effective than ECT, he may remain on an inpatient treatment order for longer if his mental illness is treated with medication rather than by ECT.
5. Accordingly, I am satisfied that HXU is able to use and weigh the information provided to him about ECT in deciding whether or not to consent to ECT.

1. HXU spoke very little during the hearing before me and appeared to be very sad and distressed. This raised concerns about whether the catatonia symptoms of HXU's mental illness were returning, meaning he may no longer be able to communicate his wishes.
2. On balance, however, I was satisfied it was equally likely that his distress was caused by a reported recent argument with a family member and anxiety about the hearing. As a result, given that HXU had previously and recently been able to clearly express his wishes to his legal representatives, the liaison officer and the MHT, I was satisfied that HXU was able to communicate his decision about whether to consent to ECT or not.

1. In light of the above findings, I am not satisfied that the presumption that HXU has capacity to provide informed consent to ECT has been rebutted by the information before me.
2. I find that he meets the four requirements set out at [30] above and so am satisfied that HXU has capacity to provide informed consent about whether to receive ECT or not.

IS THERE A LESS RESTRICTIVE WAY FOR HXU TO BE TREATED?

1. Section 100 requires that an order authorising a course of ECT can only be made if VCAT is satisfied that the patient does not have capacity to give informed consent to ECT.
2. Accordingly, given that I am satisfied that HXU does have capacity to give informed consent to ECT and so the requirement under s 100(a)(i) is not met, the application must be refused regardless of whether there is a less restrictive way for HXU to be treated.

1. For the above reasons I ordered that the ECT decision be set aside and the ECT application refused under s 100(b).

[1] References to sections and parts in this decision are references to sections and parts of the MHW Act unless otherwise stated.

[2] VCAT understands that it is usual practice for most treating teams to schedule ECT on a Monday, Wednesday and/or Friday because these will be the days when the necessary anaesthetic and related services are scheduled to be available for ECT.

[3] If a proceeding is commenced for review of a decision, the VCAT Act requires that the decision-maker provide VCAT a statement of reasons (s 49(1)(a)) and all documents in its possession that it considers relevant to the review (s 49(1)(b)). Under s 49(2) of the VCAT Act, the statement of reasons and documents must be provided within 28 days of the decision-maker receiving notice of the application for review. Due to the urgent nature of the review of an ECT order, VCAT will generally hear an application for review of an ECT order sooner than 28 days after the application for review of the ECT order is made. As a result, VCAT's current practice in relation to an application for review of an ECT order is to request that the MHT provide the documents required under s 49(1)(b) of the VCAT Act sooner than 28 days but not to require the MHT to provide a statement of reasons for the ECT order.

[9] PBU & NJE v Mental Health Tribunal (2018) 56 VR 141.