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[2026] NSWCA 143
procedural. The application for a stay of the Court of Appeal’s orders made on 17 July 2026 was refused. The respondent did not seek costs ([44]).
The Court of Appeal refused to pause its earlier orders while KLH considered asking the High Court for special leave to appeal. It accepted that ECT proceeding could make a later appeal practically useless. But it found the proposed appeal’s prospects were low and that the consequences of further delay for JTR, including his ongoing distress and worsening condition, outweighed that concern. The decision concerns the stay application, not a fresh determination that ECT must be administered.
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2,258 words · generated 07/10/2026
In KLH v Northern NSW Local Health District (No 2), Kirk JA considered whether to stay the Court of Appeal’s orders made four days earlier, while KLH pursued a possible application for special leave to appeal to the High Court. The application was for a stay “pending determination of the proposed application for special leave” and, if leave were granted, pending determination of the appeal ([1]).
15 cited instruments linked from this judgment.
The underlying dispute concerned whether JTR, an involuntary patient diagnosed with treatment-resistant schizophrenia, could be given electro-convulsive therapy without his consent. KLH is JTR’s mother and designated carer ([3]). Under s 96(3)(b)(ii) of the Mental Health Act 2007 (NSW), the Mental Health Review Tribunal had to be satisfied that ECT was “a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the patient” ([4]).
The Tribunal first authorised up to 12 treatments on 19 January 2026 ([5]). After Lindsay J ordered a fresh inquiry, a differently constituted Tribunal made a second determination on 30 March 2026, again authorising up to 12 treatments ([7]). The Supreme Court dismissed KLH’s appeal on 2 June 2026 ([9]). On 17 July, the Court of Appeal granted leave to appeal but dismissed the appeal, rejected most of the further evidence, and lifted the stay that had been in place ([10]).
KLH then sought a further stay. She identified possible special leave grounds concerning the construction and application of s 96(3)(b)(ii), including relevant considerations, alternatives to ECT, proportionality, liberty and autonomy. She also relied on recent evidence about a revised medication plan ([14]–[18]). The Court refused the stay on 21 July 2026 ([44]).
The judgment does not order that ECT be administered. It explains that the Court of Appeal’s earlier decision lifted the prohibition on administering ECT, while whether ECT should be given, or continued at any particular point, remained a matter for the treating doctors ([41]).
The governing approach was that exceptional circumstances must be shown to justify a stay pending an application for special leave. The court considers, among other things, prospects of special leave, the balance of convenience, and whether the proposed application could be rendered nugatory without a stay. The list is not exhaustive ([20]–[21]).
Kirk JA treated the special leave prospects assessment as “an impressionistic exercise”, particularly difficult because KLH had not filed an application or articulated particular grounds ([23]). He allowed for the fact that she was self-represented and had only a few days to consider the Court of Appeal’s reasons, but still assessed the prospects as low or insubstantial ([23], [32]).
Several matters informed that assessment. CA1 had considered statutory construction, but KLH did not identify a specific criticism of that reasoning. The Court considered that bodily integrity and autonomy were important common law values, but said those considerations could not override the detailed statutory regime ([24]). It also noted that the criteria in the NSW provision were not replicated in the same terms in other Australian jurisdictions. The Court had considered s 96(3)(b)(ii) for the first time in CA1, and its members were unanimous; KLH had identified no disagreement among courts on the relevant issue ([25]).
The Court further characterised the principal issue in CA1 as an evaluative application of statutory criteria to particular facts, rather than a question generally likely to attract special leave ([27]). It emphasised that four decisions had addressed the ECT application in the preceding six months, involving ten decision-makers, all reaching the same conclusion. Four psychiatrists had also supported ECT, and KLH had not adduced contrary medical evidence ([28]–[29]). The judgment treated that consistent expert and decision-maker view as relevant to the prospects of a special leave ground about whether the statutory criteria were met ([29]).
The balance of convenience was the other central consideration. The Court accepted the respondent’s position that if ECT proceeded, the proposed special leave application would likely be rendered nugatory, because an individual treatment could not be undone ([33]). But that concern was not decisive by itself. The Court drew support for that proposition from Obeid v The Queen at [14] ([33]).
Against a stay, the Court placed the urgency of ECT applications, reflected in s 95 of the NSW Act, which requires the Tribunal to hold an inquiry “as soon as practicable” ([34]). It also considered the time already elapsed: the first ECT application was made on 16 January 2026, and stays or notice orders had prevented the Tribunal’s determination from taking effect until the Court of Appeal lifted the stay on 17 July ([35], [44]).
The medical evidence was important to that balancing exercise. The Court relied on evidence in CA1 describing JTR’s daily distress in response to auditory hallucinations and the possibility that ECT might alleviate that distress after other treatments had failed ([35]–[37]). It considered Dr Lugg’s more recent evidence, but read it as indicating that JTR’s condition remained drug-resistant and that his risk profile and behaviour had deteriorated, rather than showing that the new medication plan was more effective than ECT ([38]–[40]). The Court said it had no evidence that the new regime was working to an extent that undermined the imperative for ECT ([41]).
Taken together, the low prospects of special leave, the prolonged delay, the urgency of the treatment decision, and the evidence of JTR’s ongoing suffering outweighed the real risk that a later appeal would have reduced practical utility ([42]–[44]).
This judgment is a procedural ruling on a stay, not a fresh merits decision on the statutory criteria for ECT. It did not change the legal test in s 96(3)(b)(ii), nor did it independently determine whether the treating team should administer ECT. Its immediate holding is about when a court should preserve the position pending a proposed special leave application.
Before this decision, the relevant stay principles had been summarised in 123 259 932 Pty Ltd v Cessnock City Council (No 2). Kirk JA quoted that summary: exceptional circumstances are required, and relevant factors include prospects of special leave, the balance of convenience and the possibility that the application may be rendered nugatory ([20]–[21]). KLH (No 2) applied that framework to an urgent mental health treatment dispute.
The judgment also records that CA1 was the first time the NSW Court of Appeal had considered s 96(3)(b)(ii), and that the Court was unanimous ([25]). It notes that comparable ECT provisions in other States and Territories use different wording, with the Northern Territory provision described as the closest analogue, but not identical ([25]). Those observations contributed to the Court’s assessment of special leave prospects. They do not amount to a ruling on the meaning of every other jurisdiction’s legislation.
After this decision, the Court of Appeal’s stay remained lifted. The judgment refused to delay the effect of the earlier orders, but expressly left clinical decisions about whether to administer ECT to the treating doctors ([41], [44]). It therefore should not be read as a judicial direction to provide ECT, or as a general rule that a proposed appeal cannot justify a stay whenever treatment is urgent. The stated approach remains contextual: the potential loss of appellate utility is significant, but must be weighed with the rest of the circumstances ([33], [44]).
At [20], the judgment states that “exceptional circumstances must be shown” for a stay pending special leave. In plain English, a person seeking this kind of stay must establish more than the fact that they intend to ask the High Court to hear an appeal. The court assesses the relevant circumstances together, rather than treating any one factor as automatically decisive.
At [23], Kirk JA says that assessing special leave prospects is “an impressionistic exercise”. The Court was not deciding a filed special leave application or ruling on fully particularised grounds. It was making a provisional assessment based on the broad possibilities KLH identified, while acknowledging the limited time available to her.
At [25], the Court noted that the statutory criterion in NSW was not replicated elsewhere in the same terms, and that CA1 was the first Court of Appeal decision considering it. The Court treated the lack of identified disagreement, together with its own unanimity, as weighing against the prospects of special leave. This is an assessment made in the stay application, not a ruling that no issue about the provision could ever warrant High Court consideration.
At [29], the Court emphasised that ten decision-makers had reached the same conclusion and that four psychiatrists supported ECT, with no contrary medical evidence from KLH. In plain English, the Court considered the consistency of the earlier decisions and expert opinions relevant to whether the proposed appeal had a substantial prospect of attracting special leave.
At [33], the Court accepted that ECT proceeding would likely render a special leave application nugatory because treatment already given could not be undone. It immediately qualified that point: it was “not, however, determinative of itself”. This means that practical irreversibility was important, but did not settle the stay question.
At [39]–[41], the Court explained why it did not view the new medication evidence as displacing the earlier basis for ECT. It considered that the evidence pointed to continuing drug resistance and problematic behaviour; it did not establish that the medication plan was more effective than ECT. The judgment also clarified that the earlier Court of Appeal decision lifted a prohibition, leaving the treatment decision itself to the treating doctors ([41]).
At [44], the Court’s conclusion was that the nugatory-application risk did not outweigh the combined effect of the other factors. The application was refused because exceptional circumstances had not been demonstrated.
The decision is most directly relevant to applications seeking to stay an appellate court’s orders while a party proposes to seek special leave to the High Court. It concerns a setting where the proposed grounds were not yet particularised, the underlying appeal involved a fact-specific evaluative decision, and the applicant relied on the risk that events would overtake the proposed appeal ([14], [18], [23], [27]).
It may also be relevant where the consequences of refusing a stay are irreversible or could substantially diminish the practical value of a later appeal. The judgment accepts that this is a significant consideration, but says it is not decisive without weighing the full circumstances ([33], [44]).
The urgency of the underlying matter was especially important here. The legislation required an ECT inquiry as soon as practicable, and the evidence described prolonged distress, treatment resistance and problematic behaviour ([34]–[40]). A different case may involve different statutory obligations, medical evidence, delays, proposed appeal grounds or practical consequences. This decision does not provide a universal outcome for stays involving medical treatment.
The procedural history also mattered. By the time of the stay application, the proposed treatment had been considered by two differently constituted Tribunal benches, a Supreme Court judge and a Court of Appeal panel, and had been supported by medical opinions ([28]–[29]). The judgment’s reasoning should be read in that setting, rather than as a general rule that repeated decisions automatically defeat a stay application.
The judgment text does not identify any later decisions treating KLH (No 2). It would therefore be unsupported to state that later courts have followed, distinguished or otherwise applied it.
The authorities it does discuss are earlier authorities. Cessnock supplied the summary of the stay principles applied at [20]–[21]. Obeid v The Queen was cited for the proposition that the risk of a proceeding being rendered nugatory is not necessarily determinative ([33]). Mickelberg v The Queen and Eastman v The Queen were cited in explaining that the High Court can receive further evidence on a special leave application but cannot receive further evidence in an appeal ([30]).
The judgment also refers repeatedly to CA1, the Court of Appeal’s decision in the underlying merits appeal. CA1 supplied the procedural history and factual findings about JTR’s condition, the evidence and the statutory criteria ([1], [24], [35]–[41]). KLH (No 2) does not purport to revise those findings; it considers their significance to the stay application.
The judgment does not decide the outcome or grounds of any special leave application. It records that KLH had not filed one and had not identified specific proposed grounds ([23]). Whether the High Court would grant special leave was not before Kirk JA for final determination.
Nor does this judgment finally resolve any proposed parens patriae application. Kirk JA considered it unnecessary and inappropriate to address the substantial difficulties such an application might face in light of the statutory regime, given the procedural context of the stay application ([15]).
The decision also does not determine whether ECT should in fact be administered at a particular time. It states that the Court of Appeal’s earlier decision lifted the prohibition and that the treatment decision remained with the treating doctors ([41]). The stay ruling therefore should not be treated as a clinical direction.
Finally, although the judgment discussed differences between the NSW legislation and other jurisdictions’ provisions, it did not interpret those other provisions. Its comparison was part of the assessment of whether the NSW question appeared to involve wider legal disagreement or public importance ([25]). The text supplies no later case law showing how courts have subsequently treated this decision.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: KLH v Northern NSW Local Health District (No 2) [2026] NSWCA 143
Hearing dates: 21 July 2026
Date of orders: 21 July 2026
Decision date: 21 July 2026
Before: Kirk JA
Decision: The application for a stay of the orders of the Court of Appeal made on 17 July 2026 is refused.
Catchwords: CIVIL PROCEDURE — Court of Appeal — stay of proceedings — stay pending application for special leave to appeal to High Court — assessing prospects of obtaining special leave impressionistic exercise — unanimity of opinion of decision-makers and doctors relevant to prospects — balance of convenience weighed overwhelmingly against granting stay where patient’s conditions drug-resistant and leading to prolonged suffering and highly problematic behaviour — special leave application rendered nugatory if stay not granted — that fact not sufficient in the circumstances to warrant a stay
Legislation Cited: Judiciary Act 1903 (Cth), s 35A
Mental Health Act 2007 (NSW), ss 95, 96, 163, 164
Mental Health Act 2009 (SA), s 42
Mental Health Act 2014 (WA), ss 409-415
Mental Health Act 2015 (ACT), s 155-158
Mental Health Act 2016 (Qld), ss 507-509
Mental Health and Related Services Act 1998 (NT), s 66
Mental Health and Wellbeing Act 2022 (Vic), ss 98-100
Cases Cited: 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
KLH v Northern NSW Local Health District [2026] NSWCA 136
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Obeid v The Queen (2016) 90 ALJR 447; [2016] HCA 9
Category: Procedural rulings
Parties: KLH (Applicant)
Northern NSW Local Health District (First Respondent)
Mental Health Review Tribunal (Second Respondent)
JTR (Third Respondent)
Representation: Self represented (Applicant)
S Palaniappan and K Renehan (First Respondent)
Submitting appearance (Second Respondent)
No appearance (Third Respondent)
Solicitors:
Crown Solicitor’s Office (First and Second Respondents)
Unrepresented (Third Respondent)
File Number(s): 2026/237014
Publication restriction: Nil
On 17 July 2026 judgment was delivered in this matter: KLH v Northern NSW Local Health District [2026] NSWCA 136 (CA1). KLH has now sought a stay of the orders of this Court “pending determination of the proposed application for special leave to appeal to the High Court of Australia, or, if leave is granted, pending determination of the appeal by that Court”.
The application for a stay is refused. In what follows I first set out the background to the present application (at [3]-[13]) before considering its merits (at [14]-[43]) and expressing my conclusion (at [44]).
As explained in CA1, JTR is an involuntary patient at the Lismore Base Hospital diagnosed with treatment resistant schizophrenia. KLH is his mother and designated carer. The Hospital is part of the first respondent, which I shall call the respondent.
On 16 January 2026 JTR’s treating medical team applied to the Mental Health Review Tribunal to authorise the treatment of JTR with electro-convulsive therapy (ECT) without his consent (the First Tribunal Application). Under s 96(3)(b)(ii) of the Mental Health Act 2007 (NSW) (the Act), the Tribunal was required to be satisfied that administering ECT was “a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the patient”.
On 19 January 2026 the Tribunal determined that JTR was incapable of giving informed consent to ECT, and that ECT was a reasonable and proper treatment and was necessary or desirable for the safety or welfare of JTR. It permitted up to 12 ECT treatments be completed on or before 6 April 2026 (First Tribunal Determination).
On 27 January 2026 KLH filed an appeal in the Supreme Court pursuant to ss 163 and 164 of the Act.
In the circumstances explained in CA1 at [68], on 23 March 2026 Lindsay J ordered that a differently constituted Tribunal undertake a fresh ECT administration inquiry. As a result, a second ECT application was made to the Tribunal by JTR’s treating medical team on 26 March 2026 (the Second Tribunal Application). On 30 March 2026 the Tribunal – differently constituted from the one that made the First Tribunal Determination – determined that JTR was incapable of giving informed consent to ECT, that ECT was a reasonable and proper treatment and it was necessary or desirable for the safety or welfare of JTR. It permitted up to 12 ECT treatments to be administered on or before 29 June 2026 (Second Tribunal Determination)
On 1 April 2026 KLH prepared a draft notice of motion to appeal the Second Tribunal Determination. In effect, the Supreme Court proceedings were treated as an appeal from the Second Tribunal Determination.
On 6 and 11 May 2026 the matter was heard by Lindsay J. His Honour published his reasons on 29 May 2026 and allowed the parties the opportunity to comment upon the proposed orders. On 2 June 2026 his Honour made formal orders dismissing the appeal.
KLH filed a summons seeking leave to appeal to the Court of Appeal on 9 June 2026. On that date Lindsay J granted a stay of the operative orders pending the Court of Appeal’s determination. This Court – comprised of Mitchelmore JA, Price AJA and me – heard the application for leave to appeal and the substantive appeal concurrently on 2 July 2026, made orders allowing further evidence to be identified which either side sought to adduce by 7 and 8 July, and published its decision on the morning of 17 July 2026. The Court granted leave to appeal, dismissed the appeal, rejected most of the further evidence, and lifted the stay which Lindsay J had imposed on 9 June 2026.
That pending further order of the Court, the first defendant not administer Electroconvulsive Therapy (ECT) to [JTR].
That order 6 made by Hammerschlag CJ in Equity on 5 February 2026 be reinstated pending further order.
As the associate to Lindsay J explained in an email to KLH in response, the appropriate forum to seek a stay of this Court’s orders is in the Court of Appeal, not the Equity Division. The associate also drew the email and motion to my attention, and I listed the matter before me at 3:30 PM that afternoon.
On that occasion, counsel appearing for the first respondent said her client gave an undertaking to the Court not to administer ECT prior to the close of business on Tuesday 21 July 2026. On that basis, I made directions for exchange of submissions and provision of any evidence on 20 July 2026, and for the matter to be listed before me for hearing this morning. I indicated that I would treat the motion emailed to Lindsay J as an application for a stay of the orders made in CA1 pending a possible special leave application. The parties complied with the directions made. The order that the applicant ended up seeking was the stay identified at [1] above.
KLH provided short written submissions outlining her case for a stay, and also made oral submissions. She did not identify any particular proposed grounds of appeal to the High Court. In oral submissions she said that potential grounds being explored included the “construction and application” of s 96(3)(b)(ii) of the Act. She said that could include whether all relevant considerations had been considered; the availability of alternative treatments; and issues of proportionality, liberty and autonomy.
KLH relied upon further evidence that it seems had been placed before Lindsay J after judgment had been reserved by this Court. As I understand the position, KLH sought to make some new case in the Supreme Court opposing the administration of ECT to JTR based upon the Supreme Court’s parens patriae jurisdiction. If so, that should have been done in separate proceedings given that his Honour had made final orders resolving the statutory appeal, which orders had then been appealed to this Court. For current purposes the apparent procedural irregularities may be ignored. It is not necessary or appropriate here to address the substantial difficulties that any such application would have in the face of the orders authorising ECT having been made pursuant to a detailed statutory regime.
KLH relied in particular upon an affidavit of Dr William Lugg, the Acting Clinical Director of Adult Psychiatric Inpatient Services at Northern NSW Local Health District. The affidavit had been filed in response to KLH’s further application to Lindsay J. KLH said the effect of that affidavit was as follows:
a. the amended medication plan was based on the best currently available evidence and [JTR’s] expressed personal preferences (paragraph 10);
b. an obvious clinical improvement had been observed following administration of zuclopenthixol acuphase (paragraph 12);
c. the available evidence suggested that the amended medication plan would attenuate symptoms and reduce risk factors (paragraph 17);
d. implementation of the amended medication plan was strongly recommended (paragraph 18).
KLH seemed to suggest that an alternative treatment plan, other than ECT, had recently been identified by the respondent and that this undermined the need for ECT in light of the factors identified in CA1 at [61]. She noted that the Lugg affidavit and related material was not before this Court when it made its decision. She said that she does not submit that the material “determines the outcome of the proposed special leave application”, but submitted that it was “sufficient to establish an arguable basis for a proposed application for special leave and support preservation of the status quo pending that process”. In her oral submissions, she asserted that JTR’s behaviour had improved in the last few days since new treatment had commenced last Friday. And she noted that any stay would not leave JTR without treatment, referring to the new treatments being used by the respondent.
KLH submitted further that if ECT proceeded before the proposed special leave application can be considered, then:
a. the practical utility of that application will be substantially diminished;
b. the subject matter of the proposed appeal will progressively be overtaken by events; and
c. meaningful appellate relief may become unavailable in practice.
[10] In summary, then, exceptional circumstances must be shown to warrant the grant of a stay pending the determination of a special leave application; significant factors in that regard are whether the applicant has substantial prospects of obtaining special leave, where the balance of convenience lies and whether the application for special leave may be rendered nugatory unless a stay is granted; those factors are not exhaustive; “substantial prospects” does not require that the court conclude that a grant of special leave is likely; the overall question is whether, taking account of all the circumstances, there are sufficiently significant prospects of special leave being obtained to warrant a grant of a stay, perhaps on terms designed to protect the interests of the respondent.
Relevant criteria for the High Court granting special leave to appeal include the matters set out in s 35A of the Judiciary Act 1903 (Cth), namely whether:
the judgment sought to be appealed involved a question of law that is of public importance, or in respect of which there are differences of opinion between or within courts; and
the interests of the administration of justice require a grant of leave, either generally or in the particular case.
Assessing prospects of obtaining special leave is an impressionistic exercise: Cessnock at [8] and [21]. It is especially difficult to consider such a question in the context of the present matter where no application for special leave has been filed, nor have any proposed grounds been articulated other than in terms of broad possibilities. Of course, KLH is self-represented and has only had a few days to consider this Court’s judgment. Given the circumstances of urgency, I must proceed as best I can, giving KLH some benefit of the doubt as to the potential for her subsequently to specify grounds of appeal.
Issues of statutory construction were addressed in CA1. KLH did not identify any specific criticism of the judgment in that regard. Indeed, she cited the summary of relevant factors identified at CA1 [61] in support of her argument. It is true that issues of bodily integrity and autonomy are at stake, which are important common law values, but such common law considerations cannot override the detailed statutory regime: note CA1 at [55]. It is not apparent that any ground addressing statutory construction would have significant prospects of attracting a grant of special leave to appeal.
It is also relevant, as the respondent submitted, that other States and Territories regulate the administration of ECT in different terms, and the criteria set out in s 96(3)(b)(ii) are not replicated elsewhere: see Mental Health and Wellbeing Act 2022 (Vic), ss 98-100 (and note CA1 at [56]); Mental Health Act 2016 (Qld), ss 507-509; Mental Health Act 2014 (WA), ss 409-415; Mental Health Act 2009 (SA), s 42; Mental Health Act 2015 (ACT), s 155-158; Mental Health and Related Services Act 1998 (NT), s 66. The Northern Territory provision appears to be the closest to s 96(3)(b)(ii), as relevantly the tribunal there must be satisfied that two authorised psychiatric practitioners have reported that they are satisfied that ECT “is a reasonable and proper treatment to be administered and that without the treatment the person is likely to suffer serious mental or physical deterioration”. Even this provision does not use the language of “necessary or desirable for the safety or welfare of the patient”. Furthermore, CA1 was the first time that s 96(3)(b)(ii) had been considered by this Court, and the Court was unanimous. KLH has not identified any differences of opinion within this Court or between this Court and other intermediate appellate courts as to the issues in question. These matters would tend to weaken any special leave application.
The respondent did not dispute, and I accept, that if the administration of ECT is allowed to proceed this will likely render any special leave application nugatory. Any particular application of ECT once done cannot be undone. That is a significant consideration. It is not, however, determinative of itself: note Obeid v The Queen (2016) 90 ALJR 447; [2016] HCA 9 at [14] (Gageler J).
An application for an ECT determination is urgent of its nature, and that was true on the facts here (see CA1 at [107]-[109]). So much is manifested and reinforced in s 95 of the Act, which states that the Tribunal “must hold an ECT inquiry about a person as soon as practicable after an application is made to it under this Division”. Here, the First Tribunal Determination was made three days after the First Tribunal Application had been filed, and the Second Tribunal Determination was made four days after the Second Tribunal Application had been filed.
An ECT determination was first sought on 16 January 2026, just over six months ago. Various stay and/or notice orders have been in place until 17 July 2026 and no ECT has been administered in that time. In this context I re-iterate what was said in CA1:
[191] … I am persuaded, like the primary judge and the two earlier Tribunal benches, that administering ECT to JTR has been shown to be a reasonable and proper treatment which is at least desirable for his safety or welfare. Even allowing for the real significance of the factors against that view, the evidence of the terrible distress caused to JTR by his ongoing psychosis speaks loudly. The evidence indicates that there is at the least a significant chance that ECT may alleviate that distress, where other treatments have failed, and where the risks of the treatment are limited.
There is obviously ongoing daily distress that [JTR] experiences from responding to auditory hallucinations that he described as derogatory and mean to him. And obviously he's quite upset and distressed by those on a daily basis. So most importantly for his experience, that would be the down side of him not having ECT that could potentially prevent those experiences for him.
Dr LB also said that “when [JTR] is having an episode of responding to auditory hallucinations, he is so, so tortured by that and so distressed, it’s really, really difficult to watch” (see CA1 at [145]). As to long term harm, Dr LB said in her affidavit that “[p]ersistent psychosis is associated with structural brain damage, a poorer response to treatment and a faster decline in cognitive functioning long-term” (see CA1 at [170]).
Insofar as KLH suggested that the Dr Lugg material shows that there are treatments available to ameliorate JTR’s distress whilst the special leave application proceeds, I do not accept her argument that the new treatments are proving more effective than past treatments such as to undermine the justification for administering ECT. Dr Lugg gave evidence that new medication was considered necessary because:
in the period 14 June to 2 July 2026 JTR was showing “increased irritability, agitation and disinhibition”, as evidenced by an alleged physical assault and alleged indecent conduct by him, along with increased signs of distress;
from 9 July 2026, JTR’s “risk profile has changed significantly”, such as to be “acutely elevated”, as there was further sexually disinhibited behaviour and two alleged sexual assaults and two alleged physical assaults by him.
Dr Lugg’s evidence indicates – consistently with the evidence that was considered by this Court in CA1 – that JTR’s schizophrenia and psychosis is proving drug-resistant, and is leading to highly problematic behaviour. There is force in the respondent’s submission that it suggests that JTR’s behaviour and condition is deteriorating. That behaviour is relevant to his own safety and welfare in the manner explained in CA1 at [43]. That further, stronger drugs are considered necessary to control his behaviour does not indicate that they are more likely than previous drugs to end his ongoing psychosis. Dr Lugg also notes that one of the three new drugs proposed “cannot be given as a long-term treatment”.
Dr Lugg neither says nor implies that these three drugs are a preferable or more efficacious treatment for JTR’s mental health condition than ECT. Dr Lugg’s evidence is to the contrary, making clear that the new treatment plan is not the preferred route and was being adopted because of the treating team’s inability to administer ECT:
[JTR] has been diagnosed with treatment-resistant schizophrenia (TRS). Currently, clozapine or ECT are the most evidence-based treatment for TRS. In relation to [JTR], we cannot currently administer ECT give the required tribunal and court approval process is ongoing, and cannot administer clozapine given [JTR’s] previous serious negative reaction to clozapine. Putting ECT to one side, if clozapine cannot, or will not, be taken (for any reason), currently available evidence suggests that high dose (>2Dmg per day) olanzapine may be the most effective alternative medication.
KLH asserted that the new drug regime appeared to be working. She effectively asked that administration of ECT be delayed in order to see if this new regime is efficacious. I do not have evidence before me that the new regime is working, let alone working to such an extent as to undermine the imperative for using ECT. In any event, the effect of this Court’s decision was simply to lift the prohibition on administering ECT that otherwise applied. Whether or not that ECT should be administered at all, or whether treatment should continue at any particular point, remains a decision for the treating doctors: note CA1 at [29].
As the respondent submitted, JTR’s ongoing suffering cannot be ameliorated by placing conditions on the grant of a stay. Requiring KLH to act with great haste will not do so. And even with substantial expedition it will almost inevitably take weeks, if not months, for any special leave application to be prepared, responded to, and determined.
I accept that JTR does not want ECT, that KLH supports him in that view, and that she herself opposes the administration of ECT. But in the circumstances outlined, and taking account of the numerous decision-makers who have determined that the statutory criteria are met, the balance of convenience is weighed overwhelmingly against granting a stay.
**********
KLH
Northern NSW Local Health District (No 2)
[2026] NSWCA 136
(2000) 203 CLR 1
(1989) 167 CLR 259
(2016) 90 ALJR 447
The application for a stay of the Court of Appeal’s orders made on 17 July 2026 was refused. The respondent did not seek costs ([44]).
The CA1 judgment addressed a distinct ground complaining of a failure by the primary judge to accord procedural fairness by not permitting the issue of subpoenas on two occasions shortly before the hearing below commenced. This aspect of the appeal was not identified by KLH as a potential ground of appeal. In any event, the principles relating to procedural fairness are well-established and it is currently difficult to see that any issue of principle or general importance might be identified by KLH that could attract a grant of special leave.
The main issue addressed in the judgment was whether the criteria set out in s 96(3)(b)(ii) of the Act were satisfied on the evidence. That is an evaluative exercise. It is tied to a very substantial degree to the particular facts of the case. Such disputes are not of a kind generally granted special leave.
It is also significant that there have now been two determinations by differently constituted benches of the Mental Health Review Tribunal, made up of three members. The Tribunal is the expert body allocated primary decision-making responsibility under the Act. The Second Tribunal Determination was then confirmed by Lindsay J in the Supreme Court on a de novo appeal, with the benefit of evidence. That decision was itself reviewed in an appeal by way of rehearing to this Court, involving extensive consideration of the facts on an application of the correctness standard (note CA1 at [16]-[19]).
Thus in the last six months there have been four decisions relating to the application to administer ECT to JTR, involving 10 decision-makers. All have reached the same conclusion. Moreover, three doctors were involved in making the two applications to the tribunals, and there was a separate expert review by another psychiatrist, Dr TB, who also supported the administration of ECT. KLH did not adduce evidence from any doctor undermining the case for ECT to be administered. That unanimity of view is likely to be significant in the High Court’s assessment of any special leave ground relating to the satisfaction of the s 96(3)(b)(ii) criteria.
In relation to the affidavit of Dr Lugg, KLH may have been suggesting that it would assist her to obtain special leave to appeal by undermining, or rendering out of date, the conclusion of this Court. The argument is unpersuasive. The High Court can receive further evidence on a special leave application. But it cannot receive further evidence in an appeal: see eg Mickelberg v The Queen (1989) 167 CLR 259 at 267; [1989] HCA 35; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29. Thus the evidence would not aid her, for example, in suggesting that a different conclusion should be reached by that Court applying the s 96(3)(b)(ii) criteria.
The High Court may grant special leave in its “visitation” jurisdiction if it perceives that that is in the interests of the administration of justice in the particular case. KLH suggested that the matter was of great importance to JTR and to her. I accept that. But a grant of special leave on a visitation basis seems to me most unlikely taking account of the unanimity of view of the 10 decision-makers, the views of the four psychiatrists, the absence of any contrary expert view, and the compelling issues of urgency referred to below.
Making all possible allowance for what the grounds of appeal might be, I consider the prospects of obtaining special leave to be low, or, put another way, insubstantial.