KLH v Northern NSW Local Health District [2026] NSWSC 590 | Case summary | Zoe

NSWNSWSC

KLH v Northern NSW Local Health District

[2026] NSWSC 590

Supreme Court of NSW|2026-06-02|Before: Lindsay J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-06-02

Before

Lindsay J

Catchwords

MENTAL HEALTH - Mental Health Review Tribunal – Appeal - Application for Administration of Electroconvulsive Therapy – Forced Treatment – Safeguards - Mental Health Act 2007 NSW, sections 91, 94, 96 and 163

Source

Original judgment source is linked above.

Catchwords

MENTAL HEALTH - Mental Health Review Tribunal – Appeal - Application for Administration of Electroconvulsive Therapy – Forced Treatment – Safeguards - Mental Health Act 2007 NSW, sections 91, 94, 96 and 163

Judgment

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 [2026] NSWSC 590

Hearing dates: 6 and 11 May 2026

Decision date: 02 June 2026

Jurisdiction: Equity - Protective List

Before: Lindsay J

Decision: Appeal against determination of the Mental Health Review Tribunal approving a course of ECT treatment of an involuntary patient dismissed

Catchwords: MENTAL HEALTH - Mental Health Review Tribunal – Appeal - Application for Administration of Electroconvulsive Therapy – Forced Treatment – Safeguards - Mental Health Act 2007 NSW, sections 91, 94, 96 and 163

Legislation Cited: Civil Procedure Act 2005 NSW
Guardianship Act 1987 NSW
Interpretation Act 1987 NSW
Mental Health Act 2007 NSW
Mental Health Regulation 2025 NSW
NSW Trustee and Guardian Act 2009 NSW

Cases Cited: A (by his Tutor Brett Collins) v Mental Health Review Tribunal (No. 4) [2014] NSWSC 31
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Bushell v Repatriation Commission (1992) 175 CLR 408
CJ v AKJ [2015] NSWSC 498
Creer; the Estate of Peters [2007] NSWSC 1291
Director-General, Department of Community Services Re Thomas [2009] NSWSC 217; 41 Fam LR 220
Ex Parte Whitbread in the matter of Hind, a Lunatic (1816) 2 Mer 99; 35 ER 878
Gibbons v Wright (1954) 91 CLR 423
Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315
Holt v Protective Commissioner (1993) 31 NSWLR 227
Hunter and New England Area Health Service v A by His Tutor T (2009) 74 NSWLR 88 In the will of Sheppard [1972] 2 NSWLR 714 IR v AR [2015] NSWSC 1187 Jones v Dunkel (1959) 101 CLR 298 Jones v Dunkel (1959) 101 CLR 298 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 M v Mental Health Review Tribunal and Others [2015] NSWSC 1876 Mahoney v Lindsay (1980) 55 ALJR 188; 33 ALR 601 Minister for Immigration v QAAH of 2004 (2006) 231 CLR 1 P v NSW Trustee and Guardian [2015] NSWSC 579 P v NSW Trustee and Guardian [2015] NSWSC 579 Palmer v Clarke (1989) 19 NSWLR 158 PB v BB [2013] NSWLR 1223 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Austral-Asia) Pty Ltd (1954) 90 CLR 235 Re An Alleged Incapable Person (1959) 77 WN (NSW) 156 Re An Incapacitated Principal [2025] NSWSC 89 Re B (No 1) [2011] NSWSC 1075 Re Estate Ford [2016] NSWSC 8 Re Estate Gowing; Application for Executor’s Commission [2014] NSWSC 247 Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4th) 1 Re Frieda and Jeffrey [2009] NSWSC 133; 40 Fam LR 608 Re KT and JC, Protected Persons [2025] NSWSC 306 Re Victoria [2002] NSWSC 647; 29 Fam LR 157 Re W and L (Parameters of Protected Estate Management Orders) (2014) 94 NSWLR 300 Rogers v Whitaker (1992) 175 CLR 479 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 SMF v Western Sydney Local Health District [2018] NSWSC 303 State of NSW v Gill (2024) 115 NSWLR 536 W v H [2014] NSWSC 1696 Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 CLR 236 Z v Mental Health Review Tribunal [2015] NSWCA 373 Z v Mental Health Review Tribunal [2015] NSWSC 1943

The proceedings were commenced by a summons filed on 27 January 2026 by way of an appeal from an ECT determination made by the Tribunal on 19 January 2026 (limited until 6 April 2026) authorising the mental health facility to treat JTR with ECT.
The summons, as filed, named the Tribunal as first defendant and the Northern New South Wales Local Health District (the legal entity responsible for the mental health facility) as the second defendant.
At the time the summons was filed MJ Slattery J (as duty judge) secured from the Health District an undertaking (recorded in paragraph 12 of his orders) not to commence ECT treatment of JTR until further order of the Court; ordered that JTR be joined in the proceedings as the third defendant; and ordered that he be separately represented “on a best interest basis, subject to approval of a grant of legal aid”. Legal aid having been approved by the NSW Legal Aid Commission, counsel has appeared before the Court as JTR’s Separate Representative.
On 5 February 2026 Hammerschlag CJ in Equity (as duty judge) directed (in effect) that the first defendant be the Northern NSW Health District, the second defendant be the Tribunal and the third defendant be JTR. His Honour also made an order (order 6), which continues in operation, to the effect that “unless the responsible clinician considers that any higher degree of urgency is required for the well-being of [JTR], the [Northern NSW Local Health District] is not to trial any additional treatments not currently in place unless the plaintiff [JTR’s mother, KLH] has been given not less [than] 3 days’ written notice of the intention to do so.
The need for an orderly preparation of the appeal for a contested hearing (including arrangements for discussions to take place between KLH and the mental health facility, and for an independent review of the mental health facility’s proposal for ECT treatment of JTR) meant that any determination of the appeal could not comfortably be expected before the expiry of the ECT determination under appeal.
The ECT determination was limited to expire on 6 April 2026, the same date by which the Tribunal was required to review the involuntary patient order pursuant to which JTR was then detained at the mental health facility.
Accordingly, on 23 March 2026 I made orders the effect of which was to stay the Tribunal’s determination of 19 January 2026 and to order that the Tribunal (differently constituted) undertake a fresh ECT administration inquiry regarding JTR considering, inter alia, whether a programme of ECT should be authorised beyond 6 April 2026.
I also ordered that, subject to further order, should there be an appeal to the Court from a fresh determination made by the Tribunal (after conducting the fresh ECT administration inquiry) authorising ECT treatment of JTR, it could be initiated by way of a notice of motion served on each of the parties to the proceedings and made returnable before me as the Court’s Protective List Judge.
The Tribunal (newly constituted) on 30 March 2026 made the ECT determination presently under appeal (authorising up to 12 ECT treatments of JTR to be completed on or before 29 June 2026), preceded by a determination (under section 35(5)(c) of the Mental Health Act) that JTR is a mentally ill person and should continue to be detained in a mental health facility until a review scheduled for 29 June 2026.
The reasons for decision published by the Tribunal on 30 March 2026 in support of its determination upon review of JTR’s status as a mentally ill person succinctly summarise issues dealt with by the Tribunal on the ECT administration inquiry held concurrently with the mental health review of JTR’s status.
The Tribunal determination on the mental health review comprised two parts.
The first part (the Tribunal’s formal determination) was literally ticked boxes in a printed form that (selected from a number of options) recorded the following:

An internal Tribunal record of the outcome of the ECT administration inquiry simply recorded: “ECT approved”. That is consistent with the wording of section 96(4) of the Act.
The form of these documents reflects the way the Mental Health Act is administered in practice and how public officers working within the mental health system see and perform their respective functions.
On 10 April 2026 the proceedings came before me for directions, at which time a copy of the Tribunal’s determination of 30 March 2026 and a notice of motion filed by KLH (as initiating an appeal against that determination) were received by the Court, together with affidavits affirmed by each of KLH and Dr LB, a consultant psychiatrist employed by the NSW Ministry of Health as part of JTR’s treating team at the Lismore Mental Health Unit affirmed 9 April 2026 bearing upon the future course of the proceedings. The Tribunal published Reasons for Decision in respect of the ECT determination under appeal on 9 April 2026.
On 10 April 2026, the Court formally noted that, in the event that an informal process of discussions between the parties did not produce a workable way forward, the Court would be minded to move the proceedings towards a contested hearing.
When the proceedings next came before the Court on 15 April 2026 directions were given for a contested hearing on 6 May 2026.
The hearing was conducted largely on 6 May 2026 with the benefit of oral evidence from Dr LB and Dr TB, a consultant psychiatrist who supervised preparation of a report of TRSP (the Tertiary Referral Service for Psychosis), dated 11 March 2026, commissioned by Dr LB as an external review of JTR’s medical records (without personal contact with JTR or KLH).
The decision to commission an external review “on the papers” and in consultation with JTR’s treating team, without any personal engagement of TRSP personnel with KLH or JTR, was an unfortunate error of judgement which limited the utility of TRSP’s report as an independent report and fed KLH’s mistrust of the decision-making processes affecting JTR.
The hearing was adjourned part heard from 6 May 2026 to 11 May 2026, when KLH gave evidence and final submissions were made (supplementing those made on 6 May 2026) and judgment was reserved.
Despite several invitations JTR refused to appear before the Court on both 6 and 11 May 2026.
A “Tribunal Client Summary Outcome Sheet” for JTR (printed on 27 March 2026, with entries going back to 3 May 2017) records a history of detention as an involuntary patient, discharge with a community treatment order (under the Mental Health Act) and three ECT administration inquiries (respectively on 6 November 2024, 12 January 2026 and 19 January 2026) preceding the ECT determination made on 30 March 2026. Although an ECT determination was made on 6 November 2024 JTR’s treating team did not in fact administer ECT treatment to JTR at that time, apparently in deference to opposition of KLH.
On 12 January 2026 the Tribunal decided not to make an ECT determination at that time but adjourned the ECT administration application before the Tribunal until 19 January 2026. The determination made on 19 January 2026 was, in effect, stayed pending the determination of these proceedings which facilitated the conduct of a fresh ECT administration inquiry on 30 March 2026.

I take the reference in section 96(3)(b)(ii) to “a reasonable and proper treatment” to require an understanding of both the Ministry’s Policy Directives and the general discretion conferred on an authorised medical officer of a mental health facility by section 84.
Use of the word “is” in connection with the question about which the Tribunal must be “satisfied” ties the Tribunal’s assessment of an ECT administration application to the time of the determination of the application, not (for example) the time of an application being made; but, because an ECT determination is directed to a proposal for “treatment”, it necessarily involves an element of forward thinking, managing risks against an expectation of benefits.
In substance, an ECT determination bears the character of a grant by the Tribunal of authority to administer ECT. In practice, medical officers who apply for a determination appear to view it not so much as involving a grant of “authority” as granting “approval” in the nature of “consent”.
However characterised, it does not relieve a medical officer of a continuing professional obligation (with protections provided by sections 190-191 of the Mental Health Act for decisions taken in good faith) to consider whether an authorised ECT treatment should be administered. It is a licence, not a command. This distinction is important to an understanding of the nature and extent of the authority of clinicians vis-à-vis a patient the subject of “authorised” ECT treatment. A clinician owes a continuing duty of care towards a patient and a need to consult with the patient and his or her significant others about his or her ongoing treatment.
There appears to be no prescribed form (a legislative instrument, as distinct from a form in common use) for either an application or the certificates referred to in section 94. In the present case the application made to the Tribunal took the form of a “MH Report to the Mental Health Tribunal” dated 26 March 2026 containing a “request” for “12 course involuntary electro consultative therapy, 12 weeks IPO [involuntary patient order]” supported by detailed factual observations and a “recommendation for ECT” signed by Dr SD (psychiatry registrar) and Dr LB (a psychiatrist). The “certificates” for ECT signed by those medical officers were on a printed form (with requisite opinions recorded in their handwriting) described as “recommendations” to the Tribunal.
As the Tribunal is a statutory tribunal its functions and powers are governed by the Mental Health Act and R**egulations made under the Act.
As a specialist tribunal (constituted, in the present case, by a legal member, a psychiatrist and a social worker) the Tribunal is a specialist body entitled to respect and deference, consistent with the independent function performed by the Court, on an appeal from the Tribunal.
Because the appeal is expressed to be a “new hearing” the Court is required to form an independent judgement about the application made for an ECT determination. It is not necessary for error to be found in the reasoning or procedures of the Tribunal: Z v Mental Health Review Tribunal [2015] NSWSC 1943 at [19]; SMF v Western Sydney Local Health District [2018] NSWSC 303 at [12].
The course of these proceedings illustrates the idiosyncratic nature of the Tribunal and its relationship with the Court in the context of a section 163 appeal.
The determination of the Tribunal the subject of challenge in these proceedings was made on 30 March 2026 without any attendant reasons. Under the heading “Reasons for Decision” the Tribunal’s determination simply stated “Reasons for Decision to be provided in due course”. Comprehensive (and very helpful) reasons for decision were published separately on 9 April 2026.
I intend no criticism of this course of events. I mention it only to reflect upon the nature of the appeal under consideration. Although it is described as “an appeal” it bears similarity with the review by a judge of a decision by a registrar in the Supreme Court where, upon an application for review, a judge can (for example, on review of a decision about the executor’s commission) request the registrar to provide a report explaining reasons for the decision not provided at the time of decision: In the will of Sheppard [1972] 2 NSWLR 714 at 716G-717C; Creer; the Estate of Peters [2007] NSWSC 1291 at [9]; Re Estate Gowing; Application for Executor’s Commission [2014] NSWSC 247 at [99]-[107]; Re Estate Ford [2016] NSWSC 8 at [58]-[65].
Given the nature and pressure of the work of the Tribunal management of its affairs requires flexibility. In the context of the powers conferred upon the Court under the Mental Health Act it would, in any event, be open to the Court to invite the Tribunal to publish reasons for decision if not otherwise made in the ordinary course of events.
Ordinarily, a statutory court or tribunal cannot, without legislative authority, publish reasons for judgment after its orders have been made: Palmer v Clarke (1989) 19 NSWLR 158. However, the Tribunal’s functions and powers are not constrained in the way of a determination of competing claims of right must be in adversarial proceedings. The Tribunal’s functions are essentially administrative, managerial and inquisitorial rather than adversarial even though it may be called upon (as in the present case) to entertain competing submissions about due performance of its functions.
Significance also attaches to recognition (in sections 164(1) and 167) that on the hearing of an appeal from the Tribunal, or in connection with proceedings in the Tribunal, there is space for the Court to exercise its inherent protective jurisdiction or case management principles governed by the Civil Procedure Act 2005 NSW and rules of court.
I proceed on the basis that the parties to these proceedings accept what I wrote in T v South Western Sydney Local Health District [2022] NSWSC 1173 at [70]-[74]:

The appellant in the proceedings (KLH), named as the plaintiff in the summons by which the proceedings were commenced, is the mother and (within the meaning of sections 4 and 71 of the Mental Health Act) a “designated carer” of JTR.
On a narrow reading of section 163(1)(a) of the Act in isolation, a right of appeal under the section might appear to reside only in “the person” the subject of a determination under challenge.
On a reading of the Act as a whole, the better view is, however, that the “person” who may appeal may be, but need not be, “the person” with respect to whom the appeal relates.
The Northern NSW Local Health District (the second defendant in these proceedings) has carriage of the appeal proceedings on the “new hearing” for which section 164(2) provides, notionally on behalf of the mental health facility (under its management control) which applied to the Tribunal for an ECT administration inquiry. With carriage of the proceedings, it bears the forensic onus of persuading the Court that ECT treatment should be approved: Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297G-298A; T v South Western Local Health District [2022] NSWSC 1173 at [69]. It is, in forensic terms, the contradictor of the plaintiff but the role a Health District plays in any appeal may vary (like that of a trustee in a construction suit where competing interests are separately represented) according to what may be necessary to assist the Court to make a fully informed determination of the particular appeal. It has, in these proceedings, expressly disclaimed any challenge to the standing of the plaintiff to commence and maintain her appeal, noting her status as a “designated carer” of JTR.
Nevertheless, it is necessary to consider the issue of “standing” in the process of construing the text of the Act, understanding the context in which the Act operates and giving effect to the purpose for which it is designed.
In common with other regimes for the management of the affairs of a central personality who is, or may be, incapable of managing his or her own affairs (notably, the welfare jurisdictions of the Court, the protective, probate and family provision jurisdictions) the public health system needs principled arrangements for representation of the central personality if he or she is, or may be, incapable of self-representation. The concept of “standing” to participate in a regulatory process of decision-making affecting a vulnerable person throws light on, and reflects, those arrangements.
The starting point is the Mental Health Act. The role played by the Tribunal in the NSW public health system, its functions and powers are governed by that Act. In particular, as an appeal is a creature of statute the nature of an appeal depends on the terms of the legislation conferring a right of appeal: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [27].
The Act, and Regulations made under the Act (currently embodied in the Mental Health Regulation 2025) are legislative provisions affecting a person who is, or may be, mentally ill, and by reason of such an illness likely to be vulnerable to exploitation and possibly a danger to him or herself and others.
The Mental Health Act lacks a general provision governing identification of a class of persons entitled, or permitted, to participate in decision-making processes affecting a person who is, or may be, a mentally ill person*.*
There is no provision such as section 9 of the Guardianship Act 1987 NSW that defines the class of persons who may apply to the NSW Civil and Administrative Tribunal (NCAT) for a guardianship order as comprising: the person in respect of whom an order is sought; the Public Guardian; or “any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person”. Nor is there a provision such as section 49(1) of the NSW Trustee and Guardian Act 2009 NSW that confines an appeal from a financial management order made by the Mental Health Review Tribunal to the person the subject of the order*.*
The Mental Health Act does have specific provisions relating to “rights of appearance and representation” (sections 96(5A), 152 and 154) that require the Tribunal to consider the views (if known) of particular classes of person associated with a patient or whose participation is approved by the Tribunal, but scattered throughout the Act are a variety of persons who (in a variety of different orders of ostensible priority) are mentioned as potential participants in decision-making: for example, not only the central personality, a designated carer or a principal carer but also relatives, friends, carers, Australian legal providers and “representatives”.
It is against that background that section 163 of the Mental Health Act simply states that “a person may appeal to the Court against a determination of the Tribunal made with respect to the person”.
If that language is to be given practical effect it may need to be read in a way analogous to section 9 of the Guardianship Act 1987 as referring to any person who, in the opinion of the Court, has a genuine concern for the welfare of the subject person*.* As it happens, such a formulation is consistent with the approach taken to standing (and the participation of family, significant others and carers) upon an exercise of the Court*’*s protective jurisdiction.
Although the Tribunal is governed by legislation, the statutory protective jurisdiction it exercises is informed by the inherent protective jurisdiction of the Supreme Court, expressly reserved by the Act. That jurisdiction is authoritatively described by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s C**ase) (1992) 175 CLR 218 at 258-259, by reference primarily to a Canadian judgment in Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21 and a judgment of Lord Eldon in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 CLR 236 at 243. The pivotal observation is that the jurisdiction is a jurisdiction to do what is in the interests, and for the benefit, of an incapable person: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A.
Lord Eldon said of the jurisdiction: “It belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.”
Another seminal judgment of Lord Eldon is Ex Parte Whitbread in the matter of Hind*,* a L**unatic (1816) 2 Mer 99; 35 ER 878, extracted in W v H [2014] NSWSC 1696 at [37]-[40] and more recently in R**e KT and JC, Protected Persons [2025] NSWSC 306 at [21].
In Re KT and JC, at [217]-[219] and [223], the point was made that, upon an exercise of its inherent protective jurisdiction, the Court looks to a vulnerable person’s family and significant others “not on account of any actual interest, but because they are most likely to be able to give information to the Court respecting the situation of the property [of the vulnerable person], and are concerned in its good administration”. What is said here about a vulnerable person’s “estate” applies equally to his or her “person”.
This highlights the centrality of the perspective of a person in need of protection, the importance and limitations of participation by his or her family and significant others in decision-making about him or her, and the need for prudent, pragmatic empathy with the wishes and preferences of the vulnerable person.
Two aspects of a protective regime bear, particularly, upon the question of the standing of a person to institute or maintain proceedings (such as, in the present case, in the Tribunal or on appeal to the Court) affecting the person (or the estate) of a vulnerable person.
First, there is an emphasis on the dignity, rights and views of the central personality, the vulnerable person. Secondly, there is an emphasis on consulting not only with the vulnerable person but also his or her family, significant others or other persons (such as a carer) who may provide information concerning the personal circumstances or wishes and preferences of the vulnerable person.
Conceptually, the purposive nature of a protective regime (including that governed by the Mental Health Act) feeds into the question of standing to institute or maintain an appeal from the Tribunal to the Court under section 163 of the Act.
The question of standing ultimately returns to the rationale for an exercise of protective jurisdiction: the need for an accessible remedy for the protection of a person who, unable to manage his or her own affairs, is in need of protection.
Under the general law a stranger may apply for an order protecting the interests or welfare of a person incapable of managing his or her own affairs: Re An Alleged Incapable Person (1959) 77 WN (NSW) 156; R**e W and L (Parameters of Protected Estate Management Orders*)* (2014) 94 NSWLR 300 at [92]-[94]; Re An Incapacitated Principal [2025] NSWSC 89 at [5]-[12].
The same approach, influenced by public policy considerations, is applicable to an exercise of the Court’s inherent jurisdiction regarding the orderly disposal of a dead body if an applicant for an order of the Court can demonstrate a reasonable case for the intervention of the Court; no “special interest” beyond that is required: State o**f NSW v Gill (2024) 115 NSWLR 536 at [54]-[59].
Standing may be denied to an applicant reasonably perceived to be officious or motivated by an improper purpose but the purpose for which a protective jurisdiction exists governs questions of standing no less than an exercise of jurisdiction generally.
In the present proceedings, the standing of the KLH is based squarely upon her status as the mother and designated carer of JTR and her active, advocacy of his interests and welfare.
An echo of the reasoning of Lord Eldon’s approach to the question of standing upon an exercise of the Court’s protective jurisdiction can be found in sections 71, 72A and 72B of the Mental Health Act, here reproduced with emphasis added:

The same procedural safeguards must be navigated by the Court on its “new hearing” of the mental health facility’s application for an ECT determination. I am satisfied that the procedural requirements of sections 94 and 96 have been satisfied.
Because JTR refused to appear before the Court, but his views were communicated to the Court by KLH as his designated carer, the Separate Representative appointed by the Court and Dr LB, I formally expressed the opinion (required by section 96(5A)) that the Court should proceed with the appeal in the absence of an appearance of JTR on the basis “that determining the ECT inquiry in the absence of [JTR] is desirable for [his] safety or welfare”.
Whatever the outcome of the present appeal, or any future application for an ECT determination, the safety and welfare of JTR are best served by clarification of the terms upon which his ongoing treatment can be administered.
In the course of navigating the procedural safeguards at the commencement of the hearing of the appeal, in consultation with the parties before the Court (but in the absence of JTR, who declined to participate even when urged to do so by everybody participating in the hearing) I endeavoured (in accordance with the case management principles embodied in section 56 of the Civil Procedure Act 2005 NSW) to identify “the real issues in the proceedings”.
There is no dispute that JTR suffers from schizophrenia, nor that he is a mentally ill person correctly detained in a mental health facility as an involuntary patient.
There is a dispute about whether (as the mental health facility contends and KLH disputes) he is correctly to be characterised as suffering from “treatment resistant schizophrenia” or whether (as the Tribunal found in paragraph [76] of reasons for decision published on 9 April 2026) “the efforts to date to treat [his] severe and ongoing symptoms with anti-psychotic medication [have] exhausted reasonable pharmacological treatment options” so as to justify administration of electroconvulsive therapy (“ECT”). KLH is concerned that JTR’s medical treatment has been mishandled and should be recalibrated before resort to ECT.
In any event, the plaintiff contends (and the mental health facility disputes) that the fact that JTR objects to the administration of ECT (which he plainly does) is a factor which, for the time being at least, tells decisively against an administration of ECT against his wishes and, if further attempts at persuasion fail, with the use of force, as Dr LB proposes.
The critical question (reflected in section 96(3)(b)(ii) of the Act) is whether “after considering the medical opinions and other information placed before it [including the objections of JTR and KLH to the ECT treatment proposed for JTR, the Court] is satisfied that the electro convulsive therapy [proposed by the applicant] is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the patient [JTR]”.
That question falls to be determined in a context in which:

The Mental Health Act provides a basic legislative structure for regulation of the administration of electro convulsive therapy based upon an assumption that ECT is a known or identifiable form of treatment (governed by directives of the Ministry of Health about standard practice) and, in the case of an involuntary patient, it can only be carried out with authorisation by the Tribunal.
The effective regulation of the administration of ECT is not confined to the Act. At the intersection of the Act and management of the NSW public health system by executive government there is a general prohibition on the administration of ECT by anybody but a medical practitioner (in accordance with Chapter 4, Part 2, Division 3 of the Act) at a mental health facility or other place approved by the Secretary of the Ministry of Health.
Everybody working the public health system is currently required, under the supervision of the Ministry of Health, to work within the parameters of the Ministry’s Electro C**onvulsive Therapy Handbook: Implementing the Practice Requirements for ECT, dated 12 and 24 March 2026, which provides detailed guidance about the administration of ECT, and expressly states that it “should be used in combination with the Practice Requirements for Electro C**onvulsive Therapy Services (Policy Directive PD2026_010) published 12 March 2026) which detail mandatory practice”.
That Policy Directive and Handbook replaced a NSW Ministry of Health Policy Directive (PD2011_003), to similar effect, published on 18 January 2011 entitled Electroconvulsive Therapy*: ECT* Minimum Standard of Practice in NSW which attached Minimum Requirements in the Delivery of ECT in NSW and Guidelines*: ECT* Minimum Standards of Practice in NSW.
If anything, the Handbook is more favourably disposed to ECT than the Guidelines, reflecting (I infer) a growing acceptance of ECT within the medical profession and the NSW Ministry of Health.
Although it is not to be doubted that, in an appropriate case, the Court (if not also the Tribunal) could question the correctness or wisdom of departmental directions in a particular case (for example, by acting upon expert evidence or specialist journal articles) an orderly conduct of the administration of ECT favours working within the analytical framework of the Handbook. The Ministry’s directives provide a good root of title for the management of ECT and, in the ordinary course, the resolution of disputes about ECT treatments.

In these proceedings a central focus for attention is the proper construction and operation of section 96(3)(b)(ii) of the Mental Health Act, which to some extent mirrors section 94(3) of the Act. Both provisions provide criteria for an assessment of whether ECT treatment can and should be permitted.
Section 94(3), as a matter of form, requires certificates in support of an application for an ECT administration inquiry to address two elements (identified as separate paragraphs of section 94(3)), which in the test required by section 96(3)(b)(ii) to be addressed by the Tribunal are run together in what is presented as a single test, albeit, implicitly, with two limbs expressed in terms similar to paragraphs (a) and (b) of section 94(3).
If one assumes that the legislation was drafted on the basis that differences in wording have significance, then, in my assessment, the form of section 96(3)(b)(ii) may suggest that the purposive words “for the safety or welfare of the patient” relate not only to the expression “necessary or desirable” but also to the expression “reasonable and proper treatment”. In practical reality, the different formulation of the elements in section 94(3) and section 96(3)(b)(ii) probably has no impact on performance of the Tribunal’s function because the words “for the safety or welfare of the patient” can readily be taken as qualifying the expression “reasonable and proper treatment” no less than the expression “necessary or desirable” without distorting either limb. The whole purpose of an ECT determination inquiry is to serve the safety and welfare of the patient.
The utility of requiring certificates that address the two separate limbs to crystalise the nature of the case sought to be made for an ECT treatment (in aid of the Tribunal’s task of making a determination in a context which may be broader than that considered in the certified medical opinions) does not carry over into the task of the Tribunal of making a determination in all the circumstances of the case (more particularly, “after considering the medical opinions and other information placed before it”), leading to a need to be satisfied that “the” ECT treatment proposed by an applicant satisfies the full test of “a reasonable and proper treatment [that] is necessary or desirable for the safety or welfare of the patient”.

The composite expression “necessary or desirable” operates (by virtue of the word “and” immediately preceding it) as a limitation upon a proposal for ECT treatment which satisfies the test of being “a reasonable and proper treatment”. The limitation is presented by reference to alternative standards (joined by the word “or”, which should be construed as “and/or”). The word “necessary” imports a standard of imperative need for the proposed treatment as a treatment required for the safety or welfare of the patient. The word “desirable” imports a standard that requires that a proposed treatment be at least beneficial or advantageous in service of the safety or welfare of the patient.
By “and/or” I mean that the second limb of section 96(3)(b)(ii) can be satisfied by any finding of ““necessary”, “desirable”, “necessary and desirable” or “necessary or desirable”. Any of those suffice to ground a finding that the second limb of section 96(3)(b)(ii) has been satisfied.
Such a construction of section 96(3)(b)(ii) is justified by the injunction in section 33 of the Interpretation Act 1987 NSW that legislation is to be construed in a manner that promotes the purpose or object underlying the legislation.
Each limb of section 96(3)(b)(ii) must be applied using objective standards, empathetically (as required by the scheme of the Mental Health Act) taking into account the subjective wishes and preferences of the patient whose safety and welfare are a (if not the) paramount consideration.
In the context of a specific proposal for the administration of ECT treatment to an involuntary patient, in the absence of “a free and voluntary consent” of the patient (a concept perhaps more confined than that of a “fully informed consent” known to the general law) the Tribunal (and the Court) should be slow to approve the administration of an ECT treatment by force against the known wishes and preferences of a patient (or those his or her family or significant others reasonably understood to be his or her wishes and preferences) and any deployment of force must be confined to what is reasonable and proportionate in the circumstances of the particular case: cf, Director-General*, Department of Community Services Re Thomas* [2009] NSWSC 217; 41 Fam LR 220 at [27]-[29], [34]-[35] and [40]-[41].
This is mandated by the reference to protection of the civil rights of an involuntary patient, albeit qualified, in section 3(d) of the Act. It also finds reflection in the principles for care and treatment listed in section 68 of the Act, with particular reference to limiting “any restriction on the liberty of patients and other people with a mental illness” any interference with their rights, dignity and self-respect … [must be kept] to the minimum necessary in the circumstances”. So far as practicable (acknowledging a need for the safety of the individual and others to be protected) the dignity, autonomy and agency of a patient must be respected. Section 91(2)(f) of the Act requires that in the process of seeking a patient’s consent to ECT treatment he or she be given notice that he or she “is free to refuse or to withdraw consent and to discontinue the procedures or any part of them at any time”.

In an earlier exchange with the Tribunal the Presiding Member asked JTR a question to the effect, “[ECT] is something … you’d prefer not to have[.] Is that correct?” JTR responded “Yeah, it is. Yeah”. He followed up his answer shortly thereafter with a statement that he “just wanted to be discharged”, and he added, without prompting: “Don’t think I need ECT either”. The Presiding Member’s questions and JTR’s responses were both expressed in terms of respectful understatement.
Despite several attempts to secure JTR’s attendance at the hearing of his mother’s appeal to this Court (via the same AVL connection that enabled Dr LB to appear) he refused to appear. The solicitor advocate for the mental health facility, JTR’s separate representative appointed by the Court, his mother (more than once), and, at my invitation, Dr LB all requested his attendance before the Court. All reported his response as a refusal to attend.
Dr LB described JTR’s behaviour as a reflection of his mental illness. In the presence of JTR before the Tribunal, she remarked: “When we tried multiple times to have conversations about ECT, to give [JTR] new information [indecipherable] generally doesn’t agree [indecipherable] engage in that, so he hasn’t been able to weigh up the risks and benefits. I don’t think he has capacity …”.
As JTR’s mother, long-term carer and designated carer, KLH explained to the Court that JTR’s behaviour in not fully engaging with either the Tribunal or the Court reflects, not only his mental illness, but two other factors. First, he was brought up by her not to engage in argument with people with whom he may disagree, but simply to walk away. Secondly, he is frustrated by attempts over a long period to persuade, encourage or pressure him to accept ECT treatment (which he plainly does not want, but also fears), and he sees disengagement as an appropriate social response to a process he cannot influence except by his refusal to submit to ECT treatment.
In my opinion, there is an element of truth in both the observations of the superintendent and those of KLH.
JTR’s refusal to engage with public health authorities or to submit to ECT treatment has a consistency which cannot be entirely explained as an incapacity to weigh up the risks and benefits of ECT treatment. In her evidence, Dr LB conceded that JTR has good days when he is lucid and bad days when he is not. His exchange with the presiding member of the tribunal demonstrates that he is, at least sometimes, able to engage responsively in a conversation in which he expresses his own views (independently of his mother). That said, the short, stunted sentences in which JTR conveyed his views to the Tribunal on 30 March 2026 are consistent with Dr LB’s opinion that, even when lucid, JTR’s mental illness limits his ability to weigh alternative options or to explain his reasoning.

Section 96(3)(b)(i) requires consideration of the question whether JTR has, or has not, given his “informed consent” or, indeed, any form of consent to ECT treatment. Under the supervision of Dr LB the Lismore Mental Health Unit has endeavoured to comply with all the procedural requirements identified in section 91(2) as a prerequisite for a finding of “informed consent under section 91(1) which requires JTR to have given “a free, voluntary and written consent” before he can be taken to have given an “informed consent” to treatment.
To the extent that the “steps” identified in section 91(2) may not been fully performed (contemporaneously with the current proposal for ECT treatment) non-performance of them is a function of JTR’s refusal to engage with the treating team on the question whether he should submit to ECT treatment. In my opinion, his obstruction relieves his treating team of any obligation to pursue further steps once they have (as I accept in this case that they have) used their best endeavours to engage fully with a patient and there is a reasonable foundation for a finding that any lack of engagement lies with a refusal or failure on the part of the patient to engage, rendering further attempts at engagement futile: Cf, by analogy, Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Austral-Asia) Pty Ltd (1954) 90 CLR 235 at 246-247; Mahoney v Lindsay (1980) 55 ALJR 118; 33 ALR 601.
In any event, if the steps identified in section 91(2) are not “complied with” in terms of section 91(1), the consequence is that a patient cannot be taken to have given his or her “informed consent” to ECT treatment whether or not otherwise capable of giving consent.
JTR appears to have taken his stand against ECT treatment on the basis (recognised in section 91(2)(f)) that he is “free to refuse or to withdraw consent and to discontinue the procedures [for ECT treatment] or any part of them at any time”.
The terms of sections 91 and 96(3)(b)(i) do not sit comfortably with the factual matrix of this case. In preparation for the current application to the Tribunal for authorisation of ECT treatment of JTR his treating team have been obstructed in performance of the steps required by section 91(2), and the categories for which section 96(3)(b)(i) provides do not include reference to a person who simply refuses to engage in the section 91 process.
The process leading to the current application for an ECT determination is not the first time JTR has been the subject of such an application. The possibility of ECT treatment, and his treatment team’s confident assessment that it is a desirable if not necessary treatment for him, has been pressed on him, and has been resisted by him, over the course of a year or so.
On at least one occasion (outside a Tribunal hearing) it has been made clear to him that, as an involuntary patient, he might not be able to be discharged from the mental health facility unless and until he has a (beneficial) ECT treatment. That might best be characterised as an inducement, not a threat, but, in any event, JTR has remained constant in his opposition to ECT treatment.
He has been able to reflect on the merits or otherwise of ECT treatment during a period in which he has experienced lucidity on some days and other days upon which he has experienced delusions. His consistent refusal to consent, or to submit, to ECT treatment cannot be discounted entirely, if at all, on the basis that he has been classified (correctly) as a “mentally ill person”. Still, the settled opinion of Dr LB that JTR lacks capacity to consent to ECT treatment even when “lucid” is worthy of respect.
An assessment of “capacity” to perform a particular task is task specific: Gibbons v Wright (1954) 91 CLR 423 at 437-439. An assessment of JTR’s capacity to accept or reject ECT treatment may depend upon the level of abstraction or detail required for such a decision to be made. A rejection of ECT in principle may pre-empt a perceived need to go into details, for example. That appears to be the territory JTR occupies, capably or not.
As explained by McDougall J in Hunter and New England Area Health Service v A by His Tutor T (2009) 74 NSWLR 88 at [23]-[25], in assessing whether a person has capacity to make a decision about medical treatment the sufficiency of the capacity must take into account the importance of the decision, the ultimate question being whether the person suffers from some in impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person: (a) is unable to comprehend and retain information which is material to the decision, in particular as to the consequences of the decision; or (b) is unable to use and weigh information as part of the process of making the decision.
It may be that on a bad day JTR is, and at all material times was, unable to comprehend and retain material information, or to weigh information about the risks and benefits of ECT treatment. However, not every day was a bad day. On a good day he has experienced lucidity. Over a lengthy period during which his treating team have tried to persuade him to submit to ECT treatment he has declined to do so. I infer that those attempts at persuasion were generally, if not always, made on good days.
There is no suggestion in the evidence that JTR has ever wavered in his opposition to ECT treatment or exhibited curiosity about its finer details.
On 5 January 2026 the day before a Tribunal hearing at an ECT administration inquiry on 6 January 2026 (which on that date was adjourned to 12 January 2026), at the invitation of KLH and with some guidance by her, JTR wrote in his own hand the following statement for presentation to the Tribunal:

Dr LB accepted that the language of this note was of a type that JTR would understand; but the force of the note is diminished by its origins in a request by KLH that he consider writing down his views in case he was not feeling well enough to express them personally to the Tribunal on 6 January 2026 and by her presentation to JTR of a template for the statement along with two alternative templates, copies of which are not in evidence.
Nevertheless, the statement is consistent with other reports of JTR’s views and with the description of ECT treatment given to him by his treating team.
JTR’s refusal to submit to ECT treatment is motivated by two concerns. First, he fears the effect of ECT on his brain. Secondly, as demonstrated when he was required to submit to anaesthesia (first to treat a bowel obstruction and later for surgical correction of a dislocated toe) he fears the anaesthetics necessarily associated with ECT treatment.
Dr LB’s evidence to the Tribunal on 30 March 2026 included criticism of JTR that he “has some belief that, you know, medication is going to harm him or the ECT is going to [cause] brain damage and things like that which he’s heard and so he’s sort of fixed on that idea”.
This criticism of JTR’s state of belief may be clinically correct, from the perspective of a psychiatrist playing the dominant role in the ECT approval process, but it invites criticism when viewed from the perspective of a subordinate patient. A foundation for the beliefs attributed to JTR, and his adherence to those beliefs, can be found in the “Consent Information Form” (Part 1 of Form 5 prescribed by Regulation 15(1) of the Mental Health Regulation 2025) coupled with the pressure on JTR (which I do not characterise as improper) to submit to ECT, as he appears to have experienced it, applied over a period of a year or so.
It might also be added that, although JTR has periodically (perhaps persistently) denied that he is mentally ill and asks that he be discharged from the mental health unit in which he is detained, he has generally been compliant in taking medication administered to him. A denial of mental illness may reflect the fact of mental illness, but it might also, to some extent, be a protest in combination with a plea for understanding in a restrictive environment.
Objectively, in light of acknowledged risks of ECT treatment and in the absence of any guarantee that ECT treatment will benefit him, it is not, in common experience, necessarily irrational for a person in JTR’s circumstances to decline to entertain a detailed consideration of inherently uncertain, potential risks and benefits. JTR had, and I infer has, capacity on one of his good days to decide to refuse treatment, if only according to the adage that “the devil you know is better than the devil you don’t know”.
An exercise of protective jurisdiction by the Court (or the Tribunal) requires the Court (or the Tribunal) to weigh potential risks and benefits of any course of action (taking into account the views of JTR and KLH) measuring everything against what is for the benefit and in the interests of JTR, ultimately respecting, but not bound by the subjective views of JTR: Re Thomas [2009] NSWSC 217; 41 Fam LR 220 at [34].
In her evidence on the hearing of the appeal Dr LB opined that JTR’s fears are an expression of his mental illness (rather than rational) and that (as related to her by KLH) they may have been elevated by JTR’s discussions with other patients within the mental health facility with recent personal experience of ECT.
[The extent to which JTR’s views may have been influenced by the “lived experience” of other patients was not explored in depth in the evidence. Had it been explored in any detail, I anticipate that Dr LB might have offered as an explanation of adverse comments about ECT by unidentified patients that such comments were made shortly after treatment, before experience of the longer-term benefits of the treatment.]
As the text of section 96(3)(b) mandates that it is necessary to fit JTR into the categories for which section 96(3)(b)(i) provides, the second category comes closest to the facts: JTR “is capable of giving informed consent to ECT but has refused”.
Whether JTR fits better into one or another of the categories for which section 96(3)(b)(i) provides, the nature and quality of his state of mind can be taken into account upon a consideration of section 96(3)(b)(ii).

Counsel confirmed that, by this evidence, Dr LB was talking about adverse consequences that can occur from ongoing psychosis, if it remains untreated (or treated in an ever increasing range and dosage of drugs).
Dr LB explained that, in the long-term, untreated psychosis can effect changes in the brain and cognition. She elaborated that, on a daily basis, in circumstances in which JTR has been treated with all the different types of meditations generally used to treat people with schizophrenia, without any satisfactory response for his quality of life, he experiences auditory hallucinations that he describes as derogatory and mean to him and is generally upset and distressed by his hallucinations, the down side of him not having ECT that could potentially prevent those experiences for him.
Dr LB’s evidence is that, if ECT is not available for JTR, his treatment would be higher doses of antipsychotic or combinations of antipsychotic medication, the side-effects of those two options outweighing the side-effects associated with ECT.
The bottom line on any choice between submitting and not submitting to ECT treatment appears to be a choice between the risks associated with ECT treatment and the risks associated with prolonged treatment with drugs, recognising that ECT treatment may routinely be associated with a drug regime.
Neither choice is risk free. To that extent, at least, JTR and KLH (on the one hand) and JTR’s treating team (on the other hand) may each imagine that they are personally confronted, not by a real choice, but an illusion of choice, with but one option in reality available to them (colloquially, a “Hobson’s choice”); but JTR’s ongoing treatment (whatever its course) needs constant, co-operative and empathetic review not unnecessarily confined to binary choices.
I defer to the medical opinions of JTR’s treating team and the specialist knowledge of the Tribunal in their clinical assessments. Where I may differ is that, in my opinion, an ECT administration inquiry requires, as a matter of law, an engagement with questions broader than the merely clinical, including the personal right of a patient (or perhaps somebody trusted by him or her, such as a family member or a significant other) to choose to refuse ECT treatment even if clinicians universally regard such a choice unwise.
In an exceptional case (however common it may be), the “right to choose” of an involuntary patient (recognised specifically in section 91(2)(f) of the Mental Health Act) may be overridden, but it cannot be passed over lightly, or subordinated to a bare clinical judgement by treating doctors about the utility of present treatments and the management of future risks measured against uncertain risks and benefits inherent in ECT treatment. If a “right to choose” is to be overridden there must be a clear finding (consistent with Marion’s Case, as elaborated in Re Eve) that that is in the best interests of the patient.
The common law has an entrenched concern for the protection of civil liberties in the provision of medical treatment. The norm is that a prerequisite for the medical treatment of an individual is a need for the individual’s consent to that treatment: Rogers v Whitaker (1992) 175 CLR 479 at 498. Forced medical treatment is exceptional; but, subject to procedural safeguards, permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 322D-323B, 332G-333F and 334B-335D; Z v Mental Health Review Tribunal [2015] NSWCA 373 at [35]; A (by his Tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [124]-[125]. Each case must be decided on its own facts and by reference to the governing law (in this case, the Mental Health Act, particularly Chapter 4, Part 2, Division 3): M v Mental Health Review Tribunal [2015] NSWSC 1876 at [69].
It is because of the intrusive effect of an order for forced medical treatment that Parliament has laid down conditions for the making of an order authorising the use of ECT to a statutory regime that distinguishes it from other forms of medical treatment.
In these proceedings the debate about whether ECT treatment should be authorised may have focused too narrowly upon the question of JTR’s capacity to make an informed decision about the treatment and not enough on the several elements of section 96(3)(b)(ii), specifically addressed. Reliance on the fact that JTR suffers a mental illness cannot deflect attention from those critically important considerations.
The concern that JTR’s “current pharmacological treatment” is not effective may not (in her view) have fully engaged with KLH’s strong advocacy for JTR to be “weaned from benzodiazepine medication whilst an in-patient” before further consideration is given to ECT treatment. KLH expresses concern that JTR has been prescribed diazepam for longer than is recommended and that rapid adjustments to his other medication have contributed to erratic behaviour.
In her evidence Dr LB met these concerns by saying that it would take too long to wean JTR from diazepam before administering ECT treatment; that she had frequently consulted KLH in her supervision of JTR’s medication; and that she proposed to adjust his medication shortly before any ECT treatment so as to minimise any ongoing effects of diazepam.
The Tribunal accepted that an adjustment of medication as proposed by Dr LB was an appropriate course. That acceptance carries weight in these proceedings.
There is something inherently experimental (or, perhaps more correctly, empirical) in the proposal that JTR be given ECT treatment. There can be no guarantee that a course of 12 ECT treatments approved by the Tribunal (or any lesser or greater number of treatments) will be successful or that further ECT treatments will not be sought. There is a strong element of “trial and error” in decision-making about ECT.
Whether or not any ECT treatment will be effective cannot be known except by empirical observations. Drs LB and SD draw comfort from a perception that because, it seems, ECT treatment is widely regarded as an effective treatment for “treatment resistant depression” it might also be effective as regards JTR’s “treatment resistant schizophrenia*”*. That view was also expressed by Dr TB when he gave oral evidence before the Court. The Ministry of Health’s Handbook counsels caution.
The application for authorisation of ECT treatment did not address KLH’s “human rights” concerns, but the Tribunal appropriately did, in paragraphs [75]-[76] of their reasons in support of its determination in favour of ECT treatment:

In all the circumstances of the case, in my assessment, it is in JTR’s best interests that he be required to submit to his treating team’s ECT treatment unless, upon an exercise of their professional judgement (and in consultation with JTR and KLH) they decide otherwise.
In coming to that conclusion, a factor I have taken into account is that JTR’s refusal to appear personally before the Court on each of the several occasions he was invited to do so is indicative of a form of rationality (or irrationality) that throws into doubt earlier views he has expressed about his treatment. By analogy with Jones v Dun**kel (1959) 101 CLR 298, his refusal to appear before the Court may support an inference that nothing he could say in support of his case, on the merits or otherwise of ECT treatment, could assist him to persuade the Court against approval of ECT treatment. With apologies to AP Herbert’s Uncommon Law (London, 1935, 1969 edition), and the fictional case of “Rex v Haddock”, JTR’s refusal to appear before the Court is like the 13th chime of the clock, not only wrong in itself but casting doubt on anything gone before.
Having considered the medical opinions and other information placed before the Court, I am satisfied that the ECT treatment the subject of the application of JTR’s mental health facility to the Tribunal satisfies the test(s) of a reasonable and proper treatment … desirable (if not necessary) for the safety or welfare of JTR.
In my opinion the ECT treatment programme the subject of the application must be taken to be clinically sound, appropriate to the current circumstances of JTR and within the bounds of prudent judgement.
It is reasonable when measured against what a sensible, prudent person would do in the same factual context as JTR finds himself, taking into account his subjective views of ECT but applying a standard of objectivity, practicability and proportionality. The proposed ECT treatment is proper, as well as reasonable, when viewed by a standard of ethical and professional care in the service of the objects of the Mental Health Act (listed in section 3) and the principles for care and treatment listed in section 68 of the Act, taking into account the views of KLH as well as the subjective views of JTR.
Accepting the medical opinions and evidence proffered by JTR’s Mental Health Unit (particularly the evidence of Dr LB) I accept that the ECT treatment proposed by the mental health facility is desirable (if not necessary) for service of the safety and welfare of JTR, recognising the potential for ECT to address daily trauma experienced by JTR in the absence of ECT and the long-term risks associated with other forms of treatment of his schizophrenia. It is not necessary that I formally find that the treatment is “necessary” (imperative). It is enough that it be found “desirable” (likely to be beneficial to JTR)”. In the absence of any experience of JTR with ECT treatment and risks associated with ECT, I refrain from characterising it as “necessary”, as distinct from “desirable”, accepting that in circumstances other than the present both elements of “necessary or desirable” might be engaged. I do not intend to convey an idea that ECT is not “necessary” for JTR just that it is not necessary to express a view on the nature or extent of any “necessity” in the current circumstances and, so, it is prudent not to do so.
I am satisfied that, upon the materials presented to me, JTR’s mental health facility is justified in proceeding on the basis (subject to ongoing review by the his treating doctors in consultation with JTR and KLH) that the potential benefits of ECT treatment outweigh the known risks of such treatment and that it is in JTR’s best interests that the present, proposed regime of ECT treatment be approved.

KLH v Northern NSW Local Health District

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

INTRODUCTION

PROCEDURAL HISTORY

“REASONS FOR DECISION …

CONSTRUCTION OF THE STATUTORY SCHEME FOR ECT TREATMENT

THE NATURE OF AN APPEAL FROM THE MENTAL HEALTH REVIEW TRIBUNAL

STANDING REQUIRED OF AN APPELLANT

THE REAL ISSUES IN THE APPEAL

ELECTRO CONVULSIVE THERAPY (ECT)

A Right to Choose?

Defining ECT

OBJECTS, PRINCIPLES AND OBJECTIVES

REQUIREMENTS FOR INVOLUNTARY ADMISSION, DETENTION AND TREATMENT IN A MENTAL HEALTH FACILITY

REGULATORY SCHEME FOR ECT

Proscriptions and Prescriptions

An Application for an ECT Administration Inquiry must be supported by Medical Certificates

A Central Qualitative Requirement for an ECT Determination: Reasonable and Proper Treatment AND Necessary and Desirable for Safety or Welfare of Patient

(Informed) Consent to Administration of ECT

The Form and Operation of an ECT Determination

Rights of Appearance at an ECT Inquiry

STATUTORY TESTS OF “REASONABLE AND PROPER TREATMENT”/“NECESSARY OR DESIRABLE”: MENTAL HEALTH ACT, SECTIONS 94(3) AND 96(3)(b)(ii)

Reasonable and Proper Treatment

Necessary or Desirable

ENGAGEMENT WITH, AND REPRESENTATION OF, JTR

CONSIDERATION

The First Limb of Section 96(3)(b)

The Second Limb of Section 96(3)(b)

CONCLUSION

Addendum (2 June 2026)

Endnotes

Parties

Legislation Cited (8)

Cases Cited (39)