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PBU had been an inpatient at the Northern Hospital since December 2016 and had been diagnosed with treatment-resistant schizophrenia. The Mental Health Tribunal (MHT) made an inpatient treatment order on 14 March 2017, then ordered up to 12 ECT treatments on 19 April 2017. VCAT stayed that ECT order on 21 April, meaning none of the proposed treatments had been given by the substantive hearing.

The treating psychiatrists, Drs A and B, considered ECT the only appropriate treatment then available. They said PBU was not improving on his current medication and was slowly deteriorating. Clozapine had been discussed as an alternative, but PBU would not take it. Their evidence was that ECT might help PBU become sufficiently well to engage in treatment and progress towards leaving hospital.

PBU disputed that he had schizophrenia and did not want ECT or other antipsychotic treatment. He preferred treatment for depression, anxiety and post-traumatic stress disorder, and wanted discharge to a Prevention and Recovery Centre (PARC). He also described wanting meaningful assessment and psychological treatment. The Tribunal recorded his views and gave weight to his opposition, while deciding the statutory criteria on the evidence before it.

The decision affirmed the MHT's order for up to 12 treatments, to be completed by 9 August 2017, and set aside the stay. It is a decision about the statutory criteria and evidence in this particular review, not a general determination that ECT is appropriate whenever a person disputes a diagnosis or refuses treatment.

Why the court decided this way

The Tribunal addressed two express conditions for an ECT order: whether PBU lacked capacity to give informed consent to the course, and whether there was no less restrictive way for him to be treated. Those criteria appear in ss 93 and 96 of the MH Act as described in the reasons.

First, the Tribunal considered capacity. Section 70 creates a presumption that a person has capacity to give informed consent. Sections 68 and 69 address the capacity assessment and informed consent requirements, including adequate information and a reasonable opportunity to decide. The Tribunal accepted that PBU had been informed about ECT and understood it in general terms. His letter showed awareness of its purpose, broad operation and possible disadvantages.

The critical finding was not that PBU knew nothing about ECT. It was that he could not assess ECT's possible benefit for himself because he did not accept the schizophrenia diagnosis for which the treatment was proposed. The Tribunal noted that even when PBU had described some benefits from the February 2017 treatments, he related them to depression, a condition for which he had not been diagnosed. On that basis, it found he lacked capacity to give informed consent to this ECT course at the hearing date.

Second, the Tribunal assessed less restrictive treatment. It considered the options raised in the evidence: ECT, clozapine, continuing the existing treatment, and discharge to a PARC with continuing treatment in the community. PBU's preference was relevant, and the Tribunal expressly said it gave weight to his consistently stated opposition to ECT. It also accepted that he might have lost faith in a treating team that was focused on a treatment he rejected.

The Tribunal nevertheless found that the alternatives were not viable or beneficial in the circumstances. It found treatment for depression was not an appropriate alternative given the diagnosis it accepted. Clozapine was not available in practice because PBU would not agree to take it and the treating team could not force him to participate in the necessary testing. Discharge to a PARC was not viable because the Tribunal accepted that PBU was not then able to engage meaningfully with hospital staff on discharge planning or work effectively with PARC staff.

The remaining possibility was continuing the current medication and attempts to engage PBU. The Tribunal considered the fact that his presentation had appeared relatively stable over part of the period. It accepted the psychiatrists' evidence, however, that he remained very unwell and was slowly deteriorating. It also considered his ongoing isolation, disengagement, apparent responses to internal stimuli and the limited beneficial effect of the current treatment. The earlier February course was relevant: the Tribunal accepted evidence that PBU had shown a marked improvement and greater insight during that period, although he had reported short-term memory problems.

A significant statutory interpretation point was whether the Tribunal also had to find that ECT itself was immediately required to prevent serious deterioration or harm, drawing on s 5(b). The Tribunal declined to imply that as a separate third criterion. It reasoned that the ECT provisions carefully specified their criteria and did not cross-reference s 5(b). Instead, the wider treatment context, including the MH Act's purpose, principles and requirement to consider less restrictive options, informed application of the express test. The Tribunal added that if immediate necessity were required, it would be satisfied on the evidence.

Before and after state of the law

The decision did not purport to amend the statutory test. It explained how the Senior Member read the provisions before her: the ECT test was the express test in ss 93 and 96, applied in the context of the MH Act as a whole. The Tribunal rejected PBU's argument that the decision-maker had to re-establish, as an additional ECT criterion, the immediate-treatment threshold in s 5(b).

That interpretation did not make the broader purposes of the MH Act irrelevant. The reasons refer to the Act's objectives of least restrictive treatment, support for participation in decisions, oversight and safeguards, and recovery. The Tribunal also referred to the principle that services should aim for the best possible therapeutic outcomes and that people's views, rights, dignity and autonomy should be respected. Its approach was therefore not simply to compare ECT with any treatment that could maintain the status quo. It considered whether the alternatives would be beneficial in the statutory sense and whether they were realistically available for PBU.

The reasons discuss treatment as defined in s 6, which includes ECT and treatment intended to remedy mental illness or alleviate symptoms and reduce ill effects. They also refer to s 72, which requires a patient to be given treatment in accordance with the Act. The Tribunal reasoned that maintaining a person without improvement might not be sufficient if it was not part of a plan likely to lead to improvement in a reasonable time. That analysis informed its finding that indefinite continuation of the existing approach was not a suitable less restrictive alternative in this case.

For the evidentiary standard, the Tribunal accepted that it had to be actually persuaded of facts in issue, taking into account the seriousness of the matter and gravity of the consequences, by reference to Briginshaw v Briginshaw. It also considered Charter rights affected by an ECT order, including freedom from medical treatment without full, free and informed consent, freedom of movement and privacy. It concluded that the limits were justified under s 7(2), referring to Kracke.

The supplied judgment does not establish a later change in the law. Its reasoning is a VCAT decision applying Victorian legislation and the Charter to the evidence in PBU's review. Any account of subsequent statutory amendments or later judicial treatment would require sources beyond the judgment provided.

Key passages with plain-English translation

The Tribunal said: “The correct approach is to apply the express criteria as they stand but understood within the context of the MH Act.” In plain English, it did not add an extra ECT condition that Parliament had not included in the ECT provisions. It did, however, interpret and apply those conditions with the rest of the Act in mind, including its emphasis on least restriction and recovery.

On capacity, the key finding was that PBU “did not have the capacity to give informed consent to the performance of a course of ECT on himself.” This followed the distinction between understanding information about a treatment generally and being able to assess its application to oneself. The Tribunal accepted the former but found the latter was absent because PBU rejected the diagnosis the proposed ECT was intended to treat.

On alternatives, the Tribunal said continuing the existing approach could “amount to a failure to provide the treatment the MH Act requires.” This was not a finding that every period of stable symptoms requires a different treatment. The reasoning was tied to its findings that PBU remained very unwell, was not improving on the current treatment, and faced an indefinite admission without meaningful progress if the status quo continued.

The Tribunal also said the less-restrictive-treatment criterion was met “as at the hearing date.” That qualification matters. The decision assessed PBU's circumstances on 23 May 2017, using his recent history and the evidence available then. It did not decide that an ECT order would necessarily be justified at a later date or for another patient.

What fact patterns trigger this precedent

The decision is most directly relevant where a Victorian ECT application raises the same statutory questions: whether the person lacks capacity to give informed consent to the proposed course, and whether a less restrictive way of treatment is reasonably available. It illustrates that a capacity assessment may distinguish between understanding the general nature and effects of ECT and being able to evaluate its possible benefit in relation to the condition the clinicians say it would treat.

It is also relevant where the patient opposes ECT and identifies alternatives. The reasons demonstrate that patient preferences are part of the analysis, not a substitute for it. The Tribunal considered the patient's preferred diagnosis and treatment, the feasibility of clozapine, discharge planning and ongoing treatment. In PBU's case, the alternatives did not meet the Tribunal's assessment of available beneficial treatment because of the diagnosis it accepted, PBU's refusal of clozapine, the required testing, and the evidence about his ability to participate in discharge planning.

The case may be raised where the patient appears stable on current treatment but medical evidence says the person remains very unwell or is deteriorating. PBU argued that the absence of obvious change over recent weeks supported continuing treatment. The Tribunal weighed that position against treating evidence, chronological clinical notes, the earlier response to ECT and the consequences of continuing without progress.

The ruling should not be treated as a general trigger for ECT. The decision turned on its statutory reading and evidence about PBU, including the clinical assessments, his treatment history, the prior ECT course and the alternatives considered. A lawyer assessing a different matter would likely want to check the current legislation, the quality and currency of capacity evidence, the person's own views, available alternatives, and whether those alternatives are genuinely beneficial and practicable.

How later courts have treated it

The material supplied includes no later judgments discussing or applying PBU. It is therefore not possible, from this source alone, to state how later courts or tribunals have treated the decision, whether they have followed or limited it, or whether the statutory framework has since changed.

The authorities identified in the reasons are earlier decisions, not later treatment of PBU. The Tribunal distinguished the MHT decisions in GLX and NLK on the evidence. It considered that those matters involved different circumstances concerning stabilisation, prospects of deterioration, or further time for discussion. It also distinguished CTN because, unlike the patient in that MHT matter, PBU would not agree to clozapine.

The Tribunal cited EWL in discussing the significance of the capacity provisions, Briginshaw on the degree of satisfaction required for serious findings, and Kracke in relation to Charter rights and limitations. Those references explain the reasoning adopted in PBU; they do not supply evidence about how subsequent decision-makers treated PBU itself.

Still-open questions

The judgment leaves questions that cannot be answered from its text alone. One is how the capacity reasoning would apply where a person disputes a diagnosis but can still explain and weigh the proposed treatment's possible benefits and disadvantages in relation to their own circumstances. The decision records the finding in PBU's particular case; it does not provide a complete test for every form of disagreement with diagnosis.

Another is how the less-restrictive-treatment analysis applies where current treatment maintains stability but does not produce improvement. The Tribunal's observation about treatment that fails to lead towards improvement was linked to the statutory definition and PBU's circumstances. The judgment does not establish a numerical timeframe for what counts as a reasonable time or specify when maintenance treatment ceases to be a suitable alternative.

The reasons also demonstrate the importance of evidence about actual alternatives. For another patient, the availability of community supports, willingness to take medication, ability to participate in a treatment plan, prior response to ECT and the consequences of withholding it could differ. The judgment does not determine how those issues should be resolved on different evidence.

There is an internal date discrepancy in the supplied text: in the less-restrictive-treatment findings, the Tribunal refers to the MHT decision in “mid-March 2014”, although the rest of the reasons identify the relevant MHT hearing and treatment order as occurring in March 2017. The supplied material does not explain the discrepancy. It should not be silently relied on as a factual correction without checking the authoritative judgment.

Finally, later treatment of the decision, and any later legislative amendments, remain outside the provided source. 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.