MENTAL HEALTH COURT

CITATION: In the matter of ICO [2023] QMHC 1

PROCEEDING: Appeal
FILE NO: MHC No. 0031 of 2023
DELIVERED ON: 10 May 2023
DELIVERED AT: Brisbane
JUDGE: Wilson J
ASSISTING Dr J Sundin
PSYCHIATRISTS:
Dr F Iqbal
DETERMINATION:
1. The appeal is allowed.

2. The Mental Health Review Tribunal’s decision dated

15 February 2023 to approve 12 treatments of
electroconvulsive therapy (ECT) over a period of 60
days, which was to commence on the 15 February
2023, is set aside and substituted with the decision
that the application for ECT is refused.

CATCHWORDS: HEALTH LAW – MENTAL HEATLH GENERALLY –

GENERAL LAW AFFECTING PERSONS WITH
MENTAL ILLNESS OR IMPAIRED CAPACITY –
where the Mental Health Review Tribunal approved that
the appellant have 12 treatments of electroconvulsive
therapy over a period of 60 days – where the appellant
appealed this decision of the Mental Health Review
Tribunal – where a stay was granted until the full appeal
could be heard – where section 509 of the Mental Health
Court Act 2016 (Qld) is considered – whether the appellant
has capacity to give informed consent

Attorney-General for the State of Queensland v GLH

[2021] QMHC 4, cited
Adamson v Enever & Anor [2021] QSC 221, cited
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141
R v Cooper [2009] 1 WLR 1786, cited
TSC v Department of Health and Wellbeing [2021]
SASCA 93
YLY v Mental Health Tribunal (Human Rights) [2019]
VCAT 1383
 2

Charter of Human Rights and Responsibilities Act 2006

(Vic)
Guardianship and Administration Act 2000 (Qld)
Health and Other Legislation Amendment Bill 2021 (Qld)
Health and Other Legislation Amendment Act 2022 (Qld)
Human Rights Act 2019 (Qld), s 13, s 15, s 25, s 29, s 30, s
37, cited
Mental Health Act 2016 (Qld), s 3, s 5, s 7, s 9, s 14, s 18, s
232, s 233, s 234, s 421, s 509, s 539, s 544, s 546, s 639, s
685, cited
Mental Health Act 2014 (Vic),s 68, cited
Mental Health Act 2009 (SA), s 5A, cited
Public Health Act 2005 (Qld), Chapter 4A, cited

Explanatory notes to the Health and Other Legislation

Amendment Bill 2021

COUNSEL: G E Devereaux for the appellant

S J Hamlyn-Harris for the Chief Psychiatrist

SOLICITORS: Legal Aid Queensland for the appellant

Office of the Chief Psychiatrist

NOTE: This judgment is published pursuant to section 790 of the Mental Health
Act 2016 (Qld). It has been anonymised. Leave is given generally for the whole part
or part of the judgment in this anonymised form to be further published.

[1] On 15 February 2023, the Mental Health Review Tribunal (the tribunal) approved
that the appellant have 12 treatments of electroconvulsive therapy (ECT) over a
period of 60 days, which was to commence on 15 February 2023.

[2] On 1 March 2023, the appellant filed a notice of appeal in relation to this decision
with her grounds of appeal being:

“I do not feel like I need ECT, nor do I want it. I feel it is draconian
and I am concerned about the memory and cognition problems
associated with the treatment. I want another opinion.”

[3] The appellant also applied for a stay of the tribunal’s decision on the basis of:

“I am worried if I have the treatment prior to the appeal hearing I will

be impaired … the side effects and not able to participate fully.”
 2

[4] Pursuant to section 544 (1) of the Mental Health Act 2016 (Qld) (the Act), the Mental
Health Court may stay the decision of the tribunal appealed against to secure the
effectiveness of the appeal.

[5] I heard the stay application on 7 March 2023 and Dr Harden, who was assisting me,
advised that there was no clinical risk to the appellant if ECT was stayed until the
appeal could be determined. I granted the stay.

[6] The substantive appeal was then listed for 29 March 2023. However, on that date the
appellant’s legal representatives applied for an adjournment to get an independent
second opinion. Dr McVie and Dr Sundin advised me that there was no clinical risk
to the appellant if the adjournment was granted.

[7] Accordingly, I granted the adjournment and ordered an independent psychiatrist to

provide an additional report. Thus, Dr Scott assessed the appellant on 6 April 2023
and provided a report having regard to sections 233 and 509 of the Act.

[8] This appeal raises two issues:

(a) Whether the appellant can give informed consent in relation to ECT; and

(b) Whether ECT is appropriate in the circumstances.

[9] The appellant submits that:

(a) Evidence demonstrates that the appellant has capacity to provide informed
consent pursuant to section 233 of the Act; and

(b) Alternatively, ECT is not appropriate in the circumstances (as required by

section 509 (4) (a) of the Act) because there remains an alternative to ECT
that should be explored, being another trial of clozapine.

[10] The appeal was heard on 28 April 2023 where I was assisted by Dr Sundin and Dr
Iqbal. At the hearing Dr Scott gave evidence and the legal representatives for the
appellant and the Office of the Chief Psychiatrist both provided oral submissions
which complimented their written submissions.

[11] The stay of the tribunal’s decision was extended until my judgment in this matter.

Appeals from the tribunal to the Mental Health Court

 3

[12] The appeal to the Mental Health Court is brought under section 539 of the Act.1

[13] Under section 546 (2), the appeal is by way of rehearing, which means that the Mental
Health Court is to hear the matter afresh on all the evidence (including any updated
material provided since the tribunal’s decision) before the Court. It is not necessary
for the appellant to show error on the part of the tribunal.

[14] In deciding the appeal, the Mental Health Court may:

(a) confirm the decision appealed against; or

(b) set aside the decision appealed against and substitute another decision; or

(c) set aside the decision and return the matter to the tribunal with the directions
the Court considers appropriate.2

[15] Section 639 (2) of the Act provides that, in exercising its jurisdiction, the Court must
inquire into the matter before it and may inform itself in relation to a matter before it
in any way it considers appropriate.

The appellant’s mental health history

[16] From 24 March 2022, the appellant was managed by a New South Wales mental
health service and was medicated with depot zuclopenthixol 200 mgs fortnightly and
depot olanzapine 405 mgs monthly. On 20 April 2022, when the appellant was
discharged from the service, the discharge summary documented:

“… 37-year-old woman with longstanding treatment resistive

schizoaffective disorder currently relocated to emergency
accommodation in [New South Wales] after being asked to leave her
parents holiday house where they were all residing together after
evacuation from their separate homes during the recent floods.
… managed by a CTO [community treatment order] that expires 2nd
May 2022.
She has a history of undiagnosed eating disorders and poor compliance
with orals [medications] … she can become unwell even when
compliance is monitored. She has a history of multiple admissions due
to relapse in the context of medication non-compliance and stressors
in the community.

1
Read with Schedule 2 of the Mental Health Act 2016 (Qld).
2
Section 546 (3) of the Mental Health Act 2016 (Qld).
 4

When unwell symptoms include poor self-care, malnourishment,

obvious responding to internal dialogue, misinterpreting interactions,
rude, argumentative, irritable, dismissive, threatening, refusal to
engage with MH, suspicion and guardedness, paranoid and delusions
including diabetes and Aboriginality and increased sexual related
themes including public nakedness and accusations of paedophilia and
sexual abuse/inappropriateness by her father. She has been known to
send 100+ inappropriate and abusive text messages to family and case
managers. She reports to get cathartic release from sending text
messages and regards it as a form of therapy.
… presentations are highly interchangeable from one fortnight to the
next, ranging from pleasant and engaging to delusional, rude and
abusive.
… limited insight into her mental illness and does not share treating
teams opinion that a CTO is required or necessary.
… vague and evasive when describing her symptoms when she is
unwell …”

[17] The appellant relocated from New South Wales to regional Queensland in search of
cheaper housing. A Queensland mental health service attempted to contact the
appellant in April 2022 following her arrival in Queensland. However, at the time the
appellant refused to engage with this service and declined further contact. The referral
was subsequently closed.

[18] On 8 September 2022 the police brought the appellant into hospital under an
Emergency Examination Authority3 after she was found walking the streets in the
rain naked, thought disordered and refusing to engage with services.

[19] The appellant was uncooperative in the emergency department with an escalation of
her behaviour, and she attempted to leave hospital. An intramuscular tranquillizer was
administered, and she was transferred to the High Dependency Unit.

[20] The appellant was placed under a treatment authority. Section 18 of the Act explains
the circumstances of when a person can be placed under a treatment authority:

“18 Treatment authorities

(1) A treatment authority is a lawful authority to provide treatment
and care to a person who has a mental illness who does not
have capacity to consent to be treated.
(2) A treatment authority may be made for a person if an
authorised doctor considers the treatment criteria apply to the
3
Pursuant to Chapter 4A of the Public Health Act 2005 (Qld).
 5

person and there is no less restrictive way for the person to

receive treatment and care for the person’s mental illness,
including, for example, under an advance health directive.
(3) Key elements of the treatment criteria are that the person does
not have capacity to consent to be treated and there is a risk of
imminent serious harm to the person or others.
(4) The category of a treatment authority is—
(a) community, if the person’s treatment and care needs
can be met in the community; or
(b) inpatient, if the person’s treatment and care needs can
be met only by being an inpatient.
(5) If the category of a person’s treatment authority is inpatient,
the person may receive limited community treatment, for a
period of not more than 7 consecutive days, if authorised under
this Act.”

[21] On 8 November 2022, Dr G provided a second opinion to the treating team regarding
medication optimisation. In this report it was noted that:

“On review today, she was hostile, disengaging, angry, and quite
paranoid. She exhibited paranoid delusions that we are illegal and
should not be in this country. her thoughts showed some of loosening
of association; her affect was hostile, angry; oriented; poor insight and
judgement.”

[22] Dr G’s report sets out the appellant has treatment refractory psychotic and mood
symptoms and that the following medication options were discussed with the treating
team:

“…
2. EPSE was discussed and could contribute to agitation and hostility
3. Clozapine Re challenge was considered but was not appropriate at
this stage
4. Optimisation of lithium dose to 500mg BD with repeat lithium
levels
5. Optimisation of olanzapine with additional of oral dose 5mg BD
6. Consider to increase Zuclopenthixol to 300mg F/N if no
improvement
7. Consider Augmentation with ECT if symptoms persist”

[23] Dr A made an application for ECT to the tribunal on 3 February 2023 and provided a
clinical report which set out the appellant’s treatment and response to medication.
 6

[24] It was noted that clozapine treatment, which is recommended for treatment resistant
schizophrenia, had been trialled in the past but was discontinued due to severe
leucopenia. Dr A stated that ECT would be the alternative evidence-based treatment
option for the appellant.

[25] Dr A referred to a meeting with the appellant’s family which confirmed the
appellant’s long standing mental health history, noting that:

(a) since her first presentation at around age nineteen, the appellant has had
episodic attacks requiring hospital admissions at times;
(b) her overall functioning over the years have been gradually declining;
(c) the appellant has been having more frequent unwell episodes, with increasing
severity;
(d) the appellant probably has never been completely well in last two to three
years; and
(e) ECT was proposed as potential treatment option in New South Wales some
years ago but did not eventuate.

[26] The family agreed that ECT should be considered as part of the appellant’s treatment
options and was supportive of her continuing care in a tertiary facility.

[27] Dr A’s clinical assessment at the time of the ECT application was that despite being
in a structured and supportive environment, on two depot antipsychotics and mood
stabiliser with good serum level, the appellant’s mental state continued to fluctuate
with positive symptoms regularly observed. Her self-care, social interaction and
engagement with treating team remain poor.

[28] At the time of the ECT application, the appellant had been stepped down from the
High Dependency Unit to another ward. A referral to a tertiary facility was made and
declined in January 2023. There was concern that the appellant could not be managed
in an open ward with her current level of psychosis.

[29] Dr G provided a second opinion in relation to ECT for the appellant on 10 February
2023. He stated that since his previous opinion on 8 November 2022 the appellant’s
mental state had not changed or improved.

[30] When Dr G reviewed the appellant, he found her lying on her bed, refusing to talk,
showing paranoid themes and formal thought disorder, with no insight.
 7

[31] Dr G’s impression was that:

“[The appellant] has treatment resistant psychotic illness. ECT is a

good treatment to augment the effects of medications. I support the
team plan for ECT. My opinion has not changed from previous
assessment.”

[32] The application for ECT was allowed by the tribunal on 15 February 2022.

[33] Dr C provided an updated report dated 6 March 2023 which stated:

“[The appellant] has been admitted to MHU [X] hospital since

October 2022. [The appellant] is being treated involuntarily under the
MHA.
[The appellant] has been psychotic and disorganised during her
admission in the ward.
[The appellant] has had a long history of mental health concerns
starting from around 19 years of age.
[The appellant] has had several admissions in the past while living
interstate. There hasn’t been any period of time when [the appellant]
has responded adequately, to the treatments provided. This has been
confirmed following a discussion with her mother and sister.
[The appellant] is currently on 2 antipsychotics and Lithium.
[The appellant] hasn’t shown any response to this regime. Second
opinion had been sought which recommended medication changes and
if not responding ECT.
[The appellant] has had adverse reaction to Clozapine (Leucopenia)
when trialled previously.
[The appellant] has had significant risks in the past due to her
psychosis and disorganisation.
[The appellant] is not fit enough to be managed in a support
independent living arrangement or other forms of accommodation,
outside of the MHU.
Under these circumstances the ECT is being considered as a last
treatment option which hasn’t been trialled before. The family doesn’t
report any ECT treatments in the past.
The MHRT application for ECT was approved but on the day of the
first treatment, [the appellant] stated to the ECT team that she is
“appealing” the decision by MHRT.
The ECT team discussed this with the treating consultant and the
treating consultant (Dr C) decided to put a hold on the ECT till the
appeal process is completed.
[The appellant] is deemed to have low risk while in the inpatient unit.
 8

[The appellant] has been able to make a formal appeal.

[The appellant] continues to be psychotic and disorganised.
[The appellant] hasn’t received any ECT since then as the treating
team doesn’t consider the ECT to be an urgent intervention. But
considering the non-response to pharmacological treatment options,
the treating team continues to recommend a trial of ECT.”

[34] Dr C provided another report on 27 March 2023. He stated the appellant’s mental
state on 23 March 2023 was:

“Wearing dress, not unkempt

Appeared alert and oriented, detailed cognitive assessment not
attempted
Mood elevated, easily agitated
Guarded initially then becoming agitated when discussing ECT
Pressure of speech when discussing her appeal
Thought disordered
No AH
No insight”

[35] Dr Scott then provided an independent report dated 14 April 2023. During Dr Scott’s
assessment with the appellant on 6 April 2023, she reported that in January 2006, she
was first diagnosed with what she described as “textbook paranoid schizophrenia”
and subsequently between 2006 to 2012, she had three inpatient admissions.

[36] When the appellant was asked to describe the features of her schizophrenia, she stated
that: “paranoia, feeling like there were cameras everywhere, watching me”.

[37] When the appellant was asked to further describe the features of her schizophrenia,
the appellant stated: “… putting myself out there, having interpersonal problems, not
getting enough sleep, poor concentration …”

[38] The appellant told Dr Scott that she had become estranged from her parents:

“I needed to get away from them. I’m not sure they are my real
parents. I’d like to access my government records and find out the truth
… as a kid I lost weight. I was only 43 kgs. My mother was a nurse
and she put baby oil on my face and cleaned me with methylate spirits,
why would she do that ? … my father … is a paedophile … on 24
October 2005, he molested me, he touched my left breast. He used to
get close to my older sister too … I’m not lying. I never lie. When I
 9

told my mother what my father had done, she just said ‘Well at least
he didn’t rape you …’ My mother might have been from the ‘stolen
generation.’ I think my ancestry is Irish-Aboriginal. In 2015, it came
to me, I realised that [MM] was actually my real father. He raised me.
He was Irish, he had been recruited when he was only aged four as a
sniper in World War II. He was the first soldier to shoot Hitler …”

[39] The appellant told Dr Scott that after she left New South Wales, she stopped taking
her prescribed oral olanzapine and that:

“I think I did well off the medication. I had more energy and I was
thinking clearly. I also understood that my mother had Munchausen
by proxy…”4

[40] The appellant explained:

“I had a ‘sugar fit’ when I was anorexic. My mother told the

psychiatrist I had an epileptic fit. The psychiatrist put me on anti-
epilepsy medication which I didn’t need to be on ...”

[41] In relation to the incident which predicated her admission into hospital in
September 2022, the appellant told Dr Scott that she had been living in a cabin in the
caravan park when she was disturbed by the snoring of the woman living next door:

“I wasn’t getting enough sleep. Her snoring was so loud. It reminded

me of my mother. One night I had had enough and came out and
banged on her door. I wasn’t wearing any clothes at the time and I
accidentally locked myself out. After I didn’t get any response, I just
walked off. It was raining but I didn’t care. I was walking in the street
naked and the police picked me up and took me to the hospital. I was
provoked and angry because no one would listen to me. Then there
was a teleconference and I was taken from [X] to the [X] Hospital …”

[42] The appellant told Dr Scott that she would prefer to cease all medication:

“I think I’d do well off all medication. I’d like to have psychotherapy
or psychoanalysis instead of taking medications which all have side
effects …”

[43] When the appellant was asked whether any therapies had been shown to be effective
as “stand-alone” treatment for schizophrenia, the appellant referred to a book entitled
Psychotherapy of Schizophrenia: The Treatment of Choice (which was written by
Bertram Karon and Gary van den Bos and first published in 1977).

4
Dr Scott explains that Munchausen by proxy is a factitious disorder imposed on another when
someone, usually a parent or carer, falsely claims that another person, usually a child, has physical or
psychological signs or symptoms of illness, or causes injury or disease in another person with the
intention of deceiving others and to procure unnecessary investigations or medical procedures.
 10

[44] Dr Scott set out the results of his mental examination of the appellant in his report:

“During the assessment on 6 April 2023, [the appellant] presented as

a slim woman with a pale complexion who looked younger than her
chronological age. She had long dark hair tied back. She was casually
dressed and wore no make-up. Her self-care was good. [The appellant]
was alert and orientated. She was pensive and maintained good eye
contact and manifested a mostly serious expression. She demonstrated
no abnormal movements. She was not hypervigilant, agitated or
guarded and a shallow rapport was able to be established. She was an
entirely co-operative historian.
[The appellant’s] soft speech was of normal volume and form and was
not pressured. Her vocabulary was sophisticated and she gave the
impression of above average intelligence. [The appellant] denied
feeling anxious, angry or depressed and self-rated her mood “7 out of
10” (10 being the best). Her affect was only mildly dysphoric,
appropriate to her thought content and normally reactive.
[The appellant] demonstrated no clear disorder of thought form (the
connectedness of her thoughts) during the assessment. Her thought
content consisted of paranoid and grandiose themes (as described
above) and her comments about her parents particularly her father
were likely to be delusional. [The appellant] may have been self-
censoring her account for the purposes of the court-ordered
assessment. [The appellant] denied any violent or intentional self-
injury ideation. She specifically denied any abnormal percepts or
passivity phenomena and she did not appear pre-occupied or distracted
during the assessment.
At the time of the assessment on 6 April 2023, [the appellant’s]
judgement was chronically impaired. She demonstrated no insight into
her chronic mental illness or her need for treatment.”

[45] Dr Scott stated that having regard to the appellant’s longitudinal history, recent
inpatient assessments and the findings of his mental state examination on
6 April 2023, the appellant has chronic paranoid schizophrenia. In Dr Scott’s
opinion, it is less likely that she has schizo-affective disorder. Her chronic psychotic
disorder is marked by an irritable mood and paranoid and grandiose delusions.

[46] At the hearing Dr Scott gave evidence consistent with his report and stated:

(a) At the time of his assessment on 6 April 2023, the appellant’s agitation and
her arousal, her psychomotor activity, was certainly better than many of the
assessments documented.

(b) Dr Scott noted that the appellant presented better than she had previously to
others, until he inquired about her thought content.
 11

(c) The appellant’s thought content, which is the most important aspect of her
mental state examination, was fairly consistent with someone who was
psychotic.

(d) The appellant’s judgment is acutely impaired. She cannot make rational and
self-serving decisions and is likely to come to harm, be homeless and be in a
very vulnerable situation.

(e) Presently the appellant is not well enough to leave the hospital. The appellant
was certainly not well enough to be discharged into the community. The
appellant is not even allowed to have escorted leave within the hospital
grounds and is locked inside the Mental Health Unit.

(f) Dr Scott agrees that there has been a clear deterioration in the appellant’s
mental health in the last two years. There has been an overall functional
gradual decline with more frequent and more severe symptoms over a two-
year period where she has never had a full remission.

[47] Dr Scott explained at the hearing that schizophrenia is a chronic relapsing illness. Dr
Scott further explained that the more a person experiences periods of untreated
psychosis or sub-optimally treated psychosis will result in more cognitive and
functional decline.

[48] Further Dr Scott explained that where a patient, who has long periods of untreated
psychosis, becomes immured and more or less habituated to that lower functioning,
then their ability to imagine an improved mental state is diminished.

[49] Dr Scott stated that treatments, like ECT, can try and avoid such deterioration for
patients.

The appellant’s views, wishes and preferences

[50] I have taken the appellant’s views, wishes and preferences into account.

[51] The appellant has been consistently clear that she does not want ECT.

[52] Dr A’s clinical report dated 3 February 2023 states that the appellant does not wish
to have ECT:
 12

“She believes she is “fine in the head” and is suitable for discharge,
although she was observed to be actively responding to unseen stimuli
on the ward and seemed guarded.
Multiple attempts were made by treating team on “better days” to
discuss treatment
[The appellant] maintained that she does not wish to have ECT.”

[53] The tribunal set out the appellant’s view, wishes and preferences and stated that:

“The patient was very clear in her self-report to the Tribunal that she
acknowledged she has a mental illness but that she wanted a second
opinion. The tenor of the self-report was that she opposed treatment
with ECT. Throughout the course of the hearing, she interrupted
frequently noting to have pressured and rapid speech and was
tangential. She had difficulty following direction and generally was
highly elevated. She tried to explain how she was Munchausen by
proxy and had early onset Alzheimer’s. She opposed to ECT saying “I
already have Alzheimer’s and could be problem for me”. Again, in the
course of the hearing, the patient stated on a number of occasions that
she was the golden-girl, was highly intelligent and did not use drugs
or alcohol. She persisted with her opposition to an approval.
In a discussion regarding an Advanced Health Directive there was no
evidence that the patient had an Advanced Health Directive and the
patient mentioned that if she did, she wanted it revoked. She was not
sure whether she had one but does not want her family involved.”

[54] The appellant reiterated her strong opposition to having ECT to Dr Scott. She is
concerned that the ECT would affect her memory and cognition:

“I think ECT is draconian. I don’t want to have that done to my brain.

I look at people here who’ve had it and they look vacant, catatonic …
I’ve noticed that a lot of patients here in this mental health unit get
ECT which concerns me. I think there is an over-representation of
psychiatrists who order ECT for patients here. I’m highly intelligent.
[The appellant referred to her academic achievement] …”

[55] Dr Scott explained to the appellant that there is considerable research showing that
ECT treatment for her particular mental illness was effective and that long-term side
effects like memory loss were usually not significant. However, the appellant
reiterated that she would not consider having ECT.

[56] At the hearing, Dr Scott confirmed that the appellant told him that she had not been
provided a good explanation of ECT by her treating team. However, he noted that this
was not consistent with the clinical notes which suggest that, on a number of
 13

occasions, her treating team have discussed ECT with the appellant and tried to
reassure her about the likelihood of complications of ECT.

What is required before ECT can be performed?

[57] ECT is a regulated treatment that can be effective for some types of mental illness,
including severe depressive illness. It involves the application of a minimal electric
current to specific areas of a patient’s head to produce changes in the brain’s electrical
activity.5

[58] As ECT is a regulated treatment under the Act6 sections 235 to 237 define the
circumstances in which it can be performed.

[59] Section 509 of the Act sets out the criteria (the section 509 criteria) that must be
satisfied before the tribunal can give approval for the performance of ECT:

“509 Decision on application

(1) In deciding the application, the tribunal must
give, or refuse to give, approval for
electroconvulsive therapy to be performed on
the person.
(2) In deciding whether to give, or refuse to give,
the approval, the tribunal must have regard to—
(a) if the person is an adult—
(i) whether the adult is able to give
informed consent to the therapy; and
(ii) to the greatest extent practicable,
any views, wishes and preferences
the adult has expressed about the
therapy, whether in an advance
health directive or otherwise; or
(b) if the person is a minor—
(i) the views of the minor’s parents; and
(ii) the views, wishes and preferences of
the minor.
(3) Subject to subsections (4) to (6), the tribunal
may give the approval only if the tribunal is
satisfied the person is—

5
Explanatory notes to the Health and Other Legislation Amendment Bill 2021, at page 5.
6
Section 232 of the Mental Health Act 2016 (Qld).
 14

(a) an adult who is not able to give informed

consent to the therapy, whether or not the
adult is subject to a treatment authority,
forensic order or treatment support order;
or
(b) an adult who is—
(i) able to give informed consent to the
therapy; and
(ii) subject to a treatment authority,
forensic order or treatment support
order; or
(c) a minor.
(4) If subsection (3)(a) applies, the tribunal must
also be satisfied—
(a) the therapy has clinical merit and is
appropriate in the circumstances; and
(b) evidence supports the effectiveness of the
therapy for the adult’s particular mental
illness; and
(c) if the therapy has previously been
performed on the adult—of the
effectiveness of the therapy for the adult.
(5) If subsection (3)(b) applies, the tribunal must
also be satisfied—
(a) the applicant has given the adult the
explanation required under section 234;
and
(b) the adult has given informed consent to the
therapy under chapter 7, part 10.
(6) If subsection (3)(c) applies, the tribunal must
also be satisfied—
(a) the therapy has clinical merit and is
appropriate in the circumstances; and
(b) evidence supports the effectiveness of the
therapy for—
(i) the minor’s particular mental illness;
and
(ii) persons of the minor’s age; and
(c) if the therapy has previously been
performed on the minor—of the
 15

effectiveness of the therapy for the minor;

and
(d) the performance of the therapy on the
minor is in the minor’s best interests.
(7) If the tribunal gives the approval, the approval—
(a) must state the number of treatments that
may be performed in a stated period under
the approval; and
(b) may be made subject to the conditions the
tribunal considers appropriate.”

[60] It follows from section 509 that if the person is able to give informed consent, but
does not consent, then ECT cannot be approved. That is the position that the appellant
advances in this case.

[61] The requirements for informed consent are set out in section 233 of the Act:

“233 Requirements for informed consent

(1) A person gives informed consent to the person’s treatment by
regulated treatment only if—
(a) the person has capacity to give consent to the treatment;
and
(b) the consent is in writing signed by the person.
(2) For subsection (1)(a), the person has capacity to give consent
to the treatment if the person has the ability to—
(a) understand the nature and effect of a decision relating to
the treatment; and
(b) freely and voluntarily make the decision; and
(c) communicate the decision.
(3) A person can give informed consent in an advance health
directive.”

[62] Importantly, before a person gives informed consent to ECT they must be given a full
explanation about the nature and effect of the treatment.

“234 Explanation to be given

Before a person gives informed consent to the person’s
treatment by regulated treatment, the doctor proposing
to provide the treatment must give the person a full
explanation, in a form and language able to be
understood by the person, about—
 16

(a) the purpose, method, likely duration and expected

benefit of the treatment; and
(b) possible pain, discomfort, risks and side effects
associated with the treatment; and
(c) alternative methods of treatment available to the person;
and
(d) the consequences of not receiving treatment.”

[63] Accordingly, this explanation, which must be provided by the doctor, provides
context as to whether the person has the ability to understand the nature and effect of
a decision relating to ECT treatment as set out in 233 (2) (a) of the Act.

[64] The section 509 criteria are the result of significant amendment by the Health and
Other Legislation Amendment Act 2022 (No 1 of 2022) and the explanatory notes set
out the position prior to 1 July 2022:7

“The Mental Health Act provides that a medical practitioner requires

the MHRT’s approval to perform ECT on an adult who is unable to
give informed consent to the treatment. Before approving the
performance of ECT, the MHRT must:
• consider the views, wishes and preferences expressed by the
person about the therapy in an Advance Health Directive, and
• be satisfied:
− the therapy is in the person’s best interests;
− there is evidence supporting the effectiveness of the
therapy for the person’s particular mental illness; and
− if the therapy has previously been performed on the
person, the therapy has been effective for the person.
The current test does not require the MHRT to take into account the
views, wishes and preferences of an adult who is unable to give
informed consent to the treatment unless they are expressed in an
Advance Health Directive. It also does not require the MHRT to
specifically consider the adult’s capacity to provide informed consent
to the therapy. Additionally, the ‘best interests’ test is considered a less
rights-based approach which may not promote a person’s participation
in making decisions about their treatment compared with other
approaches that require consideration of the person’s views, wishes
and preferences together with an ‘appropriateness’ element such as a
‘clinical merit’ test.”

7
Explanatory notes to the Health and Other Legislation Amendment Bill 2021, at pages 5 – 6.
 17

[65] The explanatory notes then go on to make it clear that the object of the present
statutory scheme is to enhance the protections for persons with mental illness who
cannot consent to ECT or who may have specific vulnerabilities in relation to
providing consent which warrants additional oversight.8

[66] The section 509 criteria now adopt a more rights-based approach, including by
removing the ‘best interests’ test for adults and specifically requiring consideration
of an adult’s capacity to provide informed consent, where relevant.9

[67] As the explanatory notes explain that this will also better support decision makers in
complying with their obligations under the Human Rights Act 2019 (Qld) (HRA).10

[68] The section 509 criteria will also better support a person to participate in decisions
and are considered to promote a person’s right to recognition and equality before the
law.11

[69] The appellant is presently an involuntary patient under the Act under a treatment
authority. However, this does not alter the requirements of informed consent as
provided by section 233 of the Act.

[70] It should be noted that the legislature has purposely distinguished between the
meaning of capacity in relation to receiving treatment under the Act, and the capacity
to give consent to ECT.

[71] The meaning of capacity to consent to be treated under the Act (for non-regulated
treatments) is not the same as capacity to give consent to ECT, and the former is set
out in section 14 of the Act:

“14 Meaning of capacity to consent to be treated

(1) A person has capacity to consent to be treated if the
person—
(a) is capable of understanding, in general terms—
(i) that the person has an illness, or symptoms
of an illness, that affects the person’s
mental health and wellbeing; and
8
Explanatory notes to the Health and Other Legislation Amendment Bill 2021, at page 6.
9
Explanatory notes to the Health and Other Legislation Amendment Bill 2021, at page 6.
10
Explanatory notes to the Health and Other Legislation Amendment Bill 2021, at page 6.
11
Human Rights Statement of Compatibility to the Health and Other Legislation Amendment Act 2022
(Qld), at page 4.
 18

(ii) the nature and purpose of the treatment for

the illness; and
(iii) the benefits and risks of the treatment, and
alternatives to the treatment; and
(iv) the consequences of not receiving the
treatment; and
(b) is capable of making a decision about the
treatment and communicating the decision in
some way.
(2) A person may have capacity to consent to be treated
even though the person decides not to receive
treatment.
(3) A person may be supported by another person in
understanding the matters mentioned in
subsection (1)(a) and making a decision about the
treatment.
(4) This section does not affect the common law in
relation to—
(a) the capacity of a minor to consent to be treated;
or
(b) a parent of a minor consenting to treatment of
the minor.”

[72] The Act acknowledges that capacity may fluctuate, which is a factor to take into
account when determining when a treatment authority must be revoked:

“421 Requirement to revoke treatment authority

(1) On a review of a treatment authority, the tribunal
must revoke the authority if the tribunal
considers—
(a) the treatment criteria no longer apply to
the person subject to the authority; or
(b) there is a less restrictive way for the person
to receive treatment and care for the
person’s mental illness.
(2) However, subsection (1) does not apply if the
tribunal considers the person’s capacity to
consent to be treated for the person’s mental
illness is not stable.
Example of when a person’s capacity to consent is not
stable—
the person gains and loses capacity to consent to be
treated during a short time period.”
 19

[73] However, the test for capacity that is applied to regulated treatments, including ECT,
is decision and time specific and is distinct from the test for capacity that applies to
involuntary treatment provided under a treatment authority.12

[74] Therefore, as the explanatory notes make clear, the Act provides that a person may
be placed on a forensic order or treatment support order by the Mental Health Court
following an unlawful act, on the basis the order is necessary to protect the safety of
the community. However, a person under a treatment authority may be assessed as
having capacity to consent to ECT even though they may be assessed, at the same
time, as not having capacity to consent to other non-regulated treatments, such as
psychotropic medications:13

“The Mental Health Act provides that a person may be placed on a

forensic order or treatment support order by the Mental Health Court
following an unlawful act, on the basis the order is necessary to protect
the safety of the community. A forensic order or treatment support
order provides for, among other things, the involuntary treatment and
care of a person with a mental illness. While persons on these orders
may lack capacity, this is not a particular consideration of the Court
when making the order.
…
Although patients on forensic orders or treatment support orders may
therefore have capacity to make treatment decisions, including
decisions about ECT, the high level of monitoring and specific
requirements attached to the treatment provided under their orders
may make them susceptible to providing consent under the mistaken
belief they are required to undergo ECT as a condition of their order.
To provide additional protection to people subject to involuntary
orders, and improve safeguards for the rights of individuals under the
Human Rights Act, it is proposed that for persons subject to a
treatment authority, forensic order or treatment support order, the
MHRT should be satisfied that the person has both been given
appropriate information about ECT and has given informed consent.”

[75] As the explanatory notes also make clear, if a person under an involuntary order has
the capacity to provide informed consent and declines to undergo ECT, the tribunal
will be required to respect their decision. If a person on an involuntary order does not
have capacity, the test for approving the performance of ECT will be the same for
other adults who do not have capacity to provide informed consent.14

12
Explanatory notes to the Health and Other Legislation Amendment Bill 2021, at page 6.
13
Explanatory notes to the Health and Other Legislation Amendment Act, at page 7.
14
Explanatory notes to the Health and Other Legislation Amendment Act, at page 7.
 20

The Mental Health Act 2016 (Qld) and the Human Rights Act 2019 (Qld)

[76] Relevantly, in relation to this appeal, one of the main objects of the Act is to improve
and maintain the health and wellbeing of persons who have a mental illness who do
not have the capacity to consent to be treated.15 This to be achieved in a way that:

(a) safeguards the rights of persons; and

(b) is the least restrictive of the rights and liberties of a person who has a mental
illness; and

(c) promotes the recovery of a person who has a mental illness, and the person’s
ability to live in the community, without the need for involuntary treatment
and care.16

[77] The Act recognises the least restrictive practices should always be adopted in respect
of patients. The least restrictive way is if it adversely affects the person’s rights and
liberties only to the extent required to protect the person’s safety and welfare or the
safety of others.17

[78] Any person performing a function or exercising a power under the Act must have
regard to18 a number of principles which apply in relation to a person who has, or may
have, a mental illness19 which relevantly for this appeal include:

“(a) Same human rights

• the right of all persons to the same basic human rights
must be recognised and taken into account
• a person’s right to respect for his or her human worth and
dignity as an individual must be recognised and taken
into account
(b) Matters to be considered in making decisions
• to the greatest extent practicable, a person is to be
encouraged to take part in making decisions affecting the
person’s life, especially decisions about treatment and
care

15
Section 3 (1) (a) of the Mental Health Act 2016 (Qld).
16
Section 3 (2) of the Mental Health Act 2016 (Qld).
17
Section 3 (3) of the Mental Health Act 2016 (Qld).
18
Section 7 of the Mental Health Act 2016 (Qld).
19
Section 5 of the Mental Health Act 2016 (Qld).
 21

• to the greatest extent practicable, in making a decision

about a person, the person’s views, wishes and
preferences are to be taken into account
• a person is presumed to have capacity to make decisions
about the person’s treatment and care and other matters
under this Act
(c) Support persons
• to the greatest extent practicable, family, carers and
other support persons of a person who has a mental
illness are to be involved in decisions about the person’s
treatment and care, subject to the person’s right to
privacy
(d) Provision of support and information
• to the greatest extent practicable, a person is to be
provided with necessary support and information to
enable the person to exercise rights under this Act,
including, for example, providing access to other
persons to help the person express the person’s views,
wishes and preferences
(e) Achievement of maximum potential and self-reliance
• to the greatest extent practicable, a person is to be helped
to achieve maximum physical, social, psychological and
emotional potential, quality of life and self-reliance
(f) Acknowledgement of needs
• a person’s age-related, gender-related, religious,
communication and other special needs must be
recognised and taken into account
• a person’s hearing, visual or speech impairment must be
recognised and taken into account
(g) Aboriginal people and Torres Strait Islanders
• the unique cultural, communication and other needs of
Aboriginal people and Torres Strait Islanders must be
recognised and taken into account
• Aboriginal people and Torres Strait Islanders should be
provided with treatment, care and support in a way that
recognises and is consistent with Aboriginal tradition or
Island custom, mental health and social and emotional
wellbeing, and is culturally appropriate and respectful
• to the extent practicable and appropriate in the
circumstances, communication with Aboriginal people
and Torres Strait Islanders is to be assisted by an
interpreter
 22

(h) Persons from culturally and linguistically diverse

backgrounds
• the unique cultural, communication and other needs of
persons from culturally and linguistically diverse
backgrounds must be recognised and taken into account
• services provided to persons from culturally and
linguistically diverse backgrounds must have regard to
the person’s cultural, religious and spiritual beliefs and
practices
• to the extent practicable and appropriate in the
circumstances, communication with persons from
culturally and linguistically diverse backgrounds is to be
assisted by an interpreter
…
(j) Maintenance of supportive relationships and community
participation
• to the greatest extent practicable, the importance of a
person’s continued participation in community life and
maintaining existing supportive relationships are to be
taken into account, including, for example, by providing
treatment in the community in which the person lives.
(k) Importance of recovery-oriented services and reduction
of stigma
• the importance of recovery-oriented services and the
reduction of stigma associated with mental illness must
be recognised and taken into account.
(l) Provision of treatment and care
• treatment and care provided under this Act must be
provided to a person who has a mental illness only if it
is appropriate for promoting and maintaining the
person’s health and wellbeing.
(m) Privacy and confidentiality
• a person’s right to privacy and confidentiality of
information about the person must be recognised and
taken into account.”

[79] In my view, the objects and principles of the Act are compatible with HRA despite
being expressed in slightly different terms.20

20
See Attorney-General for the State of Queensland v GLH [2021] QMHC 4.
 23

[80] I note that section 13 of the HRA sets out that a human right “may be subject under
law only to reasonable limits … in deciding whether a limit on a human right is
reasonable and justifiable, a number of factors may be relevant”. One of those factors
is whether there are any less restrictive and reasonably available ways to achieve that
purpose.21 Such a position is also built into the how the Act’s objects are to be
achieved.22

[81] In making a decision to approve ECT a number of human rights are engaged
including:

(a) the right to recognition and equality before the law;23

(b) the right to privacy;24

(c) the right to liberty and security of person;25

(d) the right to humane treatment when deprived of liberty;26 and

(e) the right to access health services without discrimination.27

[82] Further section 17 (c) of the HRA provides that a person must not be subjected to
medical or scientific experimentation or treatment without the person’s full, free and
informed consent.

[83] These considerations raised by the HRA are consistent with the Act’s objects and the
principles that must be applied when performing a function or power under the Act.

What does the ability to understand the nature and effect of a decision relating to ECT
mean?

[84] This appeal concerns whether the appellant is able to give informed consent to ECT
as required by section 509 (2) (a) (i).

21
Section 13 of the Human Rights Act 2019 (Qld).
22
Section 3 (2) of the Mental Health Act 2016 (Qld).
23
Section 15 of the Human Rights Act 2019 (Qld).
24
Section 25 of the Human Rights Act 2019 (Qld).
25
Section 29 of the Human Rights Act 2019 (Qld).
26
Section 30 of the Human Rights Act 2019 (Qld).
27
Section 37 (1) of the Human Rights Act 2019 (Qld).
 24

[85] Section 233 of the Act sets out the requirements for informed consent and an issue
for this appeal is whether the appellant has the ability to understand the nature and
effect of a decision relating to ECT.

[86] The Chief Psychiatrist submits that to have the “ability to ... understand the nature
and effect of a decision relating to the treatment” in terms of section 233 (2) (a), a
person:

(a) must be able to understand that they are making a decision about whether or
not to have ECT as a treatment option (the nature of the decision); and

(b) must be able to have at least some basic understanding that ECT is being
proposed because the person's doctor considers that it is a treatment that can be
effective for their particular mental condition and may be beneficial for them
(the effect of the decision).

[87] Section 233 (2) (a) has not been previously considered in a published judgment in
Queensland.

Adamson v Enever & Anor [2021] QSC 221

[88] The Guardianship and Administration Act 2000 (Qld) defines capacity in almost
identical terms as section 233 of the Act:

“Capacity, for a person for a matter, means the person is capable of –

(a) understanding the nature and effect of decisions about the matter;
and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way”

[89] In Adamson v Enever & Anor [2021] QSC 221 (Adamson), Applegarth J explained
the meaning of the limb “understand the nature and effect of decisions” in relation to
the Guardianship and Administration Act 2000 (Qld):

“[43] The Capacity Guidelines explain that the adult needs to be

able to understand the information that is relevant to the
decision, including the options and their consequences. It is
sufficient for the adult to have a ‘basic understanding of the
key features’ of that information, but for this criterion to be
met, more complex decisions require more understanding.
 25

[44] The adult must also be able to retain the relevant

information. This may only be for a short period, provided
the period is long enough for the adult to make a decision.
Also, the adult must have the ability to broadly identify the
advantages and disadvantages of the available options and
to understand the consequences of those options, then weigh
those consequences and reach a decisions.”

[90] Applegarth J drew heavily on the Queensland Capacity Assessment Guidelines

prepared under section 250 of the Guardianship and Administration Act 2000 (Qld)
to assist people required to make assessments about the capacity of adults to make
decisions about matters under Queensland's guardianship legislation. These
guidelines do not apply to decisions about capacity under the Act. However, in my
view Adamson is instructive when considering whether a person has the ability to
understand the nature and effect of a decision relating to ECT as required by section
233 of the Act.

[91] A number of interstate decision have also considered the issue of consent in relation
to their respective statutory schemes.

PBU and NJE v Mental Health Tribunal (2018) 56 VR 141

[92] In the leading Victorian case of PBU and NJE v Mental Health Tribunal (2018) 56
VR 141 (PBU and NJE), Bell J considered the relevance of lack of insight in deciding
whether a person has capacity to consent under the Mental Health Act 2014 (Vic) (the
Victorian Act) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)
(the Victorian Charter).

[93] In PBU and NJE two patients in separate appeals challenged VCAT orders that they
be subjected to ECT. Bell J conducted a comprehensive review of the law relating to
involuntary treatment including the specific issues of informed consent, capacity to
give consent, the no less restrictive treatment principle, the absence of a best interests
test, and the application of the Victorian Charter.

[94] Ultimately, Bell J concluded that the tribunal had misinterpreted and misapplied the
statutory test, and upheld the appeals.
 26

[95] The critical issue in PBU and NJE was the construction of the statutory test for
“capacity to give informed consent” in section 68(1) of the Victorian Act which is a
differently worded test to section 233 of the Queensland Act.

[96] Section 68 (1) of the Victorian Act is as follows:

“68 Capacity to give informed consent under this Act

(1) A person has the capacity to give informed consent
under this Act if the person-
(a) understands the information he or she is given
that is relevant to the decision; and
(b) is able to remember the information that is
relevant to the decision; and
(c) is able to use or weigh information that is
relevant to the decision; and
(d) is able to communicate the decision he or she
makes by speech, gestures or any other means.”

[97] Unlike the Queensland Act, this provision is not specific to ECT. However, it is
broadly to the same effect. Further the Queensland HRA is modelled on the Victorian
Charter and operates in a similar way.

[98] As to the level of understanding required in the test for capacity to consent in Victoria,
it is relevant to note that in PBU and NJE, Bell J said in paragraph [160]:

“[160] ... under the Mental Health Act, the test in s 68(1)(a) is
whether the person 'understands the information he or she
is given that is relevant to the decision'. The ordinary and
natural meaning of the word 'understand' is 'perceive the
meaning of, 'grasp the idea of or 'comprehend'. In that
provision, I think the level of understanding intended is only
a general kind of understanding that relates to the nature,
purpose and effect of the treatment ...”

[99] In paragraph [280], Bell J said:

“[280] It is enough that the person, like most people, is able to make
and communicate a decision in broad terms as to the general
nature, purpose and effect of the treatment.”

[100] I note that this approach appears to be consistent with the way in which Adamson
considered the statutory test for capacity to make decisions in the Queensland
Guardianship and Administration Act 2000 (Qld).
 27

[101] In PBU and NJE, Bell J made a number of observations specifically about PBU’s
circumstances:28

“[9] … Extensive medical evidence was given, including by

PBU's treating psychiatrist and the clinical director of the
Mental Health Service for the Northern Area. This evidence,
which was carefully reviewed by VCAT, was that ECT was
the only currently available appropriate treatment for PBU,
that his mental state was slowly deteriorating, that he had
refused to take Clozapine, and that only ECT would allow
him to become well enough to engage in his treatment and
improve sufficiently to leave hospital.
…
[13] VCAT ... accepted the contention of the clinical director that
PBU did not have capacity because he did not accept the
diagnosis of schizophrenia in relation to him:
I find that, as at the hearing date, he did not have
capacity to give informed consent to whether ECT
should be performed in circumstances where he did
not accept the diagnosis for which the treatment was
intended to be given. PBU has consistently disputed
the diagnosis and the suggestion that ECT might be
beneficial for him.
VCAT expressed its conclusion at this level of generality.
There is no discussion in the reasons for decision of how
PBU's refusal to accept the diagnosis of schizophrenia
related to his ability to remember and weigh and use
information and communicate his decision.
…
[279] In the case of PBU, the central error of law was that VCAT
determined that he did not have the capacity to give
informed consent because he did not accept or believe, or
have insight into, the diagnosis of his mental illness. For
various personal, social and medical reasons, it is not
uncommon for persons having mental illness and persons
not having mental illness to deny or diminish their illness
and the need for treatment. In both cases, lack of acceptance,
belief or insight may be relevant when determining whether
a person has the capacity to give informed consent, but it is
only one consideration. It would be discriminatory to treat
this consideration as determinative in relation to people
having mental illness when it is not determinative in relation
to people not having mental illness. In fact, PBU did accept
that he had a mental illness for which he needed non-ECT
treatment, but VCAT gave this little weight.”

28
PBU & NJE v Mental Health Tribunal and Others (2018) 56 VR 141, at [9], [13], and [29].
 28

[102] As to the level of understanding required in the test for capacity to consent in Victoria,
it is relevant to note that in PBU and NJE, Bell J said:29
“[23] VCAT found that NJE met the criteria in paras 68(1)(a), (b)
and (d):
I was satisfied that NJE had an understanding about
ECT treatment as described in section 68 of the MHA
in that she could understand the information, could
remember it and could communicate her wishes and
her anxieties.
It is reasonable to infer that VCAT accepted that, in doing
so, NJE understood that ECT was a procedure that would
result in her having seizures and that she was concerned that
it may cause her to have memory problems, as her legal
representative submitted. It is reasonable to infer that, in
doing so, VCAT also accepted the submission made for NJE
that her preferred alternative to ECT was remaining in
hospital for an extended period and the trialling of
alternative medications, possibly Clozapine.
[24] However, VCAT found under s 68(1)(c) that NJE could not
use and weigh information relevant to the decision:
…
[25] VCAT ... accepted the evidence of Dr A that additional
attempts to discuss, or provide more written information
about, ECT only aggravated NJE. VCAT found that '[i]t was
not that NJE did not understand but rather that she could not
be persuaded that the information was relevant to her’.
…
[27] NJE’s strongly and consistently expressed view and
preference, of which VCAT made note, was to remain in
hospital and continue to receive depot and oral medication.
VCAT said that it gave weight to the medical evidence that
'ECT was the only treatment that has a chance to address
both positive and negative symptoms' of NJE's
schizophrenia.
…
[280] In the case of NJE, the central error of law was that VCAT
determined that she did not have the capacity to give
informed consent because she had not actually given careful
consideration to the advantages and disadvantages of ECT.
To have the capacity to give informed consent, it is not
required of persons having mental illness, nor of persons not
having mental illness, that they give, or are able to give,
careful consideration to the advantages and disadvantages of

29
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, at [23] – [27], and [280].
 29

the treatment. It is not required that they make, or are able to

make, a rational and balanced decision in relation to the
decision. It is enough that the person, like most people, is
able to make and communicate a decision in broad terms as
to the general nature, purpose and effect of the treatment.
Personal autonomy and the dignity of the individual are at
stake. A person does not lack the capacity to give informed
consent simply by making a decision that others consider to
be unwise according to their individual values and situation.
To impose upon persons having mental illness a higher
threshold of capacity, and to afford them less respect for
personal autonomy and individual dignity, than people not
having that illness, would be discriminatory.”

[103] In relation to the relevance of a person having a lack of insight into their mental
illness, Bell J considered this issue and stated:30

“[194] Insight into one's diagnosis and need for treatment varies
significantly between different persons and between the
same persons in different situations. Insight is potentially
affected in nature and degree by various non-capacity
influences, including educational background, language
proficiency, familiarity with medical issues and family and
social relationships (negative and positive) and (often
critically) the availability of appropriate support. For these
reasons, it is but one of the factual considerations that may
be relevant when assessing capacity to give informed
consent. As disability law scholars have written:
A lack of insight may impact a person's ability to
understand [or use or weigh] relevant information, but
the presence or absence of insight is not a proxy for
the presence or absence of decision-making capacity.
Insight is an extremely complicated phenomenon that
is rarely either simply present or absent. Various
aspects of insight - such as insight into diagnosis,
insight into the presence or veracity of
phenomenology and insight into the need for treatment
- may all vary independently. This, in combination
with the requirement that a person only needs to
understand information that is relevant to the decision
being made, means that while a lack of insight may
suggest a lack of decision making capacity, this deficit
alone will rarely be determinative.”
(citations omitted)

[104] His Honour concluded:

30
At pages 198-203, [183] - [198].
 30

“[198] In conclusion, it may be accepted that the presence of delusional

thinking and irrational fears is ‘capable of depriving a person of
capacity. The question is whether it does’. So may it be accepted
that lack of belief or insight in respect of a mental illness or need for
treatment may be capable of suppo1iing a finding of incapacity. The
question is whether it does. This means giving due consideration to
a relevant fact, not (in effect) applying a determinative normative
criterion.”

(citations omitted)

[105] Bell J said that the test for capacity to consent in the Victorian Act reflects the
“functional approach”31 which asks “whether, at the time the decision had to be made,
the person could understand its nature and effects”, rather than the “status approach”32
or the “outcome approach”.33

[106] Bell J made it clear that in determining whether a person has the capacity to give
informed consent to have ECT there is no room for a paternalistic or beneficial
approach:34
“[167] … One can understand the natural human tendency of health
professionals and judicial officers, among others, to make decisions
in the best interests of vulnerable persons, especially where
treatment for grievous ill-health, or even the person's life, is at stake.
It has been described as the ‘protection imperative’.

[168] However well intentioned, such a paternal or beneficial approach is

not part of the common law test of capacity and was rejected when
the functional approach was adopted ... as now reflected in s 68(1)
of our Mental Health Act.”

(citations omitted)

[107] Bell J concluded35 in relation to the two appeals that VCAT misinterpreted and
misapplied the statutory test in the Victorian Act “in ways that undermined PBU and
NJE's human right to self-determination, to be free of non-consensual medical
treatment and to personal inviolability which are protected by the Charter of Human

31
As explained by Baroness Hale in the House of Lords in R v Cooper [2009] 1 WLR 1786.
32
The ‘status approach’: excluded all people with a particular characteristic from a particular decision,
irrespective of their actual capacity to make it at the time. R v Cooper [2009] I WLR 1786 per
Baroness Hale at 1789.
33
The ‘outcome approach’: focused on the final content of the decision: a decision which is inconsistent
with conventional values or with which the assessor disagreed might be classified as incompetent. R v
Cooper [2009] 1 WLR 1786 per Baroness Hale at 1789.
34
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, at [167] – 168].
35
At 225 [276].
 31

Rights and Responsibilities Act”.36 His Honour explained the basis of that
conclusion:37
“[279] In the case of PBU, the central error of law was that VCAT
determined that he did not have the capacity to give informed
consent because he did not accept or believe, or have insight into,
the diagnosis of his mental illness …

[280] In the case of NJE, the central error of law was that VCAT
determined that she did not have the capacity to give informed
consent because she had not actually given careful consideration to
the advantages and disadvantages of ECT. To have the capacity to
give informed consent, it is not required of persons having mental
illness, nor of persons not having mental illness, that they give, or
are able to give, careful consideration to the advantages and
disadvantages of the treatment. It is not required that they make, or
are able to make, a rational and balanced decision in relation to the
decision. It is enough that the person, like most people, is able to
make and communicate a decision in broad terms as to the general
nature, purpose and effect of the treatment.”

[108] The decision in PBU and NJE has been applied in VCAT decisions and been the
subject of commentary.38 Clearly each case depends on its own facts.39

TSC v Department of Health and Wellbeing [2021] SASCA 93

[109] In TSC v Department of Health and Wellbeing [2021] SASCA 9340 (TSC) the Court
of Appeal of South Australia gave careful consideration to PBU and NJE, noting the
differences in the applicable statutory tests.

[110] In South Australia, section 5A (2) of the Mental Health Act 2009 (SA) provides:

“5A-Decision-making capacity
(1) ...
(2) For the purposes of this Act, a person will be taken to have
impaired decision-making capacity in respect of a particular
decision if-

36
PBU and NJE v Mental Health Tribunal and Others (2018) 56 VR 141, at 225 [276].
37
At 226 [279]-[280].
38
Ian Freckelton QC, “Electroconvulsive Therapy, law and human rights”, 2019 Psychiatry,
Psychology and Law, Vol 20(l), pp 1-20.
Bernadette McSherry, “Electroconvulsive Therapy without Consent; The Influence of Human Rights
Law”, 2019 Journal of Law and Medicine, Vol 26(4), pp 732-736.
39
YLY v Mental Health Tribunal (Human Rights) [2019] VCAT 1383 (the Tribunal set aside the decision
to approve ECT); XJY v Mental Health Tribunal (Human Rights) [2021] VCAT 83 (The Tribunal
confirmed the decision to approve ECT).
40
At [22] – [41].
 32

(a) the person is not capable of-

(i) understanding any information that may be relevant to
the decision (including information relating to the
consequences of making a particular decision); or
(ii) retaining such information; or
(iii) using such information in the course of making the
decision; or
(iv) communicating his or her decision in any manner.”

[111] Once again, like the Victorian legislation, this provision is not specific to ECT.

[112] The Court of Appeal noted that a question of capacity will be fact and context
specific:41

“[40] A question of capacity for the purpose of s 16(1)(c) will be

fact-and context specific. While the capacity test does not
admit of extraneous considerations, such as the 'best
interests' of the person, that does not mean that incapacity
cannot be proved, on the evidence, by reference to various
considerations depending on the circumstances. Different
factors may contribute to the conclusion, one way or the
other. We endorse the observation by the Tribunal in GKK v
Department of Health and Ageing:
‘Insight or acceptance of the fact of a mental illness is
clearly a significant factor in assessing whether a
person has impaired decision making capacity as to the
need for treatment for a mental illness. A failure by a
person to accept that they are suffering from a mental
illness may consequently lead to a conclusion that the
person has impaired decision-making capacity as to
the appropriate treatment for their mental illness.’
[41] On the other hand, depending on all of the circumstances, it
may not.”

[113] The Court of Appeal concluded that it was open on the facts of that case to conclude
that TSC lacked the capacity to consent to treatment for his mental illness. The case
was not concerned with ECT.

[114] The Court of Appeal endorsed the principles stated by Bell J in PBU and NJE,
although it noted that “the absence of legislation in South Australia containing the
interpretive commands of the Victorian Charter”.42

41
TSC v Department of Health and Wellbeing [2021] SASCA 93, at [40] – [41].
42
TSC v Department of Health and Wellbeing [2021] SASCA 93, at [33].
 33

[115] The tribunal’s decision appears to have been largely based on the fact that TSC did
not accept his diagnosis of schizophrenia or the need for treatment, but the Court of
Appeal noted43 that the tribunal had taken into account the totality of the evidence
and concluded44 that TSC's “psychotic condition has clouded his judgment”.

Summary of principles in relation to informed consent and section 233 (2) (a) of the
Act

[116] One of the main objects of the Act is to improve the health and wellbeing of persons
who have a mental illness who do not have the capacity to consent to be treated. This
must be achieved in a way that:

(a) safeguards the rights of persons; and

(b) is the least restrictive of the rights and liberties of a person who has a mental
illness; and

(c) promotes the recovery of a person who has a mental illness, and the person’s
ability to live in the community, without the need for involuntary treatment
and care.45

[117] Persons who have, or may have, a mental illness have the same human rights as
persons who do not have a mental illness and this must be recognised and taken into
account. A person’s right to respect for his or her human worth and dignity as an
individual must be also recognised and taken into account.46

[118] To the greatest extent practicable:

(a) a person is to be encouraged to take part in making decisions affecting the

person’s life, especially decisions about treatment and care; and

(b) in making a decision about a person, the person’s views, wishes and
preferences are to be taken into account.47

[119] The Act rejects the best interest paradigm in relation to decisions about requiring
people to have ECT and requires consideration of the person’s views, wishes and

43
TSC v Department of Health and Wellbeing [2021] SASCA 93, at [48] and [59]-[63].
44
TSC v Department of Health and Wellbeing [2021] SASCA 93, at [62].
45
Section 233 (2) (a) of the Mental Health Act 2016 (Qld).
46
Section 9 of the Mental Health Act 2016 (Qld).
47
Section 5 of the Mental Health Act 2016 (Qld).
 34

preferences together with an ‘appropriateness’ element such as a ‘clinical merit’ test.

This is a fundamental change which must be acknowledged by those considering
whether the section 509 criteria apply to a person. For example, I note that Dr C’s
latest report on 27 March 2023, still considers whether the performance of ECT is in
the person’s best interest. This is wrong.

[120] In relation to determining whether a person can understand the nature and effect of a
decision relating to ECT the following matters are relevant:

(a) Capacity to give consent to ECT must be established on the balance of

probabilities. No party bears the onus of proof of any matter.48

(b) A person has capacity to give informed consent to ECT if they have the ability
to:

(i) understand the nature and effect of a decision relating to the treatment;
and

(ii) freely and voluntarily make the decision; and

(iii) communicate the decision.49

(c) The starting point is that a person is presumed to have capacity to make
decisions about the person’s treatment and care.50

(d) The test for capacity applied to regulated treatments, including ECT, is
decision and time specific and is distinct from the test for capacity that applies
to involuntary treatment provided under a treatment authority.

(e) Therefore, a person under a treatment authority may be assessed as having

capacity to consent to ECT even though they may be assessed, at the same
time, as not having capacity to consent to other non-regulated treatments, such
as psychotropic medications.

(f) If a person under an involuntary order has the capacity to provide informed
consent and declines to undergo ECT, then this decision must be respected.

48
Section 685 of the Mental Health Act 2016 (Qld).
49
Section 233 of the Mental Health Act 2016 (Qld).
50
Section 5 (c) of the Mental Health Act 2016 (Qld).
 35

(g) In order to have the capacity to provide informed consent a person needs to
be able to understand the information that is relevant to the decision, including
the options and their consequences. This information must be provided to the
person before a person gives informed consent to ECT.

(h) Accordingly, section 234 of the Act requires that before a person gives
informed consent to ECT, they must be given a full explanation (in a form and
language able to be understood by the person) about:

(i) the purpose, method, likely duration and expected benefit of the
treatment; and

(ii) possible pain, discomfort, risks and side effects associated with the
treatment; and

(iii) alternative methods of treatment available to the person; and

(iv) the consequences of not receiving treatment.51

(i) This explanation informs the context of whether the person has the ability to
understand the nature and effect of a decision relating to ECT.

(j) Accordingly, the doctors’ explanations about these matters, the circumstances
in which they were given, and the person’s response should be recorded in the
material so that they can be considered and assessed.

(k) Based on this information, the person in general terms must have the ability
to identify the advantages and disadvantages of the available options and to
understand the consequences of those options, then weigh those consequences
and reach a decision.

(l) A person must be able to:

(i) understand that they are making a decision about whether or not to
have ECT as a treatment option (the nature of the decision); and

(ii) have at least some basic understanding that ECT is being proposed
because the person's doctor considers that it is a treatment that can be

51
Section 234 of the Mental Health Act 2016 (Qld).
 36

effective for their particular mental condition and may be beneficial

for them (the effect of the decision).

(m) To have the capacity to give informed consent to ECT, it is not required of
persons having mental illness, nor of persons not having mental illness, that
they give, or are able to give, careful consideration to the advantages and
disadvantages of the treatment.52

(n) It is not required that a person makes a rational and balanced decision in
relation to their decision. It is enough that the person, like most people, be
able to make and communicate a decision in broad terms as to the general
nature and effect of the treatment.53

(o) The capacity test must be applied in a non-discriminatory manner so as to

ensure that people with mental illness are not deprived of their equal rights to
exercise legal capacity upon the basis of contestable value judgments relating
to their illness, decisions of behaviour, rather than upon the basis of the neutral
application of the statutory criteria as set out in section 233 of the Act.54

(p) In short, the test is not to be applied so as to produce social conformity at the
expense of personal autonomy.55

(q) A person’s right to make decisions includes the right to take risks and make
bad decisions.

(r) Those assessing capacity under section 233 of the Act must not assume that
because the person is not accepting ECT, in circumstances when they
objectively should, then they do not have the ability to understand the nature
and effect of a decision relating to ECT.

(s) Those assessing capacity under section 233 of the Act must “vigilantly ensure
that the assessment is evidence based, patient-centred, criteria focused and
non-judgemental, and not made to depend, implicitly or explicitly, upon
identification of a so called objectively reasonable outcome”.56

52
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, at [279] – [280].
53
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, at [279] – [280].
54
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, at [206 (4)].
55
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, at [206 (7)].
56
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, at [206 (6)].
 37

(t) Section 233 of the Act does not require an assessment of whether a person is
capable of understanding that they have an illness, or symptoms of an illness,
that affects their mental health and wellbeing.57 However, such an assessment
may be relevant in considering whether the person has the ability to
understand the nature and effect of a decision relating to ECT treatment.

(u) Acceptance of, belief in and insight into the diagnosis of illness and need for
treatment varies significantly depending upon the person and the situation.58

(v) A lack of insight may impact a person's ability to understand relevant

information, but the presence or absence of insight is not a proxy for the
presence or absence of decision-making capacity.59

(w) A lack of insight into a person’s metal illness may be capable of supporting
that a person does not have the ability to understand the nature and effect of a
decision relating to ECT. The question is whether it does. This means giving
due consideration to a relevant fact, not (in effect) applying a determinative
normative criterion.60

(x) Depending upon the facts of the case, a person with mental illness may lack
insight or otherwise not accept or believe that they have a mental illness or
needs ECT treatment yet may have the capacity to give informed consent
when assessed under section 233 of the Act. The opposite may also be so.

(y) Accordingly, those assessing capacity under section 233 of the Act should not
assume that because a person lacks insight into their mental illness they
therefore lack capacity to provide informed consent. Further explanation is
required as to how this lack of insight affects the person’s ability to understand
the nature and effect of a decision relating to ECT.

(z) Accordingly, thus assessing capacity under section 233 of the Act must set out
the reasons why any lack of insight affects the person’s ability to understand
the nature and effect of a decision relating to ECT.

57
cf. section 14 (1) (a) of the Mental Health Court Act 2016 (Qld) – The meaning of capacity to consent
to be treated.
58
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141 at [207 (8)]
59
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141 at [194]
60
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141.
 38

(aa) The presence of thought disorder61 or psychotic thinking clouding the person's
judgment62 or delusions about treatment, may lead to the conclusion that the
person does not have the capacity to consent.

(bb) However, there is a not a one size fit all approach. A question of capacity for
the purpose of section 233 of the Act will be fact and context specific.

The appellant’s submissions

[121] The appellant’s counsel submits that the appellant has been engaging with the process
as required by the Act and weighing up information given to her about the treatment.
The appellant’s counsel highlights the following matters:

(a) The appellant accepts that she has a mental illness and she told Dr Scott she
was first diagnosed with what she described as “textbook paranoid
schizophrenia”.

(b) The appellant does not want ECT because she is concerned that it will cause
memory and cognition problems. The appellant has observed what ECT has
done to other people in the Mental Health Unit and that they look vacant and
catatonic.

(c) The appellant would prefer to have psychotherapy or psychoanalysis instead

of taking medications which all have side effects.

(d) In terms of therapies that have been shown to be effective as “stand-alone”

treatment for schizophrenia, the appellant referred to a book entitled
Psychotherapy of Schizophrenia: The Treatment of Choice (which was written
by Bertram Karon and Gary van den Bos and first published in 1977).

(e) The appellant’s plan is to not have ECT and wait to eventually get discharged.

[122] The appellant’s counsel states that that these matters indicate that the appellant has
been weighing up information about ECT treatment and that her reasoning has some
form of logic, or connection, to real life and is not delusional.

61
For example, XJY v Mental Health Tribunal (Human Rights) [2021] VCAT 83.
62
For example, TSC v Department of Health and Wellbeing [2021] SASCA 93.
 39

[123] To this end, reference was made to the Administration of Electroconvulsive Therapy
Guideline which acknowledges that cognitive risks are a “major source of concern
for persons undergoing treatment”, and that cognitive effects, including effects on
memory, are risks of ECT.

[124] Accordingly, the appellant’s counsel submits that it cannot be said that the appellant
does not understand the nature and effect of the decision, even in circumstances where
she does have disordered thought. Whilst others may not think the appellant’s
decision is not rational – that is not the test.

[125] The appellant’s counsel emphasises that a person is not found to be lacking the
capacity to give informed consent simply by making an unwise decision. Further,
lack of insight does not mean that the appellant cannot provide informed consent per
se. Although, the appellant’s counsel acknowledges that lack of insight is a relevant
factor to take into account.

[126] Accordingly, the appellant’s counsel submit that the appellant understands the nature
and effect of a decision relating to ECT treatment.

Consideration

[127] In this case, the appellant did not at the time of the tribunal hearing have the ability
to understand the nature and effect of a decision relating to the treatment of ECT.

[128] Dr A in his clinical report, accompanying the ECT application dated 3 February 2023,
set out that that the appellant continued to display psychotic symptoms with poor
insight into her mental illness despite admission since September 2022 and had been
prescribed with two depot antipsychotics for a sustained period of time.

[129] Relevantly, Dr A noted that the treating team had not been able to engage in
meaningful discussion regarding ECT, including its risk and benefit, on her better
days.

[130] Dr G’s second opinion performed on 10 February 2023 stated that he found the
appellant lying on her bed, refusing to talk, showing paranoid themes and formal
thought disorder with no insight.
 40

[131] I note that the appellant informed Dr Scott that the treating team had not provided her
with any information about ECT. However, Dr Scott states that the clinical notes
show otherwise.

[132] The appellant’s belief. as to the lack of information provided to her, is consistent with
the reports of Dr A where he states that the treating team has not been able to engage
in meaningful discussion with the appellant regarding ECT on her better days.

[133] In my view the tribunal could not conclude that appellant had the ability to understand
the nature and effect of a decision relating to the treatment.

[134] The tribunal found that she was not able to give informed consent:

“The presenting consultant was of the view that given that the patient
had continuing psychotic symptoms, persecutory delusions and mood
symptoms including being elevated at times and disorganised in the
context of a long-standing psychotic and affective disorder.
Additionally, that she did not property have the capacity to consider
the benefit of the treatment or the consequences of not proceeding with
it.
Overall, having regard to the opinion of the presenting psychiatrist and
the patient’s presentation at the hearing the Tribunal were satisfied that
the person did not have capacity to give consent.”

[135] Dr Scott’s independent assessment then found that the appellant had no intellectual
insight into the complexity of her chronic relapsing mental illness and its effects on
her mood, thoughts and behaviours.

[136] Dr Scott was of the view that as the appellant demonstrates no insight into her chronic
mental illness or her need for treatment, the appellant did not have capacity to consent
to treatment for her chronic mental illness.

[137] At the hearing, Dr Scott strongly reiterated that the appellant does not understand the
effect of her decision to not have ECT, because she doesn’t have insight into her
illness at all:

“[The appellant] doesn’t recognise the symptoms of her mental illness.

She doesn’t understand that her particular symptoms relate to having
a psychotic illness. She doesn’t understand that she has a need for
treatment for her specific mental illness. She also doesn’t understand
that she’s had treatment trials of medication which have not been
effective. And, therefore, the treatment – the optimal treatment for her
mental illness is to have ECT treatment. So there is a number of – a
 41

number of aspects to her lack of insight, but she has a profound lack
of insight because she doesn’t recognise any of those features of what
we call insight into illness.
…
[The appellant] doesn’t have an understanding of her mental illness
and doesn’t understand that her particular mental illness is
characterised by the symptoms that she exhibits. She doesn’t
understand that, having had a number of trials of oral antipsychotic
medication which have not been effective, that the optimal treatment
for her is ECT. She has no insight into the fact that without treatment
and without recovery, she’s not likely to be discharged from the
Mental Health Unit.”

[138] In his evidence at the hearing, Dr Scott posed this rhetorical question: “How can you
refuse to have a treatment for an illness that you don’t recognise you have?”

[139] Dr Scott’s point was that if a patient does not have insight into their illness and does
not recognise they have an illness, then they do not have capacity to either accept or
refuse treatment for that illness.

[140] In my view, at times, Dr Scott’s evidence had a flavour of the best interest approach;
although he disavowed such an approach:

“I mean, I suppose it’s semantics, but do you recognise that there are
rights recognised– sorry – there are rights that are set out in the Human
Rights Act that, on one view, are engaged, but is it your opinion that
her fundamental right – what you called her fundamental right to
treatment overrides those?---Not – not overrides them. So there are –
are certainly a number of rights that ought to be observed, and I’ve
listed those, and I agree that patient autonomy now is seen to be a
fundamental right. But that right is in equal status to a number of other
rights, and the most significant right that we should be considering in
this case is her right to have evidence-based treatment so that she can
recover from her illness and enjoy all the other rights that she currently
is denied, that is, the right to autonomy, the right to privacy, all the
things that we – we often pay lip service to, but we don’t – we don’t
actually acknowledge in a patient who’s detained, suboptimally
treated on a mental health unit after many months.
Okay. Thank you. So is this a correct way of summarising it? Is it your
opinion that her best interests from a medical and psychiatric point of
view is the overriding factor in – when it comes to the question of
whether has – she has the capacity to consent?---No. Well, I – I
wouldn’t use that term, best interest. I’m sure I’ll be admonished if I
use that legal term. But what I’m saying is that there are a number of
rights, and patient autonomy is – is a fundamental right. It has equal
status to other rights, and one of those rights is to have evidence-based
 42

treatment for an illness so that you can recover and enjoy all the other
rights. So it’s not a matter, necessarily, of best interests. It’s about
which rights ought be recognised in this particular case of a – a
mentally unwell woman who is confined to a mental health unit.”

[141] Those assessing capacity under section 233 of the Act must not assume that because
the person is not accepting ECT in circumstances when they objectively should, then
they do not have the ability to understand the nature and effect of a decision relating
to ECT.

[142] It cannot be the case that because the appellant refuses the best treatment available
then she is taken to not have the ability to understand the nature and effect of her
decision relating to ECT; even if such a decision condemns her to being locked in a
mental health unit with a prognosis of deteriorating mental health.

[143] However, in my view, the appellant does not have the ability to understand the nature
and effect of a decision relating to the ECT treatment.

[144] The appellant suffers from chronic paranoid schizophrenia. I note that at the time of
Dr Scott’s assessment, the appellant demonstrated no clear disorder of thought form
(the connectedness of her thoughts). Her thought content consisted of paranoid and
grandiose themes and her comments about her parents particularly her father was
likely to be delusional. Dr Scott noted that the appellant may have been self-censoring
her account for the purposes of the court-ordered assessment.

[145] The appellant denied any violent or intentional self-injury ideation to Dr Scott. The
appellant specifically denied any abnormal percepts or passivity phenomena and she
did not appear pre-occupied or distracted during the assessment.

[146] However, all of the reports assessing the appellant’s mental state note her lack of
insight. Dr Scott states that the appellant’s judgement was chronically impaired. She
demonstrated no insight into her chronic mental illness or her need for treatment.

[147] Whilst the appellant acknowledges that she has paranoid schizophrenia, Dr Scott
states that that the appellant cannot give an explanation about the actual features and
implications of her illness:

“I’m sure that the appellant has had many discussions with many
treating psychiatrists over the short period of her life where she would
acknowledge or say that, “I have paranoid schizophrenia.” But that –
 43

that is a very easy and glib thing to say. When you inquire of the actual
features of her illness and what the implications of her illness are,
that’s where [the appellant] can’t give you that explanation.
So one of the things that she believed was that her father was a
paedophile, that her parents were not her real parents, she was Anglo-
Irish, indigenous, that she was raised by a man who, at the age of four,
was recruited as a sniper during World War II. Those are indications
of her psychotic thought content. So even though she says, “I have
paranoid schizophrenia.” She also believes that the things that she
describes as her thoughts are not psychotic thoughts. So clearly, that
there’s a disconnect. Although she says she has paranoid
schizophrenia, she doesn’t actually recognise that she has paranoid
schizophrenia.”

[148] In my view this lack of insight fundamentally affects her ability to understand the
nature and effect of a decision relating to the treatment.

[149] Further her refusal to have ECT is in circumstances where the treating team, due to
her illness, have not been able to have meaningful discussions with the appellant
regarding ECT including its risk and benefit. This was the position as at the tribunal
hearing.

[150] The appellant states that she has not been provided any information about ECT.
However, Dr Scott states that the clinical notes show otherwise. In my view, the
appellant’s lack of knowledge of being provided an explanation about ECT is due to
her mental illness.

[151] Dr Scott confirmed the appellant is an intelligent woman and at an academic level the
appellant can understand the information provided to her. However, he reiterated that:

“She can listen to the information but she’s not receptive to that
information because she doesn’t believe that ECT will be good for her
because she doesn’t believe she has a mental illness.”

[152] Accordingly, I accept that the appellant has no insight into the complexity of her
chronic relapsing mental illness and its effects on her mood, thoughts and behaviours.
This lack of insight into her chronic mental illness or her need for treatment affects
her ability to understand the nature and effect of a decision to give consent to the
treatment of ECT.
 44

[153] The appellant does not have the ability (in general terms) to identify the advantages
and disadvantages of the available options and to understand the consequences of
those options, then weigh those consequences and reach a decision.

The appropriateness of ECT

[154] Once I am satisfied that the appellant is not able to provide informed consent to ECT,
I then need to consider the matters set out in section 509 (4):

(a) the therapy has clinical merit and is appropriate in the circumstances; and

(b) evidence supports the effectiveness of the therapy for the adult’s particular
mental illness; and

(c) if the therapy has previously been performed on the adult—of the
effectiveness of the therapy for the adult.

[155] Section 509 of the Act sets out the criteria that must be satisfied before the tribunal
can give approval for the performance of ECT. Accordingly, the Mental Health Court
on an appeal may approve the performance of ECT only if satisfied of the same
matters, and may give approval on the same basis.

[156] In this case the appellant states that section 509 (4) (a) is not satisfied as ECT is not
appropriate in the circumstances because there remains an alternative to ECT that
should be explored, being another trial of clozapine.

[157] The appellant’s counsel instructs that she would consider treatment by clozapine. She
is aware that she has had a previous, unsuccessful trial of clozapine, as she reported
to Dr Scott.

[158] Clozapine has previously been trialled on the appellant. However, she had an adverse
reaction, namely severe leucopenia.

[159] In his progress notes dated 8 November 2022, Dr G noted that a clozapine rechallenge
could be considered “as a last option”.

[160] No emergency ECT has been performed on the appellant. On 6 March 2023, Dr C
recorded that “the treating team doesn’t consider the ECT to be an urgent
intervention”.
 45

[161] Dr Scott gave evidence about commencing another trial of clozapine at the hearing:

“And just finally, Dr Scott, she’s previously been – had a trial on clozapine but she
suffered adverse side effects. Would you consider it appropriate for another effort
be – that another effort be made to treat her with clozapine?---Well, every treatment
has risks and benefits and it’s almost a matter of weighing up the risks and benefits.
Certainly, the option of a retrial or a rechallenge with clozapine is one option. It is
not without risks and there are side effects to clozapine. It requires a lot of patient
cooperation because when you begin someone on clozapine, you have got to take
weekly investigations, you have got to do blood tests. But also, you have to have a
patient accept the medication, so take the medication. And the risk is that [the
appellant] could very easily disrupt the trial of clozapine by just refusing to either
take her medication or agree to have the investigation of the blood test, the ECG.
So it can be very problematic when you’re dealing with a patient who has poor
insight in a trial of clozapine because it very quickly can be aborted and you’re back
to square one.

And sorry, there was just one other question. When clozapine is administered, is it
correct that it’s closely monitored for side effects?---Yes. So it has a number of
quite serious side effects. They’re uncommon side effects. But because they’re –
they’re quite serious side effects, particularly, in the early phase where a trial of
clozapine patients are very closely monitored. But, as I say, the difficulty is that
you require the patients’ cooperation, firstly, to take the medication and then to
cooperate with the investigations. And if the patient either stops taking the
medication or refuses to cooperate with the investigations and the trial is aborted.”

[162] Assisting Clinician Dr Iqbal asked Dr Scott at the hearing about other alternative
treatment lines that could be pursued, rather than ECT:

“Certainly there’s – there are other – other antipsychotics that [the

appellant] hasn’t been trialled on yet. So theoretically, she – she could
be tried on all the alternatives – a combination of the alternatives, yes.”

[163] In relation to commencing clozapine treatment again, Dr Scott re-iterated that:

“And just repeating, perhaps, one of the questions which have been
asked, but retrial with clozapine, as you’ve mentioned, yes, there are
risks. She was having neutropenia. She’s on lithium now, and your
views around that – that – like, is a retrial a consideration of that
reasonable approach?---So the treating team obviously have
considered that as an option. They are concerned that not only are there
considerable serious side effects to clozapine, but it requires the
patient’s cooperation. And as I say, the fact that [the appellant] on two
depot antipsychotic medications suggests that the – the treating team
would not be confident that [the appellant] would persist with a trial
of clozapine. And as we know, it’s a major effort to, firstly, start a trial
of clozapine, the – to work up the investigations that are required to
be done and then the monitoring, and then that also relies on the patient
actually taking the medication. At any stage in a retrial of clozapine,
[the appellant] could just say, “Well, I’m not going to take it
anymore,” and, therefore, the trial would be aborted.”
 46

[164] Assisting Clinician Dr Sundin, does not favour a retrial of clozapine or alternative
anti psychotics:

“HER HONOUR: But if it’s available and she does not want ECT,
should it not be considered?
DR SUNDIN: Well, normally - - -
HER HONOUR: And there is going to be negative consequences - - -
DR SUNDIN: Well, not if the negative consequences outweigh the
potential positive benefits and the doctors have gone through the
decision-making pathway and decided that the negative consequences
do outweigh the potential benefits. I would say, for example, someone
who’s on two neuroleptics plus lithium is at high risk for neuroleptic
[indistinct] syndrome. That’s a real risk for someone in this situation.
So then to add in a third anti-psychotic or some other form of
psychotropic only further increases the risk to her physical health and
wellbeing. And doctors are always driven by the golden rule first, do
no harm. So I know it was [indistinct] about this idea of let’s try
another anti-psychotic. No, I’m sorry, that’s – that’s beyond this
court’s remit. That’s up to the treating team.”

[165] Assisting Clinician Dr Iqbal disagrees with this position:

“DR IQBAL: … I fully appreciate, very respectfully, what Doctor

Sundin has said about – that the guidelines have been followed. The
reports don’t actually substantiate that. There have been – she’s been
given [indistinct] and [indistinct] I don’t know for what duration. And
the guidelines also would suggest that if a treatment isn’t effective then
you discontinue that. You go to another one. The numerous second
generation anti-psychotics which haven’t been tried either. So there’s
a gap over there – I’m not saying that they haven’t been tried. What
I’m saying is that the evidence presented – in some ways, I was
thinking that if we had perhaps taken evidence from Doctor [C], and
perhaps even from the patient as well, some of those issues could have
been clarified. But the evidence before us, in my mind, doesn’t fully
substantiate that.
My hunch is that that would have been tried, but it’s a hunch. It’s not
evidence, and I think that, going back to the reports of Doctor [A] and
in fact, my question to Doctor Scott was, 600 milligrams of [indistinct]
that’s not the peak dose of it. [indistinct] milligrams of zuclopenthixol,
even Doctor [G] in his second opinion mentions, increase it to 300
milligrams and then if there is no improvement – and 300 milligrams,
I might be corrected but I trained in the UK where 600 milligrams up
to a week has been prescribed. Not fortnightly, 600 a week. So
duration and dosing seems to me lacking – at least in the evidence
provided. Six months duration would like to see a lot more activity
and consideration in that regard.
 47

I think that there are a couple of things which I’m speculating now,
completely. It’s this notion that when people – so she’s improved to
the extent that she can go on to [indistinct] and having worked in [X],
that’s the less troubled ward. She spent a good chunk of time sitting
over here without being agitated or whatever. So there’s evidence of
improvement, and you feel that you might be playing Jenga if you start
pulling out something and everything comes tumbling down, and I get
that. But it’s not substantiated, is my point. Now, going to the second,
sort of chunk. So I’ve put down - - -
HER HONOUR: What do you say – what do you say is not
substantiated?
DR IQBAL: That enough has been done in terms of the treatment. So
if they’re put down with [indistinct] had been tried, 120 milligrams for
three weeks, no effect. We went onto this, to this. Just a few. At least
three or four, it would have been good. Or even an increase in the
zuclopenthixol, despite the sort of NMS possibility. Absolutely
agreed. But there was a second opinion, there was a recommendation.
Do this and then go onto the next step and then it would be supported.
Saying that, I’m also putting my clinical hat completely separate,
which says, I completely understand why we would want to – totally
agree with that. There are a couple of other things ---
…
So I’ve made the argument around what I think the – and I think that
clozapine would be a way forward. I think having a retrial, and from a
clinical point of view, you go through that – so you go through the
company who usually have their own haematologist who can advise
you. That provides a degree of safety, but consideration of it – and if
it turns out not to be the case, then maybe it gets referred to the tribunal
again. And then they said, “Well, all avenues have been exhausted.”
Well, that bit that it’s the last resorted treatment, I’m just not satisfied.
It may very well have been the case. I’m not convinced from the
evidence that has been provided.
Just, probably what I wanted to say, was these are contentious areas
where there are finely balanced arguments on both sides. At this point
in time, I would have loved that if Dr [C] could say, “Look, we’ve
tried [indistinct] at a higher dose, we’ve written to the clozapine
people and they’re saying definitely not, this is going to kill her.”
…
The reason why I asked about the lithium was that sometimes with
leukopenia on a second trial people with lithium can boost up the
blood cell counts and that’s, at least in England, was a common
practice to do that. But whether there were alternatives that could be
considered. And if they had said all of that, I probably would have
been saying, “Look, if the evidence is very clear that everything has
been considered, this is the last resort treatment and a final [indistinct]
that they did refer this lady to the extended inpatient service.”
 48

And there would be quite a few people of very similar

symptomatology as perhaps any institution would who stay there for
a lot longer and maybe this relapsing and remitting cause of illness
takes its course to the point where they become partially improved
where they can be discharged or they just get fed up with being here
and think that maybe a new epoch in my life should begin. I don’t
know if any of my thoughts have been helpful, your Honour.”

[166] Taking into account the advice given to me by Assisting Clinician Dr Iqbal, I am not
satisfied that there are no other alternative treatments available except for ECT.

[167] Dr Iqbal’s advice in relation to this matter has materially contributed to my decision.

[168] As Dr Iqbal states there is a lack of evidence about this point. ECT applications should
provide comprehensive material as to what medications have been considered and
used or not used and the reasons for doing so.

[169] On 29 March 2023, when this matter was adjourned, Assisting Clinician Dr McVie
stated that:

“The written documentation indicates that there’s no urgent need for

ECT. It’s merely the fact that she has this severe treatment resistance
psychotic illness that may benefit from ECT, but there’s no guarantee
that ECT will actually benefit in this case. Secondly, I’d probably like
to have more information on when her previous trial of clozapine
actually was and whether or not she’s been reviewed by a
haematologist in relation to the likelihood of recurrence of the
leukopenia and neutropenia that she had at that time.”

[170] Dr McVie also wanted to know what the appellant’s levels of lithium have been over
the last few months.

[171] Dr Sundin also noted that at the adjournment application that:

“I agree with Dr McVie that the opinion of a haematologist would be

worthwhile. I have had patients who’ve had bad side-effects with
clozapine on the first instance, but on re-exposure, actually been able
to tolerate it. So a haematologist being involved in her care would be
very wise.”

[172] Dr C stated that he could facilitate these matters. However, no such evidence was
placed before the Court.

[173] Accordingly, I am not satisfied that ECT is appropriate in the circumstances.

 49

[174] The Act recognises the least restrictive practices should always be adopted in respect
of patients. The least restrictive way is if it adversely affects the person’s rights and
liberties only to the extent required to protect the person’s safety and welfare or the
safety of others.63

[175] Further investigation needs to be done to investigate to see if clozapine is appropriate

or other anti-psychotic medications. It may be that once these investigations are
undertaken, and there is evidence that these alternatives are not appropriate, then
another application for ECT to be performed on the appellant may be made to the
tribunal.

[176] In the circumstances I am not satisfied that section 509 (4) (a) has been satisfied.
Accordingly, the application for ECT should be refused.

Orders

1. The appeal is allowed.

2. The tribunal’s decision dated 15 February 2023 to approve 12 treatments of

electroconvulsive therapy (ECT) over a period of 60 days, which was to
commence on the 15 February 2023, is set aside and substituted with the decision
that the application for ECT is refused.

63
Section 3 (3) of the Mental Health Act 2016 (Qld).