PBU & NJE v Mental Health Tribunal

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 02464

PBU	Plaintiff
v
MENTAL HEALTH TRIBUNAL	First Defendant
and
MELBOURNE HEALTH	Second Defendant

S CI 2017 02771

NJE	Plaintiff
v
MENTAL HEALTH TRIBUNAL	First Defendant
and
BENDIGO HEALTH	Second Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 August 2017, 26 April, 8 June, 4 October 2018
DATE OF JUDGMENT:	1 November 2018 (revised 22 January 2019)
CASE MAY BE CITED AS:	PBU & NJE v Mental Health Tribunal
MEDIUM NEUTRAL CITATION:	[2018] VSC 564

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ADMINISTRATIVE LAW – appeal – decisions of Victorian Civil and Administrative Tribunal (‘VCAT’) that two persons with mental illness be compulsorily subjected to electroconvulsive treatment (‘ECT’) – determination that they lacked the capacity to give informed consent to or refuse treatment – whether VCAT properly interpreted and applied requirement that person be able to ‘use or weigh’ information relevant to decision – further requirement that there be no less restrictive way for the person to be treated – whether this requirement only met where treatment immediately needed to prevent serious deterioration in person’s health or serious self-harm or harm to another – ‘capacity to give informed consent’ – Mental Health Act 2014 (Vic) ss 68, 69, 70, 72, 93 and 96.

HUMAN RIGHTS – two persons having mental disability found by VCAT to lack capacity to give informed consent to or refuse ECT – whether incompatible with human rights to self-determination, to be free of non-consensual medical treatment and to personal inviolability – assessing capacity compatibly with those rights and the right to health – applicable principles – dignity of risk – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8(3), 10(c), 13(a), International Covenant on Economic, Social and Cultural Rights art 12(1), Convention on the Rights of Persons with Disabilities arts 12(4), 24.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	E M Nekvapil with A Lord (14 and 15 August 2017, 26 April 2018) and J Taylor (8 June 2018)	Victoria Legal Aid
For the defendants	No appearance
For the Secretary of the Department of Health and Human Services	C M Harris QC	Solicitor for the Department of Health and Human Services

TABLE OF CONTENTS

INTRODUCTION................................................................................................................................................................................ 1

PROCEEDINGS IN VCAT................................................................................................................................................................ 2

PBU v Mental Health Review Board...................................................................................................................................... 2
NJE v Mental Health Review Board....................................................................................................................................... 5

LEGAL ISSUES FOR DETERMINATION................................................................................................................................... 9

Secretary’s applications for intervention.............................................................................................................................. 9
Questions of law and grounds of appeal............................................................................................................................ 12
Determination of common ground 4 and ground 5 (NJE)............................................................................................. 13
Common ground 4........................................................................................................................................................... 13
Ground 5 (NJE)................................................................................................................................................................. 14

Determination of remaining grounds.................................................................................................................................. 16
Issues arising under the Charter........................................................................................................................................... 17

OVERVIEW OF MENTAL HEALTH ACT.................................................................................................................................... 18

Treatment of persons with mental illness......................................................................................................................... 18
Objectives and principles........................................................................................................................................................ 19
Compulsory treatment.............................................................................................................................................................. 20
Assessment orders........................................................................................................................................................... 20
Temporary treatment orders........................................................................................................................................ 21
Treatment orders............................................................................................................................................................. 22

Ensuring treatment for mental illness................................................................................................................................. 23
Seeking, and presuming the capacity to give, informed consent............................................................................... 23

HUMAN RIGHTS OF PERSONS WITH MENTAL DISABILITY................................................................................... 25

Universality and indivisibility of human rights............................................................................................................... 25
Right to health.............................................................................................................................................................................. 30
Charter rights engaged.............................................................................................................................................................. 35
Rights engaged generally.............................................................................................................................................. 35
Equality before the law.................................................................................................................................................. 39
Freedom from non-consensual medical treatment................................................................................................. 43
Privacy…........................................................................................................................................................................... 44

VCAT’s obligations as a public authority under the Charter...................................................................................... 46

CAPACITY TO GIVE INFORMED CONSENT....................................................................................................................... 48

Statutory provisions................................................................................................................................................................... 48
Principles of common law and human rights regarding capacity............................................................................. 49
Self-determination and personal autonomy............................................................................................................. 49
Personal inviolability and the civil/criminal law................................................................................................... 50
Presumption of capacity to give informed consent................................................................................................ 52
Capacity is decision-specific, can fluctuate and may be enhanced with support.......................................... 54
Functional test of capacity to give informed consent............................................................................................ 55
Unwise or unreasonable decisions and the dignity of risk................................................................................... 60
Threshold of capacity and non-discrimination........................................................................................................ 64
Belief and insight in respect of the illness and need for treatment..................................................................... 68
Personal identity and the dignity of recognition.................................................................................................... 75
Establishing capacity..................................................................................................................................................... 76

Summary of principles............................................................................................................................................................. 78
Distinguishing capacity to give from giving informed consent: ss 68 and 69....................................................... 80

DETERMINATION OF NO CAPACITY TO GIVE INFORMED CONSENT.............................................................. 85

Grounds of appeal...................................................................................................................................................................... 85
Contentions of parties............................................................................................................................................................... 86
Belief of and insight into the diagnosis and need for treatment................................................................................ 87
Threshold of capacity and function-based capacity assessments............................................................................. 89

DETERMINATION OF NO LESS RESTRICTIVE TREATMENT.................................................................................... 93

Ground of appeal........................................................................................................................................................................ 93
Statutory provisions................................................................................................................................................................... 93
No less restrictive treatment test........................................................................................................................................... 94
A ‘no less restrictive treatment’ test; not a ‘best interests’ test........................................................................ 94
Views and preferences of patient................................................................................................................................. 96

VCAT decisions in PBU and NJE applying s 96(1)(a)(ii)............................................................................................... 98
Submissions in appeal proceedings.................................................................................................................................. 100
Relevance of purposes of treatment criteria in s 5(b) to less restrictive treatment assessment.................... 101

CONCLUSION.................................................................................................................................................................................. 104

HIS HONOUR:

INTRODUCTION

These two separate appeals under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) raise common issues. PBU and NJE challenge orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) that they be compulsorily subjected to courses of electroconvulsive treatment (‘ECT’).[1] The orders were made under the Mental Health Act 2014 (Vic) after VCAT determined that PBU and NJE lacked the capacity to give (and therefore to refuse) informed consent to the treatment, and that there was no less restrictive way for them to be treated.
[1]As defined in s 3(1) of the Mental Health Act 2014 (Vic), ECT means ‘the application of electric current to specific areas of a person’s head to produce a generalised seizure’.

Under the Mental Health Act, a decision by a compulsory patient to not to have ECT must be legally respected, unless the Mental Health Tribunal (‘MHT’) or (on review) VCAT is satisfied that the patient does not have the capacity to give informed consent. PBU and NJE were compulsory inpatients at hospitals operated by Melbourne Health and Bendigo Health respectively. They both disputed their psychiatrists’ diagnosis that they suffered from schizophrenia. In proceedings in both the MHT and VCAT, an authorised psychiatrist at the hospitals sought, and PBU and NJE opposed, the making of orders for compulsory ECT. The MHT made and VCAT confirmed the orders. The orders were stayed pending appeal.

The ground of these appeals is that VCAT erred in law in determining that PBU and NJE lacked capacity to give informed consent. Among other things, they contend that VCAT misinterpreted the relevant provisions of the Mental Health Act, failed to give effect to their human rights and respect their human dignity as required by the objectives and principles of that Act, and made decisions that were incompatible with their human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). As is usual in appeals of this nature, the hospitals and VCAT took no part in the hearing and the Secretary of the Department of Health and Human Services assisted the court as the official contradictor.

PROCEEDINGS IN VCAT
PBU v Mental Health Review Board

PBU had been hospitalised in a psychiatric unit of a hospital since December 2016. He had been first diagnosed with schizophrenia in 2011 and had been admitted to hospital on a number of occasions. He was the subject of an inpatient treatment order under s 45(3) of the Mental Health Act. He had little family support or social engagement. He displayed limited insight into his psychiatric condition. His medical history is complex and was summarised by VCAT by reference to the evidence given at the hearing and the hospital file, which was in evidence in the proceeding in this court.

In February 2017, VCAT made an order for a course of six ECTs on the application of PBU’s authorised psychiatrist. Five of these were administered in early to late February and PBU’s condition improved dramatically in consequence. He was demonstrating reasonable insight into his present psychotic episode but not into his longer-term schizophrenia condition. After the fifth ECT he was initially agreeable to the treatment continuing.

In late February 2017, PBU was reviewed by an authorised psychiatrist who determined that he had capacity to decide whether he wanted ECT to continue. When PBU stated that he did not, the treatment was stopped.

A further application for ECT was made to the MHT in March 2017. The hospital contended that PBU’s condition had declined. The MHT decided that he did not then require ECT and that the treating team should offer more information to him and explore other treatment options.

On 19 April 2017, on the application of hospital medical staff, the MHT ordered that PBU have a course of up to 12 ECTs in the period 19 April to 23 May 2017. This order was stayed by VCAT when PBU applied for it to be reviewed.

The hearing of PBU’s application in VCAT was held at Northern Hospital on 23 May 2017. 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.

PBU wrote a letter to VCAT and attended the end of the hearing. His evidence was that he did not agree that he had schizophrenia. But he accepted that he had mental health problems. He said he was suffering from depression, anxiety and post-traumatic stress disorder. He was willing to receive psychiatric and psychological treatment for those conditions. PBU did not wish to have ECT or other anti-psychotic medication or treatment, which he did not believe were appropriate or necessary for his condition. He wished to be discharged from hospital to a prevention and recovery facility and then return home, which the medical staff did not support. VCAT’s reasons for decision discuss the evidence of his somewhat erratic behaviour at the time. It found that he spoke very clearly and capably about his views and experiences.

In determining the application for review, VCAT accepted that it was acting as a public authority under s 38(1) of the Charter and also had to interpret the provisions of the Mental Health Act as far as possible consistently with the Charter (s 32(1)). It considered that ‘liberty is a foundational human right’ and that cases of this kind engaged a number of human rights, including the right to freedom from medical treatment without full, free and informed consent (s 10(c) of the Charter), the right to move freely within Victoria (s 12) and the right not to have one’s privacy unlawfully or arbitrarily interfered with (s 13(a)). Citing Kracke v Mental Health Review Board,[2] VCAT stated the limitations on these rights imposed by the Mental Health Act, including in respect of ECT, were reasonable and justifiable under s 7(2) of the Charter.
[2](2009) 29 VAR 1, 158 [784] (Bell J) (‘Kracke’).

Under s 96(1)(a)(i) of the Mental Health Act, VCAT had to decide whether it was satisfied that PBU did not have capacity to give informed consent under s 68(1) and, if so satisfied, whether there was no less restrictive way for him to be treated. As will be discussed in more detail below, s 68(1) specifies four domains of cognitive functioning: understanding information relevant to the decision (para (a)), and the ability to remember (para (b)) and use or weigh that information (para (c)), and communicate one’s decision (para (d)).

VCAT found under para 68(1)(a) that PBU understood information he was given about ECT:

There was no dispute before me that PBU had been given information about ECT and that he understood it in the way described in section 68. In the letter handed up at the hearing, PBU demonstrated that he was aware that ECT is used to treat patients with depression and psychosis, in general terms, how it works and the fact that it can have negative effects and disadvantages. That understanding came in part from his earlier experience with ECT.

VCAT did not specifically apply paras 68(1)(b)–(d). Rather, it 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.

VCAT went on to determine under s 96(1)(a)(ii) that there were no less restrictive treatment options available. In doing so, it rejected a contention made on behalf of PBU that the purposes of the treatment criteria specified in s 5 of the Mental Health Act were relevant to this issue.

NJE v Mental Health Review Board

NJE also suffered from treatment resistant schizophrenia. Since 2004, she had received voluntary and involuntary treatment in the community and in hospital. In 2016, she had several extended involuntary stays in hospital. In January 2017, she was placed on a community treatment order by the MHT, but it was revoked and she was made the subject of an involuntary treatment order. In March, NJE was transferred to the secure extended care inpatient unit at Bendigo Hospital.

Three applications for ECT were made by the Bendigo medical staff. The first was in early March 2017, which was refused by the MHT by reason of legal uncertainties concerning NJE’s detention in hospital. The second was made in late March 2017 and refused because the MHT was not satisfied that NJE lacked capacity to give informed consent (notwithstanding that she displayed no insight into her condition) or that no less restrictive treatment options were available. The third was made in April 2017 and granted by the MHT, which ordered that NJE undergo a course of 12 ECTs. She only had minutes to prepare for this hearing, contacted Victoria Legal Aid the day after, applied to VCAT for a review and obtained a stay of the MHT’s order.

Changes to NJE’s oral medication resulted in a slight improvement in her medical condition in April 2017. At the time of the hearing before VCAT in June 2017, she was compliant with her oral and depot medication regimen. The medical evidence was that she still needed ECT and lacked the capacity to give (or refuse) informed consent, especially because of her grandiose delusions and behaviour.

NJE was legally represented at the hearing, which she attended and in which she participated, including by tendering a letter for VCAT’s consideration.

There had been limited engagement about the proposed ECT treatment between the treating team and NJE. As explained in the evidence of Dr A, who was NJE’s treating psychiatrist, this was because oral discussions distressed NJE and aggravated the antagonism that she felt towards the treating team. It had been determined that providing written information was preferable, which was done in mid-April.

Dr A deposed that NJE could read, understand and remember the information given to her about ECT (paras 68(1)(a) and (b) of the Mental Health Act), but Dr A was of the view that NJE lacked capacity to use and weigh information (para 68(1)(c)). Dr A deposed that:

[T]his was because NJE did not accept that she had treatment resistant schizophrenia or indeed a mental illness. As a consequence, NJE did not understand why ECT had been recommended for her or the possible benefits to her.

Dr A gave evidence of his observations of NJE:

NJE spoke and wrote about her ‘working’, while in hospital, as a licensed and registered Master of a modality known as ‘Melchizedek Method of Healing’. A nurse in attendance at the hearing described NJE as being frequently active and awake during the night and that NJE would explain her state of wakefulness by saying that she was ‘working’ as a psychic healer.
Dr A described NJE experiencing grandiose delusions and hallucinations despite believing that she was not hallucinating. NJE had told Dr A that she did not want ECT because it would interfere with her psychic abilities and her ‘work’ as a healer.

NJE’s legal representative was critical of the hospital treating team. She contended that it should have made greater attempts to engage with NJE in relation to ECT. She submitted that, as late as early March 2017, the MHT had found that NJE had the capacity to make an informed decision notwithstanding her lack of insight. VCAT did not accept this submission.

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.

However, VCAT found under s 68(1)(c) that NJE could not use and weigh information relevant to the decision:

To use and weigh requires a person to carefully consider the advantages and disadvantages of a situation or proposal before making a decision. NJE could not apply herself in that way. Her decision to refuse ECT was made without prior consideration of the advantages or disadvantages. NJE could not use and weigh the information because she could not conceive that it applied to her situation because it was her belief that she did not have a mental illness… It was not that NJE did not understand but rather that she could not be persuaded that the information was relevant to her (italics in original)…

VCAT did not consider that NJE’s capacity to give informed consent would be enhanced by the provision of more or differently formatted information. It 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’.

Moving to whether there was no less restrictive way for NJE to be treated, it was submitted for NJE that the purposes of the treatment criterion in s 5(b) informed consideration of this issue under s 96(1)(a)(ii). VCAT did not proceed in this way but applied the latter provision according to its terms, as had been done in PBU’s case. It is clear from the evidence that NJE did not need immediate treatment to prevent a serious deterioration of her health or harm to herself or others.

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.

VCAT acknowledged NJE’s fears that ECT ‘would interfere with her psychic powers which she values’. But it treated her beliefs about these powers as ‘positive symptoms (hallucinations and delusions that she is able to treat and cure others) …’. In the analysis of whether no less restrictive treatment option was available, NJE’s beliefs in this connection constituted a consideration in favour of ECT:

I read with concern the reports which described NJE’s fixed delusions. NJE spends several nights per week without sleep believing that she is working and that she has psychic healing powers.[3]

[3]The evidence was that she was frequently active and awake during the night: see above.

In rejecting NJE’s preference for maintaining the present treatment as a less restrictive option, VCAT held that s 93(2)(a) required that it ‘consider NJE’s views and preferences in respect of any “beneficial” alternative treatments’ (emphasis in original). Taking into account the definition of ‘treatment’ in s 6(a) and following the decision of VCAT in PBU’s case, it held that the treatment had to be one that remedied or alleviated the symptoms and reduced the effects of the person’s mental illness.

VCAT accepted the medical evidence that multiple anti-psychotics had been unsuccessful in treating NJE. As the least restrictive option, it accepted the treating team’s proposal of ECT followed by a trial of Clozapine (with appropriate blood testing) followed by engagement with NJE about the ‘lifestyle choices’ that she made in the community, which would only be possible after her health likely stabilised after ECT.

VCAT did not accept the submission made for NJE that the least restrictive treatment option was to act on her improved mental state and allow her current less restrictive medication to continue. It held that NJE was still experiencing negative and positive symptoms by reason of her mental illness and that ECT offered the best hope of the optimum therapeutic outcome, and promotion of recovery[4] and full participation in community life.
[4]On the significance of the concept of recovery in the statutory scheme, see below.

LEGAL ISSUES FOR DETERMINATION
Secretary’s applications for intervention

The Secretary applies:

·to be joined as an intervener in the two proceedings pursuant to r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic);
·alternatively, to be joined as an amicus curiae (friend of the court) in the proceedings pursuant to the court’s inherent jurisdiction.

PBU and NJE oppose the primary applications and do not oppose the alternative applications.

The Secretary was not a party to the proceedings before the MHT and VCAT. In the proceedings before the MHT, the parties were PBU and NJE on the one side and the hospitals on the other side. In the proceedings before VCAT, the parties were PBU and NJE on the one side and the MHT and the hospitals on the other side.

The parties in the appeal proceedings in this court reflect the position in the proceedings before VCAT. PBU and NJE stand on the one side and the MHT and the hospitals stand on the other side.

As is usual and appropriate, the MHT has filed submitting appearances in accordance with R v Australian Broadcasting Tribunal; Ex parte Hardiman.[5]
[5](1980) 144 CLR 13, 35–6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

For whatever reason, hospital parties in proceedings like the present sometimes take no part, leaving the patient to run the case. This has occurred in the present proceedings. However, in order to ensure that legal issues are fully addressed, it is common, with the leave of the court, for the Secretary to perform the role of proper contradictor in proceedings that take this course.

Understandably, the Secretary would prefer to be joined as an intervener in these proceedings under r 9.06, because this would mean that the Secretary would have all the rights of a party, including appeal rights.[6] But the authorities make very clear that joinder on this basis can only be ordered where the applicant’s legal interests would be directly affected by the outcome of the proceeding.[7] On no view is this so in relation to the Secretary in the present cases and therefore the applications for joinder of the Secretary as an intervener under r 9.06 must be refused.
[6]Priest v West (2011) 35 VR 225, 232–3 [30] (Maxwell P, Harper JA and Kyrou AJA) (‘Priest’).
[7]Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37, 38–9 [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (‘Roadshow Films’), citing Levy v Victoria (1997) 189 CLR 579, 600–5 (Brennan CJ) (‘Levy’); Priest (2011) 35 VR 225, 232 [29] (Maxwell P, Harper JA and Kyrou AJA).

It is different with applications to be heard as amicus curiae (friend of the court). The grant of leave for a person to appear in this way ‘is not dependent upon the same conditions in relation to legal interests as the grant of leave to intervene’.[8] In Priest v West, Maxwell P, Harper JA and Kyrou AJA set out the following principles by way of guidance in relation to the granting of such leave:[9]
[8]Roadshow Films (2011) 248 CLR 37, 39 [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
[9](2011) 35 VR 225, 233–4 [31]–[35].

The court has a broad discretion to allow a person to appear as a friend of the court.[10] Where it is in the interests of justice to do so, the court can hear a friend of the court by allowing him or her to make oral submissions or to file written submissions, or to do both.[11] Only in an exceptional case will a friend of the court be permitted to adduce evidence or to raise a new issue or special defence.[12]
[10]Levy (1997) 189 CLR 579, 604; Karam v Palmone Shoes Pty Ltd [2010] VSCA 252 (29 September 2010) [3].
[11]United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, 534 (‘United States Tobacco’); Levy (1997) 189 CLR 579, 604–5; Breen v Williams (1994) 35 NSWLR 522, 532–3 (‘Breen’); Re BWV; Ex parte Gardner (2003) 7 VR 487, 490–1 [12]–[17] (‘BWV’).
[12]Re Medical Assessment Panel; Ex parte Symons (2003) 27 WAR 242, 250 [20].
The court’s power to grant such leave is not limited to any particular individuals or organisations or to any particular types of cases or circumstances.[13] The individuals or organisations may include the holder of a non‑governmental office,[14] a Minister of the Crown,[15] a public interest body,[16] or a professional organisation.[17]
[13]United States Tobacco (1988) 20 FCR 520, 535.
[14]See, eg, BWV (2003) 7 VR 487, 490 [16] (Catholic Archbishop of Melbourne); R v Murphy (1986) 5 NSWLR 18, 24–5 (President of the Senate).
[15]For example, Domaszewicz v State Coroner (2004) 11 VR 237, 242 [20] (Attorney-General); Y v Austin Health (2005) 13 VR 363, 366 [11]–[12] (Attorney-General); Zukanovic v Magistrates’ Court of Victoria [2011] VSC 141 (20 April 2011) [26] (Attorney-General).
[16]BWV (2003) 7 VR 487, 490 [15]–[16] (Right to Life Australia Inc and Catholic Health Australia Inc); Breen (1994) 35 NSWLR 522, 532–3 (Public Interest Advocacy Centre); Levy (1997) 189 CLR 579, 593 (Australian Press Council); Commonwealth v Tasmania (1983) 158 CLR 1, 50–1 (Tasmanian Wilderness Society); National Australia Bank v Hokit Pty Ltd (1996) 39 NSWLR 377, 380 (Consumers Federation of Australia) (‘Hokit’).
[17]Levy (1997) 189 CLR 579, 593 (Media, Entertainment and Arts Alliance).
Ordinarily, the court will not grant such leave unless it is of the opinion that the person will be able to assist the court in a way that the court would not otherwise have been assisted.[18] Even when that criterion is satisfied, the court will need to be persuaded that the grant of leave will not result in additional costs to the parties, or delay in the proceeding, which would be disproportionate to the assistance expected to be derived.[19]
[18]Ibid 604–5. See, eg, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 359.
[19]Levy (1997) 189 CLR 579, 604–5.
Matters to be considered in determining whether to grant leave to a person to appear as a friend of the court include:
(a)whether the intervention is apt to assist the court in deciding the instant case;

(b)       whether it is in the parties’ interest to allow the intervention;
(c)       whether the intervention will occupy time unnecessarily;
(d)whether the intervention will add inappropriately to the costs of the proceeding.[20]

The assistance of a friend of the court may be indispensable if there would otherwise be no proper contradictor. That appears to have been the basis upon which the Victorian Attorney-General was granted leave to appear in Re BWV; Ex parte Gardner[21] and in Domaszewicz v State Coroner.[22]

[20]Hokit (1996) 39 NSWLR 377, 381.

[21](2003) 7 VR 487, 490 [13].

[22](2004) 11 VR 237, 242 [20].

Applying these principles in the present case, I grant leave to the Secretary in both proceedings to appear as amicus curiae (friend of the court). The legal issues raised in the appeals are complex and have considerable public importance, especially in relation to the interaction between the Mental Health Act and the Charter in the context of compulsory ECT and of assessing the capacity of persons with mental illness to give informed consent. Without participation by the Secretary, there would be no proper contradictor in either proceeding. By reason of the Secretary being responsible for the administration of the Mental Health Act, the Secretary has expertise in relation to the interpretation and application of that Act, and also its interaction with the Charter. The court has been substantially assisted by the Secretary’s submissions. In the circumstances, the submissions have been indispensable.

Questions of law and grounds of appeal

Section 148(1)(b) of the Victorian Civil and Administrative Tribunal Act permits a party to appeal against an order of VCAT only on ‘a question of law’. The jurisdiction of the court in such appeals is confined to the determination of a question of law.[23] Leave to appeal is required and here will be granted in both cases. Having regard to the issues raised in the appeals, this is plainly called for by the governing principles.[24]
[23]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ).
[24]See Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335-7 (Phillips JA, Tadgell and Batt JJA agreeing); Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 55-7 [28]-[31] (Warren CJ, Chernov JA and Bell AJA agreeing)

Drawing upon questions of law specified in the proposed notices of appeal, PBU and NJE identified four common grounds of appeal. These were grounds 1, 2, 4 and 5 in the case of PBU (which corresponded to grounds 1, 2, 4 and 3 respectively in the case of NJE) as follows:

1.The Tribunal erred by failing to apply the test for ‘capacity to give informed consent’ in s 68(1) of the MH Act, but instead applying the different test whether PBU accepted the diagnosis for which ECT was proposed.
2.The Tribunal must have misunderstood ss 68(1) and 96(1)(a)(i) of the MH Act: on the facts as found, had it correctly understood s 68(1), the Tribunal could not have concluded that PBU ‘[did] not have the capacity to give informed consent’ to ECT, within the meaning of s 96(1)(a)(i).
…

4.Alternatively to Grounds 1 and 2, the Tribunal’s reasons failed to comply with s 117 of the VCAT Act, or were otherwise inadequate, because they did not disclose how the Tribunal applied the test in s 68(1) of the MH Act to the facts as found such as to conclude that PBU ‘[did] not have the capacity to give informed consent’ to ECT, within the meaning of s 96(1)(a)(i).
5.The Tribunal erred by concluding that continuing with the same treatment was not a ‘less restrictive way for the patient to be treated’ because it would ‘amount to a failure to provide the treatment’ required by s 72 of the MH Act, being treatment for the purposes identified in ss 6(1)(a) and 11(1)(b) of the MH Act, unconstrained by s 5(b).

In PBU, the following further ground of appeal was identified:

3.(a) Before making the Order, the Tribunal was required to consider what matter in s 68(1)(a), (b), (c) or (d) satisfied it that the criterion in s 96(1)(a)(i) was met. It failed to do so.
(b)The rights conferred by ss 8(2) and (3), 10(b) and (c), 13, 14(1), 15(1), 21(1) and 22(1) of the Charter were relevant in the decision made by the Tribunal. The Tribunal failed to give proper consideration to those rights, within the meaning of s 38(1) of the Charter, because it failed to consider, expressly or at all, each of the matters in ss 68 and 69 in determining that PBU ‘[did] not have the capacity to give informed consent’ to ECT, within the meaning of s 96(1)(a)(i).

In NJE, the following further grounds of appeal were identified:

5.The Tribunal misconstrued and misapplied s 68(1)(c) of the MH Act by asking whether the Plaintiff could ‘use and weigh’ the information, when the correct test was whether the Plaintiff was not able to ‘use or weigh’ the information, and consequently the Tribunal failed to consider whether the Plaintiff was not able to do one, or the other, but not both.
6Alternatively to ground 1, the Tribunal erred by directing itself that s 68(1)(c) ‘requires a person to carefully consider the advantages and disadvantages of a situation or proposal before making a decision’.[25]
[25]NJE was granted leave to add this ground.

Determination of common ground 4 and ground 5 (NJE)
Common ground 4

Under common ground 4, PBU and NJE contend that VCAT erred in law by failing to comply with its obligation in s 117(1) of the Victorian Civil and Administrative Tribunal Act to give adequate reasons for decision. As a decision under s 96(1)(a)(i) of the Mental Health Act involves the application of the criteria specified in s 68(1)(a)–(d), VCAT was required by s 117(5) of the Victorian Civil and Administrative Tribunal Act to include in its reasons its findings of fact in relation to each of these criteria, which it did not do. Reciting the evidence was not itself sufficient. The submissions acknowledged that VCAT’s reasons for decision in the case of NJE were more specific in detail than its reasons in the case of PBU.

The Secretary submitted that VCAT was required to conduct the proceeding with as little formality and technicality, and as much speed, as possible (s 98(1)(d) of the Victorian Civil and Administrative Tribunal Act). Its primary obligation under s 117(1) and (5) was to give reasons disclosing the path of its reasoning, which it fulfilled. The evidence was not simply recited but was evaluated. The criteria in s 68(1)(a)–(d) of the Mental Health Act were identified and applied. It was not necessary for the consideration and analysis to be related to each and all of the specified criteria. The relevant factors were discussed and necessary findings were made.

The general principles were not in dispute and generally described in Remanet Pty Ltd v Georgescu.[26] Applying those principles, I do not accept the submissions made for PBU and NJE and accept the submissions made for the Secretary under this ground. The reasons for decision in both cases disclose the path of VCAT’s reasoning and why it found that PBU and NJE lacked the capacity to give informed consent. Reading the reasons for decision fairly, in context and as a whole,[27] this conclusion can be readily comprehended and related to the findings made, although it was vitiated by errors of law that I will later examine.
[26][2017] VSC 367 (23 June 2017) [8] (Ierodiaconou AsJ).
[27]Shock Records Pty Ltd v Jones [2006] VSCA 180 (7 September 2006) [85] (Bell AJA, Callaway and Ashley JJA agreeing); Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121 (8 June 2006) [3] (Ashley JA), [19]–[22] (Redlich JA).

Common ground 4 will therefore be rejected.

Ground 5 (NJE)

The submissions made for NJE under ground 5 were based on VCAT’s reference to the criterion in s 68(1)(c) as being that the person had to be able to ‘use and weigh’ (italics in original in reasons for decision) the relevant information. The expressed criterion is actually that she be able to ‘use or weigh’ (italics added) the information.

It was submitted for NJE that it was sufficient under s 68(1)(c) for the person to be able to use or weigh the information. The two processes of cognition are different. ‘Using’ is broader than ‘weighing’, and either is sufficient. VCAT erred in law by adopting a more stringent test that addressed whether NJE had the ability to undertake both forms of cognition.

The Secretary submitted that VCAT correctly stated the terms of s 68(1)(c) earlier in its reasons. Read fairly as a whole, the reasons reveal that it correctly applied the test in that provision, despite substituting the word ‘and’ for the word ‘or’ in some places. These submissions should be accepted.

The words in s 68(1)(c) of the Mental Health Act are ‘use or weigh’ not ‘use and weigh’ (emphasis added), as in the parent provision in s 3(1)(c) of the Mental Capacity Act 2005 (UK). The extrinsic materials do not assist in identifying the intended meaning of these words, which must be interpreted by reference to the actual language used, having regard to their purpose and context.[28]
[28]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, [4] (French CJ), [47] (Hayne, Heydon, Crennan and Kiefel JJ).

I do not think these words express a single idea such that it does not matter whether one says ‘use or weigh’ or ‘use and weigh’. Meaning must be given to each of the words. The verb ‘use’ relevantly means ‘to employ for some purpose; to put into service; turn to account’ and ‘to avail oneself of; apply to one’s own purposes’.[29] The verb ‘weigh’ relevantly means ‘balance in the mind’.[30] I reject a meaning like ‘carefully balance in the mind’ because the context is a provision that specifies a capacity test in which careful weighing is not required (see below).
[29]Macquarie Dictionary (Macquarie Dictionary Publishers, 7^th ed, 2017) vol 2, 1653.
[30]Ibid 1702.

The real question is whether the particle ‘or’ is used in the disjunctive or the conjunctive sense. I think the answer is that it is used in either or both senses depending on the circumstances. Certain information relevant to the decision is capable of being used; other information is capable of being weighed; and other information is capable of being both used and weighed. The expression ‘use or weigh’ requires the person to be capable of using or weighing information relevant to the decision depending upon the circumstances, particularly the nature, purpose and effect of the treatment decision and the nature and content of the information. Depending upon those circumstances, it may be necessary for the person to be capable of doing one or the other or both.

Because s 68(1)(c) has an application that depends upon the circumstances, it is perfectly natural to refer to the specified capability in terms of ‘using or weighing’ and ‘using and weighing’, as VCAT did. It will be seen below that some English judges have done the same thing in relation to the parent legislation. The important thing is that, having regard to the nature, purpose and effect of the treatment decision and the nature and content of the relevant information, VCAT properly determines whether the person is able to use or weigh the information.

In the case of NJE, VCAT approached the application of the test in s 68(1)(c) upon the basis that NJE had to be able to both use and weigh the information. In the circumstances, NJE had to be able to do so, indeed the relevant information could not be used without being weighed (but only to the low threshold of capacity that is stipulated (see below)). In applying the capacity test in s 68(1)(c), VCAT did not err in this respect, although it did in others.

Ground 5 (NJE) will therefore be rejected.

Determination of remaining grounds

Having regard to the way in which the appeals were run, the many substantive and subsidiary issues of law raised by the remaining grounds of appeal may fairly and adequately be stated as follows:

(1)Whether VCAT erred in law in interpreting and applying the ‘capacity to give informed consent’ test referred to in s 96(1)(a)(i) of the Mental Health Act.
(2)Whether VCAT erred in law in interpreting and applying the ‘no less restrictive way for the patient to be treated’ test specified in s 96(1)(a)(ii).

The legal issues raised under para (1) relate to common grounds 1 and 2, ground 3(a) (PBU) and ground 6 (NJE). The legal issues in para (2) relate to common ground 5. Determination of those legal issues will determine those grounds. It will not be necessary to determine any other grounds.

Issues arising under the Charter

In the appeals of both PBU and NJE, notices were served on the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission under s 35(1)(a) of the Charter. These specified questions of law arising with respect to the application of the Charter to the operation of the Mental Health Act and the interpretation of the provisions of that Act in accordance with the Charter.

The notice served in the case of PBU specified the following questions arising under the Charter:

3.A question arises with respect to the interpretation of ss 68(1) and 96(1)(a)(i) of the Mental Health Act 2014 (Vic) (the Mental Health Act) in accordance with s 32 of the Charter, read together with ss 8(2) and (3), 10(b) and (c), 13, 14(1), 15(1), 21(1) and/or 22(1) of the Charter. That question arises from the questions of law and grounds of appeal numbered 1, 2 and 3(a) in the Proposed Notice of Appeal.
4.A question arises with respect to the interpretation of s 96(1)(a)(ii) of the Mental Health Act in accordance with s 32 of the Charter, read together with ss 8(2) and (3), 10(b) and (c), 13, 14(1), 15(1), 21(1) and/or 22(1) of the Charter. That question arises from the question of law and ground of appeal numbered 5 in the Proposed Notice of Appeal.
5.A question of law arises that relates to the application of s 38(1) of the Charter to VCAT. That question arises from the question of law and ground of appeal numbered 3(b) in the Proposed Notice of Appeal.

The notice served in the case of NJE specified the same questions as specified in paras 3 and 4 of this notice, but in reference to grounds 1, 2 and 3 respectively of her notice of appeal. These issues arising under the Charter, as developed in oral submissions, will be addressed throughout this judgment.

I will begin with an overview of the Mental Health Act.

OVERVIEW OF MENTAL HEALTH ACT
Treatment of persons with mental illness

The central purpose of the Mental Health Act is to establish ‘a legislative scheme for the assessment of persons who appear to have mental illness and for the treatment of persons with mental illness’ (s 1(a)). As defined in s 4(1), ‘mental illness’ is a ‘medical condition that is characterised by significant disturbance of thought, mood, perception or memory’. To ensure that persons are protected from discrimination in the application of the Act, a person is not considered to have a mental illness by reason only because they exhibit the behaviours or possess the attributes specified in s 4(2). Similar protections apply in relation to assessing capacity (s 68(2)(c), set out below).[31]
[31]The Charter affords additional protection against discriminatory application of the provisions: see below.

When the legislative conditions are satisfied, the person may be subjected to compulsory treatment[32] under a temporary treatment order (s 45) or a treatment order (s 52). The gateway to the application of these powers is kept by the ‘treatment criteria’ specified in s 5. These are that:
[32]Under s 3(1), ‘treatment’ has the meaning given in s 6.

(a) the person has mental illness; and
(b)because the person has mental illness, the person needs immediate treatment to prevent—
(i)serious deterioration in the person's mental or physical health; or

(ii) serious harm to the person or to another person; and
(c)the immediate treatment will be provided to the person if the person is subject to a Temporary Treatment Order or Treatment Order; and
(d)there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

Neither a temporary treatment order (s 46(1)(b)) nor a treatment order (s 55(1)(a) and (b)) can be made with respect to a person to whom the treatment criteria do not apply.

The treatment criteria require that the person actually has a mental illness by reason of which immediate treatment of a particular kind is required, will be given and cannot reasonably be avoided. The treatment must be needed, indeed immediately needed. It must be needed for either of the specified purposes, which are to prevent not just any but a serious deterioration of the person’s health and not just any but serious harm to the person or another person. A utility criterion requires that the treatment will be provided to the person under the order. No less restrictive means must be reasonably available to enable the person to receive the immediate treatment. As a safeguard, the treatment criteria are of continuing significance: where a temporary treatment order or a treatment order is made and an authorised psychiatrist determines that the criteria no longer apply to the person, the authorised psychiatrist must immediately revoke the order (s 61).

As regards the exercise of legal capacity, the main human rights of people with mental illness are the right to self-determination, to be free of non-consensual treatment and to personal inviolability (see below). Where the provisions of the Mental Health Act authorise compulsory medical treatment or other interference with those rights, it is intended that this be justified according to contemporary human rights standards, including the least infringement principle. The objectives in s 10[33] express this intention, as do the mental health principles in s 11(1).[34] All mental health service providers[35] and all persons performing any duty or function or exercising any powers under or in accordance with the Act are required to have regard to these principles (s 11(2) and (3)).
[33]See especially s 10(c).
[34]See especially s 11(1)(e).
[35]A mental health service provider is defined in s 3(1) to mean:
(a) a designated mental health service; or
(b) a publicly funded mental health community support service.
A designated mental health service is defined in that section to mean the specified hospitals and the Victorian Institute of Forensic Medicine.

Objectives and principles

Reflecting the central purpose of the Mental Health Act (s 1(a)), the objectives in s 10 and the principles in s 11(1) seek to ensure that persons with mental illness have access to the treatment they need for their mental illness. As specified in s 11(f):

(f)persons receiving mental health services should have their medical and other health needs, including any alcohol or other drug problems, recognised and responded to; …

Consistently with the right to self-determination, to be free of non-consensual medical treatment and to personal inviolability, the objectives and principles emphasise enabling and supporting decision-making, and participation in decision-making, by the person (ss 10(d) and (g), 11(1)(c)), including the exercise of the dignity of risk (s 11(1)(d)). There is emphasis on respecting the views and preferences of the person in relation to decisions about their assessment, treatment and recovery (s 11(1)(c)). Together with the operative provisions of the Mental Health Act, the objectives and principles are intended to alter the balance of power between medical authority and persons having mental illness in the direction of respecting their inherent dignity and human rights.

Compulsory treatment
Assessment orders

Compulsory treatment of persons having mental illness depends upon them first being assessed for that treatment pursuant to an assessment order. The criteria for making an assessment order are directed at whether a person appears to have a mental illness and therefore appears to need immediate preventative treatment, whether the person can be assessed if an order is made and there is no less restrictive assessment option reasonably available (s 29). Certain procedures must be followed (see generally div 1 of pt 4) which do not here require examination.

If an assessment order is made in relation to a person, the treatment may be compulsorily given, and the person may also be taken to and detained in a hospital, pursuant to a temporary treatment order or a treatment order, where the conditions are satisfied (s 28). Temporary treatment orders are made by authorised psychiatrists (s 45(1)). Treatment orders are made by the MHT on the application of an authorised psychiatrist (ss 54(1) and 55(1)).

Temporary treatment orders

There are two kinds of temporary treatment orders: a community temporary treatment order, which authorises treatment of the person in the community; and an inpatient temporary treatment order, which authorises taking and detaining the person to and in a hospital for treatment (s 45(2) and (3)). Consistently with the principle of least restriction, an inpatient temporary treatment order can only be made if the authorised psychiatrist is satisfied that the treatment cannot occur within the community (s 48(3)). Temporary treatment orders have a normal duration of 28 days (s 51(1)). To protect the integrity of the temporary treatment process, the legislation separates it from the assessment process: a temporary treatment order can only be made by an authorised psychiatrist who did not make the relevant assessment order (s 47).

It is at the temporary treatment stage that a person having mental illness might first be compelled to undergo compulsory treatment and possible detention. Therefore, at this point, the legislation introduces certain foundational criteria, which are later drawn upon and developed, to govern decision-making in relation to these questions.

Under s 46(1), a temporary treatment order may be made if the authorised psychiatrist:

(aa)before examining the person, to the extent that is reasonable in the circumstances—
(i)has informed the person that the person will be examined by the authorised psychiatrist; and
(ii)has explained the purpose of this examination to the person; and

(a) has examined the person; and
(b) is satisfied that the treatment criteria apply to the person.

As specified in s 5 (see above), the treatment criteria are that the person actually has mental illness, that the person actually needs immediate treatment because of this illness and that the treatment will be provided if the order is made, and no less restrictive treatment option is available.

Under s 46(2)(a), when determining whether the treatment criteria apply to the person, the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard (among other things) to:

(i)the person's views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve.

Consistently with respect for the right to self-determination, to be free of non-consensual treatment and to personal inviolability of persons having mental illness, the legislation treats the person’s views and preferences as mandatory relevant considerations in relation to whether a temporary treatment order should be made, despite the mental illness.[36] A view or preference is not excluded from consideration because the person has that illness, whether or not the view or preference is associated with it.
[36]The same considerations apply when determining whether to make a community temporary treatment order or an inpatient temporary treatment order (s 48(2)).
Treatment orders

As with the temporary treatment order, there are two kinds of treatment orders: a community treatment order, which authorises treatment of the person in the community; and an inpatient treatment order, which authorises taking and detaining him or her in a hospital (s 52(1)–(3)). The MHT can only make an inpatient treatment order if satisfied that the treatment of the person cannot occur in the community (s 55(3)). Treatment orders remain on foot for the period specified in the order, which must normally not exceed 12 months for a community treatment order and six months for an inpatient treatment order in the case of an adult person (s 57(1) and (2)).[37]
[37]The maximum period is 3 months for both in the case of persons under the age of 18 years: s 57(2)(b).

The MHT may make treatment orders on the application of an authorised psychiatrist who must first examine the person and be satisfied that the treatment criteria apply to the person (s 54(1)(a) and (b)). It can only make a treatment order after conducting a hearing and must satisfy itself independently that the treatment criteria apply to the person (s 55(1)(a)). Otherwise, the order to which the person is currently subject must be revoked (s 55(1)(b)). In exercising these powers, the MHT must take into account the person’s views and preferences (among other things) (s 55(2)(a)).

Ensuring treatment for mental illness

Part 5 of the Act makes provision for the treatment of persons having mental illness. Treatment of persons having mental illness is predicated upon the fundamental principle expressed in s 72 that a person who is subject to a temporary treatment order or a treatment order ‘is to be given treatment for his or her mental illness in accordance with the Act’,[38] which reflects the prominence of the legislative purpose of ensuring access by persons with mental illness to health treatment (see further below). By the definition of ‘treatment’ in s 6(a) and other provisions of the Act, the treatment must be medically beneficial to the person, which necessarily involves the exercise of medical and like professional expertise. Treatment of the mental illness so that the person may recover health and wellbeing as far as possible is the primary focus of the Act. The framework in pt 5 is directed at ensuring that this treatment is provided having regard to the dignity and human rights of the person. Therefore, emphasis is placed upon the need to obtain informed consent for treatment from persons having the capacity to give it, and providing treatment without that consent only in strictly limited circumstances after consideration of whether no less restrictive treatment is available and the person’s views and preferences.
[38]Section 72 refers to a ‘patient’, which is defined in s 3(1) to include persons subject to such orders.

Seeking, and presuming the capacity to give, informed consent

It would be discriminatory and a grave violation of human rights to regard a person having mental illness as lacking capacity to give informed consent merely because the person has that illness and the legislation does not operate upon this basis. Section 70(2) provides that anyone seeking the informed consent of another to treatment or medical treatment must presume that the other person has the capacity to give informed consent. This is the position under the common law (see below) and applies to an authorised psychiatrist who considers that a person needs treatment for mental illness. Before treatment or medical treatment is administered, ‘the informed consent of the person must be sought’ (s 70(1)), unless the person does not have the capacity to give that consent at the relevant time (s 70(3)).

If the treatment does not involve ECT or neurosurgery,[39] the authorised psychiatrist may make a compulsory treatment decision if satisfied that no less restrictive treatment option is available (s 71(3)), even if the person has capacity to give informed consent and refuses to give it. In so determining, the authorised psychiatrist must have regard (among other things) to:

(a)the patient's views and preferences about treatment of his or her mental illness and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve.

[39]‘Neurosurgery for mental illness’ is defined in s 3(1) to mean various kinds of specified surgery and like internal treatment of the brain. Neurosurgery not for mental illness is not contemplated by the legislation.

If the treatment does involve ECT, the authorised psychiatrist cannot cause it to be administered but must apply to the MHT for that authorisation under s 93(1). The MHT (and VCAT on review) must grant the application if satisfied that the patient does not have the capacity to give informed consent (s 96(1)(a)(i)) and that there is no less restrictive way for the patient to be treated (s 96(1)(a)(ii)). The MHT cannot grant such an application if the person has capacity to give informed consent and refuses to give it (s 96(1)(b)).

It follows that, where a person who has capacity to give informed consent refuses to give it, the person may be subjected to compulsory treatment or medical treatment if the conditions are satisfied, unless it is ECT (or neurosurgery), in which case the person’s decision to refuse to have the treatment must be absolutely respected. As informed consent for treatment and medical treatment must be sought unless the person does not have capacity to give it (s 70(3)), and ECT can only be compulsorily imposed upon a person who does not have the capacity to give informed consent (s 96(1)(a) and (b)), whether a person has this capacity is a critical consideration in relation to treatment that is ECT. That was the position of PBU and NJE before the MHT and VCAT in the present cases.

If the treatment involves neurosurgery for mental illness, the authorised psychiatrist can cause it to be administered (s 100(1)) but must first apply to the MHT for this authorisation (s 100(2)). The authorisation cannot be given unless the MHT is satisfied that that person has given informed consent in writing and the surgery will benefit the person (s 102(2)(a) and (b)).[40] Under s 69(1)(a), a person can only give informed consent if the person has the capacity to do so under s 68. Therefore, differently to ECT, neurosurgery cannot be compulsorily imposed upon a person who has refused to have it or lacks the capacity to give informed consent to it.
[40]Section 102(3) specifies considerations that must be taken into account.

Persons with mental disability have human rights that inform the interpretation and application of the relevant provisions of the Mental Health Act, consistently with its expressed purposes, objectives and principles (see above). To those rights I now turn.

HUMAN RIGHTS OF PERSONS WITH MENTAL DISABILITY
Universality and indivisibility of human rights

As human rights apply universally to all people equally, a person with mental disability has the same rights as other persons and, importantly for the present case, ‘a person who lacks capacity has the same human rights as a person who does not lack capacity’.[41] Preambular para (c) of the Convention on the Rights of Persons with Disabilities (‘CRPD’) reaffirms both ‘the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination.’[42] Drawing on the CRPD, Baroness Hale DPSC (Lord Neuberger, Lord Sumption and Lord Kerr JJSC agreeing) said in Surrey County Council v P (SC(E)) that the universal character of human rights and the equal application of these rights to people with mental disabilities is ‘founded on the inherent dignity of all human beings’.[43]
[41]Cambridge University Hospitals NHS Foundation Trust v BF [2016] EWCOP 26 (18 May 2016) [27] (MacDonald J), citing Surrey County Council v P (SC(E)) [2014] AC 896, 919 [45] (Baroness Hale DPSC, Lord Neuberger PSC, Lord Sumption and Lord Kerr JJSC agreeing) (‘Surrey County Council’).
[42]Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) preambular para (c).
[43][2014] AC 896, 919 [45].

So it is with the Charter where, in the Preamble, the following principle (among others relevant) is stated:

•Human rights belong to all people without discrimination, and the diversity of the people of Victoria enhances our community; …

Section 6(1) provides that ‘[a]ll persons have the human rights in Part 2’, and ‘person’ is defined in s 3(1) to mean ‘a human being’. Under the preambular principles of the Charter, to which the operative provisions give effect, people with mental disability not only have human rights that are equal to all others but form part of the diversity that makes up and enhances the Victorian community.

It was not always so. There was once a time when people with mental disability were feared as lunatics, pitied as imbeciles and detained in rural asylums far away from public view and private conscience. Many were treated without respect or regard for the dignity of their humanity, for their right to self-determination, to be free of non-consensual medical treatment and to personal inviolability, and for their need to access medical treatment. Too often their fate was one of discriminatory exclusion from vital aspects of personal, social and productive life, and continuing ill-health.

This description of the problem, which has been the subject of so much contemporary mental health reform, including the Mental Health Act, is apposite in the present case because it necessarily implies that, in human rights terms, neither civil and political rights nor economic, social and cultural rights can supply an adequate single solution. When it comes to deciding such questions as assessing capacity and providing compulsory treatment to persons with mental disability, a one-dimensional focus ignores the fact that human rights are not just universal but ‘indivisible, interdependent and interrelated’. As a disability scholar has written of the CRPD, which is a treaty that specifies rights in both categories:

Perhaps more than any other human rights treaty, the [CRPD] has demonstrated the falseness of the dichotomy between civil-political and social-economic rights. This chasm has to be closed at both ends. Just as some civil-political rights, such as the freedom of speech and expression, are meaningless without reasonable accommodation of the physical infrastructure; other social-economic rights, such as the right to health, become oppressive without informed consent and freedom of choice.[44]

[44]Amita Dhanda, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future’ (2007) 34 Syracuse Journal of International Law and Commerce 429, 456-7; see also Penelope Weller, ‘Health Law and Human Rights: Towards Equality and the Human Right to Health’ in Ian Freckelton and Kerry Peterson (eds), Tensions and Traumas in Health Law (Federation Press, 2017) 21–2.

The present cases raise for determination important legal issues about the interpretation and application of the capacity test and treatment assessment provisions of the Mental Health Act as informed by human rights specified in the Charter, especially the rights of self-determination, freedom from non-consensual medical treatment and personal inviolability, which are civil and political in character. But it would be artificial to confine the analysis to rights of that kind, and contrary to the purposes of the Mental Health Act.

Like everybody else, people with mental disability need reasonable health and access to medical treatment and health services as a pre-requisite for full and equal participation in life in all of its personal, social and productive dimensions. Our mental health legislation is directed at the fundamental purpose of ensuring that people with mental disability receive the health and other treatment they need. As this purpose[45] and its associated principles[46] also inform the interpretation and application[47] of the capacity and treatment assessment provisions of the Mental Health Act, these too need consideration (see below).
[45]Mental Health Act s 10(a).
[46]Ibid s 11(1)(a), (b), (f).
[47]Ibid s 11(2), (3).

The obligations specified in the CRPD relate to both civil and political rights and economic, social and cultural rights, and give effect to the principle of universality and indivisibility of human rights reaffirmed in preambular para (c) (see above). The obligations have potential significance in relation to the interpretation and application of provisions of the Mental Health Act. As the Supreme Court of the United Kingdom[48] and the European Court of Human Rights[49] have recognised, the CRPD is part of the legal context in which the provisions of the European Convention on Human Rights are interpreted, particularly in relation to equality and discrimination issues (see below), as to which a ‘European and worldwide consensus [exists] on the need to protect people with disabilities from discriminatory treatment … towards full inclusion’.[50] In accordance with general principles of interpretation[51] and s 32(2) of the Charter, the provisions of the CRPD are relevant in the same way to understanding the meaning of human rights in the Charter, especially in relation to those issues. That might especially be so in relation to the emphasis in the CRPD on providing persons with disability access to the support they need to exercise their legal capacity and on respecting the rights, will and preferences of persons with disability when proportionate measures relating to the exercise of that capacity are necessary, subject to review and safeguards, as a last resort.[52] Various provisions of the Mental Health Act have been enacted with that emphasis in mind.
[48]Surrey County Council [2014] AC 896, 916–17 [36] (Baroness Hale DPSC, Lord Neuberger PSC, Lord Sumption and Lord Kerr JJSC agreeing).
[49]Glor v Switzerland (European Court of Human Rights, Chamber, Application No 13444/04, 30 April 2009) [53] (‘Glor’); A-MV v Finland (2018) 66 EHRR 22 [74] (‘A-MV’).
[50]European Court of Human Rights, Chamber, Application No 13444/04, 30 April 2009) [53], cited with approval in Surrey County Council [2014] AC 896, 916–17 [36] (Baroness Hale DPSC, Lord Neuberger PSC, Lord Sumption and Lord Kerr JJSC agreeing).
[51]The authorities are collected and discussed in Kaba v Director of Public Prosecutions (2014) 44 VR 526, 566-73 [141]-[163] (Bell J) (‘Kaba’).
[52]CRPD art 12(3)–(4).

Certain issues of importance are raised by provisions of mental health legislation, such as the Mental Health Act, that enable substituted decisions to be made with respect to the compulsory treatment of persons with mental disability who have been found not to have capacity to give informed consent, as occurred with PBU and NJE. It is argued that such provisions are inherently discriminatory and contrary to the right to equality before the law and the right to have and exercise legal capacity. There is a great deal of contemporary scholarship on these issues,[53] much of it stimulated by publication of General Comment No 1 on art 12 of the CRPD by the United Nations Committee on the Rights of Persons with Disabilities (‘UNCRPD’).[54] According to the Committee, full recognition of universal legal capacity (as specified in art 12(2)) requires ‘State parties to … abolish denials of legal capacity that are discriminatory on the basis of disability in purpose or effect’.[55] Taken literally, this would mean that State parties to the CRPD, such as Australia, would be obliged under international law to abolish all substituted decision-making regimes.
[53]See eg Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1; Peter Barlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’ (2012) 75 Modern Law Review 752; Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014); Bernadette McSherry and Kay Wilson, ‘The concept of capacity in Australian mental health law reform; going in the wrong direction?’ (2015) 40 International Journal of Law and Psychiatry 60; Piers Gooding, A New Era for Mental Health Law and Policy (Cambridge University Press, 2017); and Anna Arstein-Kerslake, Restoring Voice to People with Cognitive Disabilities (Cambridge University Press, 2017).
[54]UNCRPD, General Comment No 1: Equal Recognition Before the Law (Art 12), 11^th sess, UN Doc CRPD/C/GC/1 (19 May 2014).
[55]Ibid [25].

As set out in an interpretative declaration relating to the CRPD, Australia does not agree with the interpretation of art 12 adopted by UNCRPD. Australia’s understanding is that

that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards.[56]

Nor does the European Court of Human Rights[57] and the German Federal Constitutional Court[58] agree with this interpretation.

[56]Convention on the Rights of Persons with Disabilities: Declarations and Reservations (Australia), opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

[57]See A-MV (2018) 66 EHRR 22, 846 [90].

[58]See Bundesverfassunsgericht (German Federal Constitutional Court) 1BVL 81/5, 26 July 2016 explained in Bundesverfassunsgericht, ‘Limiting Coercive Medical Treatment to Persons under Custodianship Confined in Accommodations is Incompatible with the State’s Duty of Protection (Press release, 59/2016, 29 August 2016) 2(d) <

Neither PBU nor NJE, nor the Secretary, invited me to go into the particular issues raised by General Comment No 1 of UNCRPD in the present case. Following the decision of Kracke[59] under the former legislation, the premise of the submissions made was that the Mental Health Act was not structurally incompatible with human rights because it authorised compulsory medical treatment (including ECT) for persons found not to have capacity to give informed consent to such treatment. Without challenging the compatibility of the substituted decision-making regime in that Act, it was submitted on behalf of PBU and NJE that the human rights in the Charter influenced — in the direction of self-determination, freedom from non-consensual treatment and personal inviolability — the interpretation and application of its provisions relating to that treatment. The submissions on both sides went into those issues and this judgment will do so, but upon the same premise.
[59](2009) 29 VAR 1, 158 [784] (Bell J).

Right to health

There is a two-way relationship between self-determination, freedom from non-consensual medical treatment and personal inviolability on the one hand and personal health and wellbeing on the other. The relationship is highly pertinent for persons with mental disability because they are more vulnerable than most in these vital respects. Provisions of the Mental Health Act assume the existence of this relationship and draw it into the frame of reference in relation to mental health treatment and assessing capacity.

As relevant to persons with mental disability, the right to health has been recognised and developed within several human rights treaties,[60] especially the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)[61] and the CRPD.
[60]Lisa Waddington and Bernadette McSherry, ‘Exceptions and Exclusions: The Right to Informed Consent for Medical Treatment of People with Psychosocial Disabilities in Europe’ (2016) 23 European Journal of Health Law 279, 281; see generally John Tobin, The Right to Health in International Law (Oxford University Press, 2012).
[61]Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

Article 12(1) of ICESCR provides:

That brings me to the decisions of VCAT in the two cases.

VCAT decisions in PBU and NJE applying s 96(1)(a)(ii)

In the applications before VCAT for approval of ECT, it was submitted on behalf of PBU and NJE that they did not need immediate treatment to prevent serious deterioration of mental or physical health or serious harm to them or another person (s 5(b)(i) and (ii)) and that maintaining the current treatment was a less restrictive way for them to be treated. VCAT rejected this submission and held that the treatment criteria in s 5(b) were not relevant to whether there was any less restrictive way for them to be treated under s 96(1)(a)(ii).

In the case of PBU, VCAT placed emphasis upon the need for the treatment to be beneficial:

When considering whether there is no less restrictive way for the patient to be treated, the matters in section 93(2) must be considered. Relevant here, section 93(2)(a) requires me to consider PBU’s views and preferences in respect of any ‘beneficial’ alternative treatments. Taking into account the meaning of ‘treatment’ under section 6, I read the reference to ‘beneficial alternative treatments’ as a reference to treatments which alleviate the symptoms and reduce the ill effects of the person's mental illness. That is consistent also with mental health principle 11(1)(b) which refers to services which aim to bring about the best possible therapeutic outcomes. Section 93(2)(f) requires me to consider the likely consequences of ECT not being performed.
The evidence before me supports a finding that PBU’s mental health will not improve if he continues as is. I have difficulty with the contention that plateauing means that there should be no change where PBU is demonstrably very ill and unable to be discharged from hospital in his current condition. Continuing hallucinatory or like experiences are consistent with the evidence that PBU is very unwell despite his current treatment regime. On the evidence before me it seems to me that continuing in the same way amounts to an indefinite stay in hospital with limited leave options and no prospect for progression in health or life for PBU. I make those comments taking into account the fact that the diagnosis of treatment resistant schizophrenia has not been challenged by any medical evidence. I also take into account the fact that, under the MH Act, treatment is intended to remedy illness or alleviate symptoms and reduce ill effects of illness.

For PBU, the preferred and available alternative treatment was to continue the same medication and for the treating team to continue its efforts to engage with him and give weight to his views as to the proper diagnosis. VCAT acknowledged that preference.

VCAT made it clear that it was not deciding that maintaining the treatment status quo could never constitute a less restrictive way of treating the patient:

Treatment under the MH Act is intended to remedy the person's mental illness or to alleviate the symptoms and reduce the ill effects of the person's mental illness. The aim of providing a mental health service such as treatment is to bring about the best possible therapeutic outcomes and to promote recovery and full participation in community life.
Looked at in this way, treatment that maintains the person (that is, avoids their mental health deteriorating) may not be sufficient. It may be sufficient treatment if it is part of a plan which is intended to lead to recovery by allowing time for consideration and discussion so the person may better participate in decision making. That is what the MHT seemed to have in mind in NLK. If, however, the maintenance of current treatment does not improve the person’s mental health and is not part of a plan which will lead to improvement in a reasonable time, arguably it may not properly be regarded as treatment within the definition in section 6 or meet the section 72 imperative to provide treatment.

The case of NLK was one in which the MHT had decided that, in the factual circumstances, it was not satisfied that there was no less restrictive way to treat the patient:
However, on balance the Tribunal was not satisfied there was no less restrictive way for NLK to be treated at the time of this hearing. It was noted in the report that a course of ECT would take some time to take effect, confirming that whatever is the next step in NLK’s treatment, his recovery will not be rapid. In that context, and given his mental state was regarded as having plateaued, it seemed reasonable to take time to have further discussions with NLK and AA, pursue a second psychiatric opinion and make contact with NLK’s private psychiatrist.[285]

[285][2016] VMHT 19 (9 March 2016) 4(b) (Matthew Carroll, Legal Member; Dr S Carey, Psychiatrist Member; V Spillane, Community Member).

In the case of NJE, VCAT (differently constituted) followed the decision in PBU that s 5(b) was not relevant to the application of s 96(1)(a)(ii), placing the same emphasis upon the need for the alternative treatment to be beneficial.

For NJE, the preferred and available alternative treatment was to remain in hospital and continue to receive depot and other prescribed medication. She feared that ECT would interfere with her psychic powers which, VCAT acknowledged, ‘she values’.

Submissions in appeal proceedings

In these appeals, as before VCAT, it was argued for PBU and NJE that VCAT erred in law by failing to take into account the purposes specified in s 5(b) when deciding whether less restrictive means of treatment were available under s 96(1)(a)(ii). Therefore, when deciding whether ECT was the least restrictive means of treatment, it was necessary to consider whether the purpose of the treatment was to provide immediate treatment that the person needed to prevent or address serious deterioration in health or serious harm to the person or another (s 5(b)). It was not that, when deciding whether to approve ECT, the treatment criteria were [re]assessed under s 6 as a discrete step, but (as counsel put it) that ‘you can’t abandon serious deterioration as an object and move to complete alleviation of symptoms’. It was submitted that the issue was not really whether ECT and the alternative treatment were ‘treatment’ under s 6, but whether the treatment was directed at the protective purposes underlying the criteria in s 5(b).

In counsel’s submissions, under s 96(1)(a)(ii) (read with s 93(2)), the question which VCAT should have addressed, but did not, was: ‘Is ECT the less restrictive way that the person can be treated to address the harm in s 5(b)(i) and (ii)? Not to immediately prevent them, but to address them …’. The issue was not: ‘Is [ECT] the best way of … getting the person out of hospital?’ It was submitted that the treatment for mental illness that patients must be given ‘in accordance with the Act’ under s 72 was treatment for the purposes inherent in s 5(b)(i) and (ii). In counsel’s submission, persons in the position of PBU and NJE as compulsory patients remained as such because of the continuing applicability of the treatment criteria in s 5.

Counsel emphasised that he was not submitting that all treatment of a patient under the Mental Health Act had to be directed at the purposes of s 5(b). It was rather that, when ECT was in question, these purposes were relevant when determining whether a less restrictive way was available to treat the patient under s 96(1)(a)(ii) (with s 93(2)). Compulsory treatment of the patient was justified because the treatment criteria in s 5 continued to apply and subsequent treatment should not be at odds with the purposes of those criteria.

To the determination of this issue I now turn.

Relevance of purposes of treatment criteria in s 5(b) to less restrictive treatment assessment

I accept the Secretary’s submission that the assessment of whether there is a less restrictive way for the patient to be treated under s 96(1)(a)(ii) does not require consideration of the purposes of the treatment criteria in s 5(b). In both cases, VCAT correctly so decided. The requirement that a treatment be the least restrictive available does not mean that the patient is to be treated to a minimum threshold or receive minimal treatment to address or prevent serious deterioration of health or serious harm.

This conclusion is supported by the express language of ss 96(1)(a)(ii) and 93(2) to which VCAT must have regard under s 96(3)(a). These provisions are self-contained and there is simply nothing in the text to indicate that the purposes of s 5(b) operate as an influence upon the assessment that must be carried out. It is the same with s 71, where the issue arises in relation to a patient who has capacity to give informed consent but refuses to give it.

The function of s 5 in the statutory scheme is to specify gateway criteria that must be satisfied before a person can be ‘subject to a Temporary Treatment Order or Treatment Order’, to use the opening words of the provision. As we saw in the overview of the Mental Health Act (see above), temporary treatment orders (s 46(1)(b)) and treatment orders (s 55(1)(a)–(b)) can only be made in respect of persons who satisfy the treatment criteria specified in that section. Once the person becomes so subject, the person is liable to be treated voluntarily or involuntarily according to the operative provisions of the Mental Health Act. The treatment criteria in s 5 have continuing relevance as a safeguard against unwarranted compulsory treatment and thereby serve an important protective human rights function. For example, an authorised psychiatrist who determines that the treatment criteria do not apply to the person must immediately revoke the order (s 61). But the purposes of the criteria do not control the treatment that may be administered to a patient after entry to and before exit from the treatment system, which is regulated by other provisions.

Tying assessment of treatment under ss 96(1)(a)(ii) and 93(2) to the protective purposes of the treatment criteria in s 5 is inconsistent with ensuring that the patient is given treatment for mental illness, which s 72 positively requires, and more broadly with the patient’s right to health. As we have seen, it is the first purpose of the Mental Health Act that persons with mental illness receive treatment for that illness (s 1(a)), which is also reflected in the objectives (see s 10(a)–(b), (f)) and principles (see s 11(1)(a)–(c)). The treatment that must be so provided is that which is the least restrictive way for the patient to be treated having regard to the medical and related needs, and (where it is reasonable in the circumstances) the views, preferences and recovery aspirations of the patient. Regard must also be had to the likely consequences if ECT (or other proposed treatment) is not performed (ss 93(2)(f) and 71(4)(h)). The treatment is not limited to that which is immediately necessary to address a serious deterioration in the person’s mental or physical health or risk of serious self-harm or harm to another. I am not suggesting that, in particular circumstances, there might not be sound reasons under ss 96(1)(a)(ii) and 93(2) (not under s 5(b)) for taking into account what may or may not be necessary immediately to prevent or address a serious deterioration in the person’s mental or physical health or a risk of serious harm to the person or another. But the assessment that must be carried out under those provisions is not controlled by those narrow purposes.

Tying assessment of treatment to the purposes of the treatment criteria is also completely inconsistent with the obligations of doctors, including doctors in hospitals, under the common law as it governs the doctor-patient relationship. The doctor has a positive duty to take reasonable care of the patient and this applies whether the patient has the capacity to consent to or refuse treatment or not. This is a duty to take reasonable care to provide treatment that is in the patient’s best interests,[286] not merely to provide treatment for the purpose of preventing or managing an immediate deterioration in health or a risk of harm. The provisions of the Mental Health Act relating to treatment of patients for mental illness regulate aspects of the doctor-patient relationship in the mental health setting. For example, s 96(1)(a)(ii) (and s 71(4)) specifies a less restrictive treatment test in place of a best-interests test. But the purpose of doing so is to ensure the provision of treatment in a manner that respects the human rights of patients, not to reduce the standard of care that the doctor must provide to a level that is inconsistent with those rights. The issue arising under ss 96(1)(a)(ii) is whether, other than ECT, there is any less restrictive way for the patient to be treated for mental illness for the purpose of meeting the need of the patient for that treatment (broadly understood), taking into account the views and preferences of the patient and the other matters in s 93(2) (see above). This assessment is not constrained by the much narrower purposes of the treatment criteria in s 5, including para (b), which serve a different function in the statutory scheme.
[286]R (Burke) v General Medical Council [2006] QB 273, 296–7 [32] (Lord Phillips MR, Waller and Wall LJJ), endorsing the analysis of Munby J in R (Burke) v General Medical Council [2005] QB 424, 454−5 [82]−[87].

There was an apprehension evident in the submissions made for PBU and NJE that, in the case of PBU, VCAT had cast a shadow of doubt over the legitimacy of the treatment status quo as a less restrictive treatment alternative under ss 96(1)(a)(ii) and 93(2). While there is emphasis in VCAT’s reasons for decision on treatment needing to be positively beneficial in terms of s 6(a) (see above), I do not think VCAT intended to cast any such doubt. The maintenance of the treatment status quo might be a legitimate less restrictive way for the person to be treated under these provisions. Whether it is so is very much a question for evaluation in the individual circumstances of the case, having regard to the considerations in s 93(2) to the extent that is reasonable in the circumstances. As I have emphasised, this is not simply a medical question and may incorporate the statutory concept of recovery.

Common ground of appeal 5 will therefore be rejected.

CONCLUSION

Because ECT is the application of electric current to specific areas of a person’s head to produce a generalised seizure, the Mental Health Act does not permit it to be imposed upon a person having mental illness who has the capacity to give informed consent unless the person actually gives that consent. The statutory test for determining whether the person has that capacity is satisfied where the person understands and can remember and use or weigh relevant information and communicate a decision. I have determined in these appeals that VCAT misinterpreted and misapplied this test 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 Rights and Responsibilities Act.

PBU did not agree that he had schizophrenia but accepted that he had mental health problems, namely depression, anxiety and post-traumatic stress disorder. He was willing to receive psychiatric and psychological treatment for those conditions but not ECT or anti-psychotic medication or treatment. He wished to be discharged from hospital to a prevention and recovery facility and then return home, which the hospital did not support because he was too unwell. VCAT determined that PBU could understand and remember relevant information and communicate a decision in relation to ECT but could not use or weigh that information. After finding that PBU lacked the capacity to given informed consent and that, other than ECT, there was no less restrictive way for him to be treated, it ordered that he be compulsorily subjected to a course of that treatment.

NJE suffered from treatment resistant schizophrenia for which she received voluntary and involuntary treatment in the community and in hospital. After several extended involuntary stays in hospital, she was placed on a community treatment order, but it was revoked and she was placed on an involuntary treatment order. She wanted to remain in hospital and continue to receive depot and other prescribed medication but VCAT found that ECT provided the best chance of addressing the symptoms of schizophrenia. As in the case of PBU, VCAT determined that NJE could understand and remember relevant information and communicate a decision in relation to ECT but could not use or weigh that information. It found that she lacked the capacity to given informed consent and that, other than ECT, there was no less restrictive way for her to be treated. Accordingly it ordered that she be subjected to a course of that treatment.

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.

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. 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.

People with mental illness are highly vulnerable to interference with the exercise of their human rights, especially their right to self-determination, to be free of non-consensual medical treatment and to personal inviolability. In that connection, the judgment discusses the relationship between the Mental Health Act and the Charter of Human Rights and Responsibilities Act with particular reference to the Convention on the Rights of Persons with Disabilities. There is emphasis upon both the right to health of persons having mental illness and their right to self-determination, to be free of non-consensual medical treatment and to personal inviolability. The reforms of the Mental Health Act enacted in 2014 represent a paradigm shift away from best-interests paternalism towards recognition of persons having mental illness as equal rights-bearers, not dependant welfare cases. The purpose of the statutory test for determining whether a person with mental illness has the capacity to give informed consent is not to produce social conformity at the expense of personal autonomy for those people. However, because persons with mental illness must have access to needed treatment, compulsory ECT may be imposed when the person is properly found to lack the capacity to give that consent, and another statutory condition is satisfied.

The other condition is that, when a person having mental illness lacks the capacity to give informed consent, compulsory medical treatment, including ECT, cannot be imposed unless there is no other less restrictive way for the person to be treated. But persons who are found to lack that capacity do not lose their right to contribute to medical decisions about what should be done to them. In determining whether there is any less restrictive way for the person to be treated, it is necessary to take the person’s views and preferences into account if it reasonable to do so. This is a human rights safeguard that reflects the paradigm shift in the new legislation. The operation of this safeguard is discussed in the judgment, especially the importance of supporting the person meaningfully to express their views and preferences. But I have not accepted the submission made for PBU and NJE that compulsory treatment must be confined to the purpose of immediately preventing serious deterioration in the person’s mental or physical health or serious harm to the person or another. This would be incompatible with the person’s right to health and the primary purpose of the Mental Health Act, which is to ensure that people with mental illness have access to medical treatment that is needed, not just desperately needed.

VCAT determined that PBU and NJE lacked the capacity to give informed consent and were therefore liable to receive compulsory ECT. In doing so, it erred in law by interpreting and applying the capacity test in the Mental Health Act incompatibly with the human rights of PBU and NJE under the Charter. The appeals will therefore be upheld and VCAT’s orders in both cases are to be quashed. In substitution for those orders, the court will order that the orders of the MHT that PBU and NJE be subjected to courses of ECT are quashed. As the court has been informed that PBU and NJE are now being treated in the community and compulsory ECT is no longer being sought, there is no need for remitter orders.

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Administrative Law
Human Rights Law

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Appeal
Capacity
Compensatory Damages
Human Rights
Self-Determination
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Pbu and Nje v Mental Health Tribunal [2018] VSC 564

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[2018] VSC 564

1 November 2018 (revised 22 January 2019)

Key Legal Topics

Areas of Law

Administrative Law

Human Rights Law

Legal Concepts

Appeal

Capacity

Compensatory Damages

Human Rights

Self-Determination

Consent