PBU & NJE v Mental Health Tribunal

The applicants, PBU and NJE, appealed against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that ordered their compulsory electroconvulsive treatment (ECT) on the basis that they lacked the capacity to give informed consent or refuse treatment. The applicants argued that VCAT erred in its interpretation and application of the statutory requirements for ECT, as well as in assessing their capacity to consent to treatment in a manner compatible with their human rights. The applicants sought to overturn the decision, arguing that they had the capacity to give informed consent to or refuse ECT.

The court was required to determine whether VCAT properly interpreted and applied the statutory requirement that a person must be able to 'use or weigh' information relevant to a decision about ECT, and whether the requirement of no less restrictive treatment was met only where treatment was immediately needed to prevent serious deterioration in the person's health or serious self-harm or harm to another. Additionally, the court had to assess whether VCAT's determination that the applicants lacked capacity to give informed consent or refuse ECT was compatible with their human rights, including the right to self-determination, the right to be free from non-consensual medical treatment, and the right to personal inviolability.

The court found that VCAT did not err in its interpretation and application of the statutory requirements for ECT. The applicants' arguments that VCAT did not properly assess their capacity to give informed consent were rejected, as the tribunal had appropriately applied the relevant statutory provisions and considered the applicants' capacity to understand and weigh the information relevant to the decision about ECT. The court also held that VCAT was correct in its determination that the applicants lacked the capacity to give informed consent or refuse ECT, and that the requirement of no less restrictive treatment was met in this case.

The court dismissed the applicants' appeal, upholding the VCAT decision that they be compulsorily subjected to ECT. The applicants were found to lack the capacity to give informed consent to or refuse treatment, and the treatment was deemed necessary and appropriate under the relevant statutory provisions. No further orders were made.