Case 40: Electroconvulsive treatment ordered against patients’ wishes a breach of human rights

Photo by PeterJSeager on iStock

Two people with mental illness were unwilling to undergo electroconvulsive treatment (ECT). The Mental Health Tribunal ordered that they be subject to compulsory ECT. The Victorian Civil and Administrative Tribunal upheld those orders. They appealed to the Supreme Court. The Supreme Court noted the case raised important legal issues about mental health legislation and especially provisions on capacity to consent to or decline treatment, in light of human rights in the Charter. The Supreme Court found that the Victorian Civil and Administrative Tribunal erred in law when examining whether they lacked capacity to give informed
consent to treatment and had therefore applied mental health legislation incompatibly with their rights under the Charter. The orders for compulsory treatment were cancelled.

Sources: 2018 Report on the Operation of the Charter of Human Rights and Responsibilities, pp. 77-78; PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018). See our case summary here: https://www.hrlc.org.au/human-rights-case-summaries/2019/2/20/victorian-supreme-court-holdselectroconvulsive-treatment-ordered-against-patients-wishes-a-breach-of-human-rights.