PBU v Mental Health Tribunal (2018) VSC 564
Australian case on capacity and ECT Headnotes from judgment: (1) "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." (2) "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."
Date of judgment: 1 November 2018 (revised 22 January 2019)
- AustLII - full judgment