Abstract
In a number of jurisdictions, a senior clinician or a tribunal is enabled to order ECT when a person does not have the capacity to give informed consent to the treatment and in the circumstances there is no less restrictive way for the patient to be treated. In Victoria, Australia, there have been a number of challenges to orders permitting ECT orders made by the Mental Health Tribunal. In a landmark decision by Bell J of the Victorian Supreme Court, PBU & NJE v Mental Health Tribunal [2018] VSC 564, on appeal from the Victorian Civil and Administrative Tribunal ('VCAT'), in turn on appeal from the Mental Health Tribunal, the human rights ramifications of the evaluation of whether a person has capacity to consent were scrutinised at length. Deficiencies in the reasoning by VCAT, including resort to impermissible extra-legislative considerations, such as insight, best interests and the giving of careful consideration, were highlighted by Bell J. This commentary reviews the reasoning of Bell J and discusses the ongoing consequences of his decision for both clinician reports and tribunal reasoning so that decision-making about ECT complies with legislative requirements, is not discriminatory against those with mental illnesses and is more sophisticated in its analysis of the adverse impact that mental illness symptomatology has at the relevant time on capacity to give informed consent to ECT.