PBU v Mental Health Tribunal

[2018] VSC 564
Download Judgment: English

Both the plaintiffs were diagnosed with schizophrenia and were ordered to undergo compulsory electroconvulsive treatment (ECT). The case arose from the plaintiffs’ appeal of the Victorian Civil and Administrative Tribunal’s (VCAT) order that they are administered ECT.

VCAT made this decision pursuant to its findings that both individual plaintiffs lacked the capacity to give informed consent because one plaintiff did not accept his schizophrenia diagnosis while the other did not carefully weigh the advantages and disadvantages of ECT treatment. VCAT further found that there was no less restrictive treatment available.

The thrust of the plaintiffs’ argument was that the VCAT incorrectly interpreted the provisions of the Mental Health Act in a manner that violated the rights to health, equality before the law, freedom from non-consensual medical treatment and privacy under the Charter of Human Rights and Responsibilities Act.

The first plaintiff contended that VCAT specifically erred in law by making their capacity to give consent contingent upon their accepting or believing the diagnoses of their illnesses and need for treatment. The second plaintiff contended that VCAT improperly applied the capacity test in a paternalistic manner by looking at how she used the information she was given as opposed to focusing on her actual ability to use the information.

The plaintiffs further argued that VCAT erred in law by failing to confine compulsory treatment to the purposes articulated in Section 5(b) of the Mental Health Act in their determination of whether less restrictive treatment options were available. They contended that VCAT misinterpreted the relevant provisions of the Act and failed to give effect to their human rights and dignity as was required by the objectives and principles of the Act. The Secretary of the Department of Health and Human Services countered this contention, stating that the purposes were not mandatorily relevant.
The court considered the matter under three principal grounds. First, the tribunal erred by failing to apply the test for ‘capacity to give informed consent’ in section 68(1) of the Act. Second, the tribunal had misunderstood sections 68(1) and 96(1)(a)(i) of the Act and third, the tribunal’s reasons failed to comply with section 117 of the VCAT Act.

The court held that VCAT's interpretation and application of the capacity test undermined the plaintiffs' rights to self-determination, to be free of non-consensual medical treatment, and to personal inviolability. The principal errors of law made by VCAT that the court identified were the findings that both plaintiffs did not have the capacity to give informed consent on the grounds that one plaintiff denied his mental illness diagnosis and the other plaintiff had not given enough careful consideration to merits and drawbacks of ECT.

The court found that VCAT's reasoning as to why one plaintiff did not have the capacity to consent because of his denial of his diagnosis suggested that VCAT had incorrectly made the lack of acceptance of the diagnosis as dispositive. Even then, the court stated that the evidence showed that notwithstanding the plaintiff's denial of his schizophrenia diagnosis, the plaintiff accepted that he had mental health issues. The court went on to explain that there were several reasons why people make medical decisions that others would not and that it would be discriminatory to not afford those with mental disabilities the same freedom.

As for the second plaintiff, the court also found VCAT erred in law because they incorrectly considered whether the plaintiff carefully considered the advantages or disadvantages of the proposed treatment, as opposed to asking, correctly, whether the plaintiff "had the ability to use or weigh relevant information". The court stated that it was enough that the person was able to make and communicate a decision in broad terms as to the general nature, purpose, and effect of the treatment.
The court emphasized upon the right to health of persons with mental illness and their right to self-determination and noted that the reforms of the Mental Health Act represented a paradigm shift from best-interest paternalism towards recognition of persons with mental illness as equal right-bearers.
That being said, the court found that VCAT was not required to limit compulsory treatment to instances where it would prevent serious deterioration in a person's mental or physical health or serious harm to the person or another. According to the court, such a requirement would run counter to the right to health and the overall purpose of the Mental Health Act of ensuring access to needed treatment.

“The right to health is not legislated as such in the Mental Health Act. But its provisions have the central purpose of ensuring that people with mental disability have access to treatment for mental illness and attain a state of recovery and full participation in the life of the community. The provisions also have the purpose, supported by the Charter, of ensuring that the rights to self- determination, to be free of non-consensual medical treatment and to personal inviolability, although not absolute, are respected in treating mental ill-health and assessing capacity. The two purposes are connected.” Paragraph 99

“People, whether having mental illness or not, have the freedom to choose whether to make a rational or balanced decision and, under s 68(1)(c), the question is whether the person has the ability to use or weigh relevant information, not whether the person is capable of making a rational and balanced decision or has actually done so. This principle contributes to ensuring respect for the human rights of all people, whether having a mental disability or not, to self-determination, to be free of non-consensual medical treatment and to personal inviolability. “ Paragraph 236

“Enactment of the no less restrictive treatment test, along with the requirement to take the views and preferences of the patient into account and the provisions that promote supported decision-making represents a paradigm shift in the design of the mental health legislation. It is a shift away from the paternal model of decision-making that applied under legacy mental health legislation, which permitted such treatment compulsorily if warranted in the patient’s ‘objective’ best interests. It is a shift towards recognition of persons with mental disability as dignified rights- bearers, not welfare cases, whether or not they have the capacity to give or refuse informed consent.” Paragraph 250

Mental Health Act 2014 Section 5. What are the treatment criteria? The treatment criteria for a person to be made subject to a Temporary Treatment Order or Treatment Order are— (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. Section 46. Authorised psychiatrist may make Temporary Treatment Order (1) Subject to section 47, an authorised psychiatrist may make a Temporary Treatment Order in respect of a person who is subject to an Assessment Order or a Court Assessment Order if the authorised psychiatrist— (a) has examined the person; and (b) is satisfied that the treatment criteria apply to the person. (2) In determining whether the treatment criteria apply to the person, the authorised psychiatrist— (a) must, to the extent that is reasonable in the circumstances, have regard to all of the following— (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; Section 68. Capacity to give informed consent under this Act (1) A person has the capacity to give informed consent under this Act if the person— (a) understands the information he or she is given that is relevant to the decision; and (b) is able to remember the information that is relevant to the decision; and (c) is able to use or weigh information that is relevant to the decision; and (d) is able to communicate the decision he or she makes by speech, gestures or any other means. (2) The following principles are intended to provide guidance to any person who is required to determine whether or not a person has the capacity to give informed consent under this Act— (a) a person's capacity to give informed consent is specific to the decision that the person is to make; (b) a person's capacity to give informed consent may change over time; (c) it should not be assumed that a person does not have the capacity to give informed consent based only on his or her age, appearance, condition or an aspect of his or her behavior; (d) a determination that a person does not have the capacity to give informed consent should not be made only because the person makes a decision that could be considered to be unwise; (e) when assessing a person's capacity to give informed consent, reasonable steps should be taken to conduct the assessment at a time at, and in an environment in, which the person's capacity to give informed consent can be assessed most accurately. Section 70. Presumption that person has capacity to give informed consent (2) The person seeking the informed consent of another person to a treatment or medical treatment must presume that the other person has the capacity to give informed consent. Charter of Human Rights and Responsibilities Act Section 8. Recognition and equality before the law (3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. Section 10. Protection from torture and cruel, inhuman or degrading treatment A person must not be— … (c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent. Section 13. Privacy and reputation A person has the right— (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked.
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