Oral Presentation Australasian Association of Bioethics & Health Law and New Zealand Bioethics Conference

The significance of the decision in PBU & NJE v Mental Health Review Tribunal [2018] VSC 564: human rights perspectives on decisions about electroconvulsive therapy (1036)

Malcolm Smith 1 , Kate Betts 2
  1. Griffith Law School, Griffith University, Brisbane, Queensland, Australia
  2. Health and Medical Law Team, Corrs Chambers Westgarth Lawyers, Brisbane, Queensland, Australia

The Victorian Supreme Court decision of PBU & NJE v Mental Health Review Tribunal (“PBU”) concerned an appeal to determine some specific issues under the Mental Health Act 2014 (Vic) (“MHA”). The case clarified the test of capacity to be applied under the MHA, as well as the application of the ‘no less restrictive way for the patient to be treated’ test in the context of decisions about electroconvulsive therapy (ECT).

In PBU, the Victorian Supreme Court determined that a higher threshold than that outlined within the MHA was applied by the clinicians. It was emphasised that the legislation did not require that a person accepts or believes a diagnosis of mental illness to meet the statutory definition of capacity and that the application of a higher threshold of the capacity test was discriminatory and in breach of human rights principles. The Court held that a person’s right to self-determination and protection from non-consensual medical treatment be prioritised above “best interests” judgments when making decisions about ECT. Importantly, decisions about ECT must be made not only on the basis of whether it is the least restrictive way of treating a person, but also after considering a person’s views and preferences, even if the person lacks capacity. Consequently, decisions about ECT for persons who lack capacity must be made by the Tribunal.

We consider the significance of the decision in PBU in line with the Queensland Mental Health Act 2016, also with reference to Queensland’s new Human Rights Act 2019.