The Law Handbook 2024

Chapter 8.4: Mental illness 833 The MHWA also requires the authorised psychiatrist to consider a range of views, including, critically, the person’s views and preferences (s 214). Leave can only be revoked if: • it is necessary to prevent serious deterioration in the person’s mental or physical health; • it is necessary to prevent serious harm to the person or to another; • the person has failed to comply with a condition of their leave; or • the purpose for the leave no longer exists (s 217). The person and others must be notified. Electroconvulsive treatment Electroconvulsive treatment ( ECT ) involves applying an electric current to specific areas of a person’s head to produce a generalised seizure. A course of ECT is a number of treatments (up to a maximum of 12), performed within a period of time. This time period must be no longer than six months from the date the person gives their consent or the date the MHT approves ECT (s 95). Electroconvulsive treatment for an adult ECT can occur in two ways: 1 if the patient provides informed consent to ECT in writing (s 98(a)) (‘informed consent’ is defined in ‘Mental health treatment, capacity and consent’, above); or 2 if the MHT grants an application for ECT made by the authorised psychiatrist under section 98(b) of the MHWA, and makes an order approving ECT, specifying the course and duration of the course of ECT. The MHT must grant the authorised psychiatrist’s application if it is satisfied that: a the patient does not have the capacity to give informed consent to a course of ECT; and b there is no less restrictive way to treat the patient (s 99). The authorised psychiatrist’s application must address both criteria. If the MHT is not satisfied of these criteria, the MHT must refuse to grant the application. Capacity to give informed consent must be assessed in accordance with the tests and principles in section 85 of the MHWA. The concept of capacity was recently addressed in the PBU & NJE case (see ‘Capacity to give informed consent’, above). Section 99(2) of the MHWA sets out all the factors that must be considered in determining whether there is no less restrictive way for the person to be treated, than with ECT: a the patient’s views and preferences in relation to ECT and any beneficial alternative treatments that are reasonably available and the reasons for those views or preferences, including any recovery outcomes the patient would like to achieve; b the patient’s views and preferences as expressed in their advance statement of preferences; c the views expressed by the patient’s nominated support person; d the views of the patient’s guardian; e the views of the patient’s carer, if the authorised psychiatrist is satisfied that the decision to perform ECT will directly affect the carer and the care relationship; f whether the electoconvulsive treatment is likely to remedy or lessen the symptoms of mental illness; g the likely consequences for the patient if the ECT is not administered; h any second psychiatric opinion. In the PBU & NJE case, Justice Bell emphasised that the least restrictive test is not a best-interests test [250] and that taking into account the person’s views and preferences, even when they lack capacity, is an important human rights safeguard [282]. When an adult has capacity to make the decision themselves about ECT and refuses ECT, they cannot be compulsorily given ECT. Electroconvulsive treatment for a young person ECT can only be performed on a person under 18 years old with the MHT’s authorisation, following an application by a psychiatrist under section 110 of the MHWA. Where the young person is a compulsory patient or forensic or security patient, the MHT must be satisfied that either: a the young person has given their informed consent in writing to ECT; or b the young person does not have capacity to give informed consent and there is no less restrictive way for them to be treated.