The Law Handbook 2024

834 Section 8: Disability, mental illness and the law Where the young person is a voluntary patient, the MHT must be satisfied that: a either the young person has consented to ECT in writing, or they do not have the capacity to give informed consent but a person who has the legal authority to consent to treatment (e.g. a parent) has given written informed consent to ECT; and b there is no less restrictive way for the young person to be treated (s 115). Electroconvulsive treatment hearings Section 97(1) of the MHWA provides that the MHT must list and complete the hearing of an application to perform ECT as soon as practicable and within five business days after receiving the application. Applications for urgent ECT hearings can be made if the authorised psychiatrist is satisfied that ECT is necessary as a matter of urgency to save the life of the person, to prevent serious damage to the health of the person, or to prevent the person from suffering or continuing to suffer significant pain or distress (s 97(2)). A person is entitled to have a lawyer or another advocate represent them at a hearing. ECT must not be performed where the adult or young person (or young person’s legal decision maker) withdraws consent, or they regain the capacity to consent and do not consent (s 102(2)(d). Neurosurgery Neurosurgery can only be performed on a person who has given informed consent in writing (see definition in ‘Capacity to give informed consent’, above) and the MHT grants an application made by a psychiatrist under section 121 of the MHWA. Applications are rare and neurosurgery happens very rarely. Application for revocation of treatment orders Applications to revoke a TTO or TO can be made to the MHT at any time while the order is in force (s 205 MHWA). An application can be made by the person themselves, or by a guardian, a parent (if the person is under 16) or the Secretary of the DFFH (if a relevant child protection order is in place). Designated mental health services have application forms; people wanting to apply should ask a nurse or doctor at the service for a form. Forms can also be completed online at www.mht.vic.gov.au. The MHT must conduct a hearing and determine the application as soon as practicable. In practice, how soon the hearing is held depends on where the person lives. Most designated mental health services, whether inpatient or community services, now conduct hearings weekly or fortnightly. Hearings All MHT hearings are heard and determined by three members. For all hearings other than those relating to simple adjournments, ECT or neurosurgery for mental illness, the panel has a legal member (the chairperson), a psychiatrist member or a registered medical practitioner member, and a community member. Where the division is hearing an ECT or neurosurgery matter, a psychiatrist member must sit. Simple adjournments can be conducted by the legal member only. Section 367 of the MHWA requires psychiatrists to complete the relevant application forms, depending on whether it is an application for a TO or to authorise ECT. The registrar has discretion to reject applications that do not comply or are out of time (s 368). The psychiatrist will prepare a report for the hearing, addressing why they believe the criteria are met. A report must also be prepared when the person has applied for revocation of their TTO or TO. The person must receive a copy of this report at least two business days prior to the hearing (s 373) (see ‘Access to documents’, below). The MHT can inform itself in any way it sees fit (s 362). It is not bound by the rules of evidence but is bound by the rules of procedural fairness. The vision and values outlined by the MHT emphasise that it will take a solution-focused approach to hearings to enable and support the person subject to the order to fully participate in the hearing. A person can – and where possible should – attend their MHT hearing. The person may be represented by a lawyer (or any person they choose). See ‘Contacts’ at the end of this chapter, for contact details for the Mental Health Legal Centre. Hearings are closed to the public. Interpreters can be arranged to assist a person at the hearing.