Administering electroconvulsive therapy to adults with impaired capacity outside of the Mental Health Act 2016 (Qld)

The Queensland Supreme Court recently considered a novel application seeking authorisation for the administration of electroconvulsive therapy (ECT) to an adult in an induced coma for the treatment of super refractory status epilepticus. The matter was considered in closed court, with non-publication orders made. Accordingly, there is no publicly available transcript or reasons. This article looks at the process for obtaining authorisation to administer ECT for a condition other than a mental illness to adults with impaired capacity in Queensland.

This article was originally published in the Lexis Nexis Health Law Bulletin Volume 28 No 7.

Factual circumstances

Given the scope of non-publication orders made in the application, identifying factors cannot be detailed. What is relevant for the purpose of this article is that the patient in question was an adult, whose family were involved in the decision-making and who did not have a relevant power of attorney or advance health directive.

The patient was in an induced coma in the intensive care unit and treating practitioners had been unable to control their epilepsy for several weeks. Having tried various treatment options without success, the treating team considered that the best prospect of relief from the seizures involved administering ECT to treat the major epileptic episodes. However, if such treatment were to occur, it needed to be administered without delay.

Usual process for obtaining consent from an adult with impaired capacity

In Queensland, if an adult has impaired capacity for a health matter, the matter may only be dealt with in accordance with the order of priority set out in s 66 of the Guardianship and Administration Act 2000 (Qld) (GAA).

A health matter, for an adult, is a matter relating to health care (other than special health care) of the adult.¹

This order of priority is:

1. Firstly, pursuant to an applicable advance health directive.
2. Secondly, by an appointed guardian or under a tribunal order.
3. Thirdly, by an attorney appointed by an enduring document for the matter.
4. Lastly, the matter may be dealt with by the statutory health attorney. For a health matter, an adult’s statutory health attorney is the first, in listed order, of the following people who is readily available and culturally appropriate to exercise power:
   1. the spouse if the relationship is close and continuing;
   2. a person who is 18 years or more, has the care of the adult and is not a paid carer for the adult;
   3. a person who is 18 years or more and who is a close friend or relation and is not a paid carer for the adult;
   4. the public guardian.

There are exceptions for urgent health care² and minor, uncontroversial health care.³

Electroconvulsive therapy

ECT induces seizures intentionally and directly in the patient to whom it is administered. It is described in Mosby’s Dictionary of Medicine, Nursing & Health Professions as:

ECT has been a polarising issue in the community. During the second reading of the Mental Health Bill 2000 (Qld) on 14 May 2000, the following was said in respect of ECT:

Accordingly, legislators determined that certain safeguards for the provision of ECT were necessary in the Queensland Mental Health legislation to alleviate community concern. A provision was also included in the GAA, which expressly deals with ECT.

These are discussed below.

Legislative framework

The Mental Health Act 2016 (Qld)

ECT for the treatment of a mental illness is a 'regulated treatment' under the Mental Health Act 2016 (Qld) (MHA).⁶ The MHA prescribes the approval process for regulated treatment and makes it an offence to perform regulated treatment (and thus ECT) except under the MHA.⁷ If an adult is unable to give informed consent, the Mental Health Review Tribunal (MHRT) is required to approve the therapy.⁸

The MHA defines electroconvulsive therapy as the application of electric current to specific areas of the head to produce a generalised seizure that is modified by general anaesthesia and the administration of a muscle-relaxing agent for the treatment of a mental illness.⁹ The GAA defines electroconvulsive therapy in the same way, except that it omits the underlined reference to treatment of a mental illness.¹⁰

The MHA is silent regarding the use of ECT for treatment other than of a mental illness. Accordingly, the regulation of ECT under the MHA, and the corresponding jurisdiction of the MHRT, do not extend to the situation in question.

The Guardianship and Administration Act 2000 (Qld)

ECT is a prescribed type of 'special health care' under the GAA. Other types of special health care include sterilisation, termination of a pregnancy or participation in special medical research or experimental health care.

The GAA provides the following order of priority for dealing with special health care matters for an adult with impaired capacity in Queensland:¹¹

1. Firstly, pursuant to an applicable advance health directive.
2. Secondly, by 'any other entity' that is authorised to deal with the matter.
3. Thirdly, pursuant to an order made by the Queensland Civil and Administrative Tribunal (QCAT).

However, unlike any other type of special health care, the GAA specifically states that QCAT cannot make an order consenting to ECT.¹² Therefore, where a patient without capacity has no applicable advance health directive and clinicians seek to administer ECT other than for treatment of a mental illness in Queensland neither the MHA nor the GAA process applies.

Parens patriae jurisdiction

The patient in question did not have an advance health directive, guardian or attorney. An application was accordingly made to the Supreme Court in its inherent parens patriae jurisdiction for orders permitting the ECT treatment, which would otherwise be unauthorised and arguably unlawful.

The parens patriae jurisdiction provides welfare to those unable to protect themselves. In a recent decision, the Queensland Supreme Court described the jurisdiction as being 'exercised to protect the person and property of people, especially children, who are unable to look after their own interests'.¹³

Many cases in the jurisdiction concern the treatment of children who lack capacity to make a decision themselves and where parents’ wishes are at odds with the treating team’s recommendations. Often these applications involve life-threating situations, such as cancer treatment.

In a recent example, the New South Wales Supreme Court considered a case concerning a 3-year-old boy, whose injuries sustained in a motor vehicle accident were terminal without artificial and mechanical life-sustaining treatment.¹⁴ The treating clinicians agreed that the boy had no conscious awareness, and that all further treatment would be futile. There were divided opinions about whether he was capable of feeling pain or discomfort. A court declaration to terminate life-sustaining measures was ultimately required, as the parents did not consent to the actions, although they also did not actively oppose the orders sought.

Ultimately, in such applications, the court will look at whether the treatment or other action proposed is in the patient’s 'best interests'. It will consider the views of the treatment providers, and any second or third opinions sought from other clinicians, along with the wishes of the family and next of kin and the patient (if known). This evidence needs to be set out in affidavits, if time permits, or given orally in urgent cases. Amongst other things, the court will consider the therapeutic benefit of the proposed treatment, the short and long-term risks, the extent of any pain or suffering if it is administered and any alternative treatment options.

Practical matters to be considered include whether the application can be brought ex parte (ie without requiring service of the application on the patient and/or their family), whether non-publication orders should be made and whether the application should be heard in closed court in order to protect the patient’s sensitive health and personal information.

The outcome

The evidence of treating clinicians in the subject application was that the case was highly complex and challenging with many treatment options having been unsuccessfully trialled. The clinicians consulted with both interstate colleagues and international experts about the best management of the patient. As escalating medical therapy continued to be ineffective, the treating team, which consisted of a number of specialities, unanimously supported a plan to trial ECT.

Evidence was provided regarding the specific risks of ECT to the patient, the risks of not administering the treatment, what the treatment regime would involve, alternatives trialled to date, and any remaining alternatives.

The patient’s family had indicated to the treating team that they were open to considering all available therapies that may have the potential to improve the patient’s clinical situation and outcome. They had been provided with written and video information regarding ECT and had discussed the potential side effects of ECT with clinicians. They were also given a copy of the court application, the nature of which was explained to them. The family indicated to the treating team that they wished for the treatment to proceed and expressed concern about the prospect that the treatment may be unable to proceed. Detailed evidence of the family’s position was provided to the court.

After reviewing of all of the evidence, the court authorised the treatment of ECT as recommended by the treating team. Orders were made at the time of hearing enabling treatment to commence without delay.

Concluding remarks

Clinicians often face the situation where treatment decisions need to occur within very short timeframes. Where a patient’s capacity is impaired, it is important to clarify the applicable legal framework for obtaining consent to treatment as soon as possible, particularly if the treatment is regulated by legislation, is experimental or if an urgent application is required.

A court will usually give significant weight to clinicians’ views and recommendations. It is vital, particularly in time-sensitive matters, that this evidence is well-considered, thorough and addresses all the questions a court may have about whether the proposed treatment or decision is in the patient’s best interests. Evidence regarding consideration of alternatives, discussions with colleagues, second opinions sought and literature considered is often important. The views of the family and the patient also need to be put before the court in a sensitive manner, where possible and appropriate.

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¹ Guardianship and Administration Act 2000 (Qld), Sch 2, s 4.
² Guardianship and Administration Act 2000 (Qld), s 63.
³ Guardianship and Administration Act 2000 (Qld), s 64.
⁴ P Harris, S Nagy and N Vardaxis, Mosby’s Dictionary of Medicine, Nursing & Health Professions, 2nd edn, Mosby Australia, 2000, 582.
⁵ Queensland, Parliamentary Debates, Legislative Assembly, 14 March 2000, 44 (W M Edmond, Minister for Health).
⁶ Mental Health Act 2016 (Qld), s 232.
⁷ Mental Health Act 2016 (Qld), s 235.
⁸ Mental Health Act 2016 (Qld), s 236.
⁹ Mental Health Act 2016 (Qld), Sch 3 (emphasis added).
¹⁰ Guardianship and Administration Act 2000 (Qld), Sch 2, s 14.
¹¹ Guardianship and Administration Act 2000 (Qld), s 65.
¹² Guardianship and Administration Act 2000 (Qld), s 68(1).
¹³ Children’s Health Queensland Hospital and Health Service v AT [2018] QSC 147; BC201805941 at [13] (Atkinson J).
¹⁴ Hospital v S (A Minor) [2019] NSWSC 642; BC201904690.