Providing ECT to adults with impaired capacity outside of the Mental Health Act 2016

20 July 2020

We were recently involved in 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 update considers the situation of administering ECT for a condition other than a mental illness to adults with impaired capacity in Queensland.

The appropriate pathway

ECT for the treatment of a mental illness is a “regulated treatment” under the Mental Health Act 2016 (Qld) (MHA). 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. If an adult is unable to give informed consent, the Mental Health Review Tribunal (MHRT) is required to approve the therapy.

However the definition in the MHA of ECT expressly relates to ECT “for the treatment of a mental illness”. It is silent regarding the use of ECT for treatment other than of a mental illness, and therefore does not appear to extend the jurisdiction of the MHRT or the provisions of the MHA to this situation.

ECT is also a prescribed type of “special health care” under the Guardianship and Administration Act 2002 (Qld) (GAA). The GAA presides an order of priority for dealing with special health care matters for an adult with impaired capacity (footnote: s65 GAA). That order requires firstly considering any Advance Health Directive dealing with the treatment in question, secondly seeking authorisation from any other entity able to deal with the matter, and finally approval 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. (Footnote s68(1) GAA)

Therefore, in a situation 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, neither the MHA nor the GAA processes can assist.

Parens Patriae application

As the provisions of the GAA and MHA do not respond to the situation, an application to the Supreme Court is required. This application is brought pursuant to the Court’s inherent Parens Patriae jurisdiction and seeks orders permitting the treatment which would otherwise be unauthorised.

Ultimately in such applications, the Court will look at whether the treatment 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 practitioners, 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 situations of urgency. Amongst other things, the Court will consider the therapeutic benefit of the proposed treatment, the short and long term risks and pain if it is administered, and any alternative treatment options.

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

Take home message

In many instances, treatment needs to occur within very short timeframes. Where a patient’s capacity is impaired, it is important to clarify the necessary 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.

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation