PBU & NJE v Mental Health Tribunal  VSC 564 (1 November 2018)
The Victorian Supreme Court has confirmed that the capacity test under the Mental Health Act 2014 (Vic) (MHA) must be interpreted and applied in a way that is compatible with the human rights of persons receiving compulsory mental health treatment under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter). This decision has significant implications for the human rights of persons with mental illness, and particularly for patients who may be subject to compulsory mental health treatment under the MHA.
Under the MHA, the Mental Health Tribunal (MHT) can order that a compulsory patient undergo a course of involuntary electroconvulsive treatment (ECT) when:
the patient does not have the capacity to give informed consent to ECT; and
there is no less restrictive way for the patient to be treated.
A person has capacity to give informed consent under s 68 of the MHA if the person:
understands the information he or she is given that is relevant to the decision;
is able to remember the information that is relevant to the decision;
is able to use or weigh information that is relevant to the decision; and
is able to communicate the decision he or she makes by speech, gesture or any other means.
A person is presumed to have capacity to give informed consent to treatment under s 70(2) MHA.
The Supreme Court appeal was brought on behalf of two clients, PBU and NJE, in relation to whom orders of involuntary ECT had been made by the MHT and upheld by the Victorian Civil and Administrative Tribunal (VCAT).
PBU did not agree with his diagnosis of schizophrenia, however he accepted that he had experienced depression, anxiety and post-traumatic stress disorder. He was willing to receive psychiatric and psychological treatment for those conditions but not ECT or anti-psychotic medication. In April 2017, the MHT ordered that PBU undergo a course of 12 ECT treatments. On appeal from the MHT, VCAT confirmed the order for ECT. In applying the capacity test, VCAT accepted that PBU could understand the information relevant to a decision about ECT. However, VCAT did not apply the other limbs of the capacity test and instead found that PBU did not have capacity to make a decision about ECT because he did not accept his diagnosis of schizophrenia.
NJE was diagnosed with treatment resistant schizophrenia and was willing to remain in hospital and continue to receive the prescribed antipsychotic medication rather than undergo ECT treatment. In April 2017, the MHT ordered that NJE undergo a course of 12 ECT treatments. On appeal from the MHT, VCAT confirmed the order for ECT. In applying the capacity test, VCAT accepted that NJE could understand and remember the relevant information and could communicate a decision about ECT. However, VCAT found that NJE could not use or weigh the information relevant to a decision about ECT on the basis that NJE was unable to ‘carefully consider the advantages and disadvantages of ECT’.
In relation to PBU and NJE, VCAT found that the second criterion was met as there were no less restrictive treatment options available.
Victoria Legal Aid (VLA), on behalf of PBU and NJE, appealed the VCAT decisions on a number of grounds, which can be summarised as follows:
that VCAT failed to give proper consideration to the rights conferred by the Charter, within the meaning of s 38(1) of the Charter, in its application of the capacity test to PBU’s case.
that VCAT erred in its interpretation and application of the capacity test in relation to PBU and NJE by requiring the patient to accept or believe the diagnosis of their illness and need for treatment before they could be regarded as having the capacity to give informed consent.
that VCAT erred in law by directing itself that s 68(1)(c) MHA required a person to carefully consider the advantages and disadvantages of a situation or proposal prior to making a decision.
that VCAT erred in its interpretation and application of the criterion that there is ‘no less restrictive way for the patient to be treated’ in relation to PBU and NJE.
The Department of Health and Human Services (DHHS) intervened in the appeal as amicus curiae by reason of their expertise in relation to the interpretation and application of the MHA, and its interaction with the Charter.
Justice Bell determined that VCAT misinterpreted and misapplied the capacity test in section 68 MHA in ways that undermined PBU and NJE’s human rights to self-determination, to be free of non-consensual medical treatment and to personal inviolability which are protected by the Charter .
In relation to PBU, his Honour found that a lack of insight into a diagnosis of mental illness, is not alone determinative of a lack of decision-making capacity and that VCAT erred by equating lack of insight with lack of capacity to give informed consent to treatment.
His Honour held that ‘lack of acceptance, belief or insight may be relevant when determining whether a person has the capacity to give informed consent, but it is only one consideration’ (at ). Justice Bell opined that it would be discriminatory for lack of insight to be determinative of lack of capacity in relation to people having mental illness when it is not considered determinative in relation to people not having mental illness.
In relation to NJE, Justice Bell found that in considering whether NJE could ‘use or weigh’ information relevant to ECT, VCAT erred by:
focusing on whether NJE had actually considered the advantages and disadvantages of the decision, not whether she had the ability to use or weigh the relevant information; and
applying a threshold of capacity that required the person ‘to carefully consider the advantages and disadvantages of the situation or proposal’, which was too high.
His Honour determined that the capacity test must be applied in a non-discriminatory manner to ensure that people with mental illness are not deprived of their equal right to exercise legal capacity . He found that the capacity threshold is a low threshold which requires that a patient “understands and is able to remember and use or weigh the relevant information, and communicate a decision, in terms of the general nature, purpose and effect of the treatment, and should not be an inquiry into ‘whether the person can make a sensible, rational or well-considered decision” (at ).
With respect to the interaction between human rights and the assessment of capacity, Justice Bell held that the fundamental human rights principles of self-determination, freedom from non-consensual medical treatment, personal inviolability, and the right to health, are most respected by capacity assessments that are “criteria-focused, evidence-based, person-centred and non-judgmental” and do not to depend upon the assessment of an objectively reasonable outcome (at ).
Ultimately, his Honour held that VCAT erred in law by interpreting and applying the capacity test in the MHA incompatibly with the human rights of PBU and NJE under the Charter.
With respect to the ‘less restrictive’ criterion, his Honour held that the assessment of whether there is a less restrictive way for the patient to be treated, does not require consideration of the purposes of the treatment criteria in subsection 5(b) MHA.
His Honour ordered that VCAT’s decisions be set aside. As PBU and NJE are now being treated in the community and compulsory ECT is no longer being sought, Justice Bell was not required to remit the decisions for further consideration.
This decision provides useful commentary on the application of the Charter to the compulsory treatment regime under the MHA and is an opportunity to increase engagement by courts and tribunals with the human rights issues relevant to persons receiving compulsory mental health treatment.
Justice Bell notes that people with mental illness are highly vulnerable to interference with the exercise of their human rights, especially their right to self-determination, to be free of non-consensual medical treatment and to personal inviolability. Particularly, an assessment that a person does not have capacity to give informed consent to treatment, takes away a person’s fundamental right to refuse treatment. Accordingly, it is important that the capacity test under the MHA be applied and interpreted in a manner compatible with the rights in the Charter.
Justice Bell’s commentary on the application of these Charter rights to the assessment of a person’s capacity to consent to compulsory mental health treatment, strengthens the human rights protections for persons subject to compulsory mental health treatment.
His Honour reaches the conclusion that the MHA “rejects the bests-interests paradigm for healthcare decision making”. This conclusion broadens the application of His Honour’s judgment to include not only assessments of capacity to give informed consent to treatment, but also to the application of the MHA provisions relating to compulsory assessment and treatment of persons with mental illness.
The full text of the Victorian Supreme Court’s decision can be found here.
Jen Lynch worked on this case as a lawyer in the Mental Health and Disability Law Program at Victoria Legal Aid.