Chapter 6: Applications to approve electroconvulsive therapy

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6.1 Relevant Legislation

Mental Health Act 2014 (WA) (the Act) s 8, 192, 193, 194, 195, 196, 198, 199, 409, 410, 411, 412, 413, 414, 415.

6.2 Key Definitions

Adult means a person who has reached 18 years of age.

Carer means a carer under the Carer’s Recognition Act 2004 (WA) s 5 (ss 4 and 280(1)).  A person is a carer for the purposes of the Carer’s Recognition Act if he or she is an individual who provides ongoing care or assistance to a person who has a chronic illness, including a mental illness as defined in the Mental Health Act 2014 section 4 (or as otherwise specified in s 5(1) of the Carer’s Recognition Act).  A person is not a carer under s 5(2) of the Carer’s Recognition Act if they provide services under a contract or as community work.  A person is not a carer for the purposes of the Carer’s Recognition Act merely because they are a spouse, parent, guardian, or providing care under an arrangement with the CEO of the Department of Communities.

Chief Psychiatrist means the Chief Psychiatrist appointed under section 508(1). The current Chief Psychiatrist of Western Australia is Dr Nathan Gibson.

Child means a person who is under 18 years of age.

Child and adolescent psychiatrist means a psychiatrist who has qualifications and clinical training in the treatment of mental illness in children

Close family member means any of these people, whether the relationship is traced through consanguinity, marriage, de-facto relationship, written law or natural relationship:  a spouse or de-facto partner; a child; a step-child; a parent; a step-parent; a foster parent; a sibling; a grandparent; an aunt or uncle; a niece or nephew; a cousin.  If the person is of Aboriginal or Torres Strait Islander descent — any person regarded under the customary law, tradition or kinship of that person’s community as the equivalent of one of these persons (ss 4 and 281(1)).

Community treatment order means an order in force under the Act under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.

Custody order means an order under the MIA Act that an accused be kept in custody in accordance with Part 5 of the MIA Act (see s 3 of the MIA Act).

Electroconvulsive therapy (ECT) is treatment involving the application of electric current to specific areas of a person’s head to produce a generalised seizure that is modified by general anaesthesia and administration of a muscle relaxing agent (s 192).

Involuntary patient is a person who is under an involuntary treatment order.

Mental Health Service (a) means any of these services – (i) a hospital, but only to the extent that the hospital provides treatment or care to people who have or may have a mental illness; (ii) a community mental health service; (iii) any service, or any service in a class of service, prescribed by the regulations for this definition; and (b) does not include – (i) a private psychiatric hostel; or (ii) a declared place as defined in the MIA Act section 23 .

Mentally impaired accused has the meaning given in the MIA Act section 23 (an accused in respect of whom a custody order has been made and who has not been discharged from the order).

MIA Act means the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

Nominated person, of a person, means the person nominated under section 273(1) to be the person’s nominated person.

Parent or Guardian, of a child, means the person who has parental responsibility (as defined in the Family Court Act 1997 (WA) section 68) for the child.

Patient’s psychiatrist means (a) if the patient is a voluntary patient – the treating psychiatrist; or (b) if the patient is an involuntary patient who is under an inpatient treatment order – the treating psychiatrist; or (c) if the patient is an involuntary patient who is under a community treatment order – the supervising psychiatrist; or (d) if the patient is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital – the treating psychiatrist.

Supervising psychiatrist in relation to a community treatment order, means the psychiatrist who is the supervising psychiatrist under the order (s 113).

Treating psychiatrist in relation to a patient, means the psychiatrist who is in charge of the patient’s treatment.

Treatment means the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation.

Voluntary patient means a voluntary patient who is admitted by a mental health service as an inpatient.

6.3 Application requirements

6.3.1     Who can apply and how

Only the patient’s psychiatrist may apply for approval to perform ECT (s 410(1)). This means either the psychiatrist in charge of the patient’s treatment (the treating psychiatrist) or the supervising psychiatrist named in a patient’s community treatment order (the supervising psychiatrist).

The application must be made in writing and must set out the reasons why the patient’s psychiatrist recommends ECT (s 410(2)(a)) and provide a treatment plan (s 410(2)(b)).

The Tribunal requires that ECT applications be submitted on the Tribunal’s Application for Approval to Perform Electroconvulsive Therapy s 410(1).

Members should confirm that the treating psychiatrist or the supervising psychiatrist is the applicant and has signed the application form.  The Tribunal frequently receives applications written and signed by Registrars.  This is not permitted by the Act.

Section 413 of the Act provides that in deciding whether to approve ECT, the Tribunal must have regard to the guidelines published by the Chief Psychiatrist under section 547(1)(f) of the Act.  Guideline (f) of the Chief Psychiatrist’s Guidelines incorporates by reference The ECT Guide: The Chief Psychiatrist’s Guidelines for the use of ECT in WA 2006 (the ECT Guide).

Members should familiarise themselves with the ECT Guide to assist in identifying and having regard to any variations from the recommended guidelines.

6.3.2     The the reasons why the patient’s psychiatrist recommends ECT

The application must must set out the reasons why the patient’s psychiatrist recommends ECT (s 410(2)(a)).  When considering these reasons, Tribunal members must have regard to the ECT Guide.

Chapter 1 of the ECT Guide (pp 9 – 16) details indications for the use of ECT.  It outlines primary indications for use (including major depressive episode, mania, and schizophrenia), special conditions (such as catatonia, Parkinson’s Syndrome, and dementia) and other conditions.  Chapter 1 also discusses cultural considerations.

Chapter 2 of the ECT Guide (pp 17 – 20) details selection and risk, contraindications, patient evaluation and referral as well as prescribing by neurologists.

6.3.3     The ECT treatment plan 

The application must also include an ECT treatment plan (s 410(2)(b)). The treatment plan must specify:

  • the mental health service at which the ECT treatments will be performed; and
  • the maximum number of ECT treatments proposed; and
  • the maximum period over which the ECT treatments will be performed; and
  • the minimum period to elapse between any two treatments.
6.3.3.1 The mental health service at which the ECT treatments will be performed

Section 412 of the Act provides that the Tribunal cannot approve ECT being performed on a patient unless it is satisfied that the mental health service at which it is proposed to perform ECT is approved under section 544 of the Act for that purpose. The Chief Psychiatrist maintains a Register of Approved ECT Sites in Western Australia.  Tribunal members are responsible for confirming that the proposed site is an approved ECT site.  The following sites are approved as at 17 November 2020:

  • Albany Health Campus
  • Armadale Hospital
  • Bentley Hospital
  • Fremantle Hospital
  • Hollywood Clinic
  • Joondalup Health Campus
  • The Marian Centre
  • Perth Clinic
  • Rockingham GeneralHospital
  • Sir Charles Gairdner Hospital
  • St.John of God Midland Public Hospital

Fiona Stanley Hospital is not an approved site for ECT.

Occasionally ECT applications include the name of the health service provider (such as South Metropolitan HSP) instead of the hospital, or list more than one proposed site.   Members should confirm that the proposed location identified in the application is a site included in the Register.

In response to the COVID-19 pandemic, the Chief Psychiatrist flagged the possibility that alternative ECT sites may need to be considered.

6.3.3.2 The maximum number of ECT treatments proposed

The ECT Guide does not specify a maximum number of ECT treatments which can be performed.  The appropriate number and frequency of treatments is a matter of clinical judgement and will depend on the patient’s circumstances. Nevertheless, the ECT Guide provides guidance on these matters for clinicians and the Tribunal.

Chapter 4 provides guidelines on the frequency and number of acute ECT treatments.  Single treatments are not recommended (ECT Guide 4.9.10).  The ECT Guide provides at 4.9.12 that:

It is usual practice to do 2 or 3 ECT treatments per week, administered on non-consecutive days.  In a major depression,  a course of ECT usually consists of up to 12 treatments.

One course may immediately follow another if clinically indicated with a second opinion (ECT Guide 4.9.13) but it is recommended that after 12 ECT treatments, the patient should be formally reassessed (including a second opinion) (ECT Guide 4.9.19).

Chapter 7 provides guidelines on the frequency and number of treatments for continuation ECT (C-ECT) and maintenance ECT (M-ECT).  Chapter 7 notes at 7.1.5 that:

[C-ECT], extending for the 6 to 12 months after acute ECT treatment, and [M-ECT], extending beyond the C-ECT period, appear to be effective in preventing relapse and recurrence in all conditions with primary indication for use….

C-ECT and M-ECT are typically given as outpatients, ranging from weekly to monthly, with some maintained at less frequent intervals, such as every 6 to 8 weeks (ECT Guide 7.3).  The ECT Guide recommends that overall treatment plans be reviewed and consent be obtained at least every 3 months or every 12 treatments, whichever is less (ECT Guide 7.3).

Although the appropriate number of treatments and the frequency of those treatments will vary depending on the facts and circumstances of each case, the ECT Guide provides some useful guidance for Tribunal members in evaluating the proposed ECT treatment plan.

In particular, Tribunal Members should note the recommendation in the ECT Guide at 4.9.19 that the patient should be formally reassessed (including a second opinion) after 12 ECT treatments.  This may impact on the Tribunal’s decision as to the maximum number of treatments it should approve.  Given this recommendation, Tribunal Members should consider whether it is appropriate to limit approval to one course of ECT (no more than 12 ECT treatments).  Doing so would permit the Tribunal to consider the re-assessment and second opinion evidence before authorising a second course of ECT.

Furthermore, Tribunal Members should note the recommendation in the ECT Guide at 7.3 that treatment plans for C-ECT and M-ECT should be reviewed and consent be re-obtained at least every 3 months (or every 12 treatments, whichever is less). This may impact on the Tribunal’s decision as to the maximum number of treatments it should approve, as well as the maximum time period over which the ECT treatments should be performed.  Given this recommendation, Tribunal Members should consider whether it is appropriate to limit approval for C-ECT and M-ECT to no more than 3 months (or 12 treatments, whichever is less).  Doing so would permit the Tribunal to consider this relevant evidence before authorising further treatment.

6.3.3.3 The maximum period over which the ECT treatments will be performed

The ECT Guide does not specify a maximum time period during which ECT treatments should be performed.  As discussed above in 6.3.3.2, however, the ECT Guide provides significant guidance for Members in this regard.

From time to time advocates argue that approvals for ECT should not extend beyond the term of the current involuntary treatment order.

Other than the requirement that the adult patient be an involuntary patient, the Act is silent on this point.

If an involuntary treatment order lapses or is revoked, ECT could not lawfully be administered under the Tribunal’s order whilst the patient is voluntary.

However, where an involuntary treatment order is continued by a valid continuation order, the ECT approval would appear to continue to remain in effect.  The Tribunal’s order approving ECT requires that it be performed in accordance with the treatment plan set out in the application.  The requirements of the treatment plan usually do not reference the existing involuntary treatment order.

Some factors that may assist members in deciding this question include:

  • having regard to the ECT Guide (particularly Chapters 4 and 7);
  • when the current involuntary order is due to expire (is it about to expire or is it a fresh order?);
  • when the patient’s capacity was last determined, how stable their capacity is and whether there is evidence that ECT might improve capacity;
  • any other relevant factors.
6.3.3.4 The minimum period to elapse between any two treatments

As noted in 6.3.3.2, Chapter 4.9.12 of the ECT Guidelines recommends that ECT be administered on ‘non-consecutive days’.

Accordingly, the Tribunal frequently receives applications proposing ’48 hours’ as the minimum time that must elapse between treatments.  In the past, this has led to unanticipated theatre scheduling issues.

For example, if a patient is scheduled for ECT at 9 am on Mondays, Wednesdays and Fridays, but on Monday receives treatment late, this would preclude the patient from receiving treatment at 9 am on the Wednesday as scheduled (as 48 hours would not have elapsed).

Many members suggest that psychiatrists amend the time frame in the application from ’48’ to ’40’ hours.  This provides greater flexibility for scheduling, whilst preserving the need to conduct treatment on non-consecutive days.  Members doing so must ensure that the application is amended by the applicant and returned to the Tribunal in its amended form before approving the application.

6.3.4     Timing

The Act does not provide a specific time period in which ECT applications must be heard.  This means that ECT applications must be brought before the Tribunal as soon as practicable (see s 484(c)) and with all convenient speed (Interpretation Act 1984 (WA) s 63).

As noted by the Court of Appeal in Geldert -v- Western Australia [2012] WASCA 226 at [50], ‘as soon as practicable’ does not mean immediately.  Rather:

The word ‘practicable’ is not defined in the Act. It has its natural and ordinary meaning of ‘capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible’: Wright v Western Australia (2010) 203 A Crim R 339 [26], [148].

‘As soon as practicable’ does not mean ‘as soon as possible’ (see Western Australia v Rothmans of Pall Mall (Australia) Pty Ltd[2001] WASCA 25 [24].

The Tribunal aims to list ECT applications to be heard within 7 days of receipt.  Whilst the Registry may be able to list the application sooner, procedural fairness demands that the patient be provided with sufficient opportunity to seek advice and representation.  The Registry must also ensure that all necessary parties are notified and given the opportunity to attend and be heard.

Where the patient is an adult, the Chief Psychiatrist has the power to approve Emergency ECT if the patient needs ECT:

  • to save the patient’s life; or
  • because there is an imminent risk of the patient behaving in a way that is likely to result in serious physical injury to the patient or another person (s 199).

The Chief Psychiatrist has delegated his authority to approve Emergency ECT to the clinical level across the public and private health sectors.  A delegate may approve one, or in exceptional circumstances, two treatments until a Tribunal can be convened.

Unfortunately, however, because single ECT treatments are not recommended (see ECT Guide 4.9.10), the fact that emergency ECT has been administered becomes an important factor in the Tribunal’s decision to approve ECT.  This potentially impedes the Tribunal’s discretion to decline approval.  Accordingly, emergency ECT should be strictly limited to the most serious issues.  It should not be used because of resource issues or in lieu of appropriate ward supervision.

The President and the Chief Mental Health Advocate have both discussed with the Chief Psychiatrist their concerns about whether the delegation of the emergency ECT powers to the clinical level statewide may dilute the Chief Psychiatrist’s ability to personally supervise and control the use of emergency ECT.

Finally, the Act does not specify any waiting period before reapplication after an unsuccessful application.  Accordingly, if the Tribunal makes a decision refusing an application for ECT, the patient’s psychiatrist may rectify any defects and reapply at any time (subject to section 445 of the Act concerning frivolous, vexatious or improper proceedings).

6.4 Nature of proceedings

Proceedings under Part 21 Division 6 are first-instance applications. This means that the Tribunal is the primary decision maker in its original jurisdiction.  Applications for ECT have not been the subject of earlier decision.

As primary decision makers, the Tribunal has broad discretion as to the weight to be given to the each of the various factors which must be considered when applying the statutory test (see 6.6 below). This discretion is partly structured.  The Act provides for factors which must be considered but also allows the Tribunal to take into account any other things that it considers relevant to making the decision (see section 414(1)(n)).

6.5 Parties

Section 411 provides that for proceedings in relation to an application for ECT, the parties to the proceeding are:

  • the patient; and
  • the applicant; and
  • any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter.

For a person to be joined as a party to the proceedings pursuant to section 411(c) there must be a specific order of the Tribunal to this effect.

6.6 Statutory test

The Tribunal cannot approve ECT unless a valid application is made under Part 21 Division 6, and it is satisfied of the factors set out in section 412 of the Act and has had regard to the Chief Psychiatrist’s guidelines and the factors outlined in section 414 of the Act.

6.6.1 A patient requiring approval

Part 21 Division 6 relates solely to the Tribunal’s approval of ECT being performed on:

  • children 14 years or older who are voluntary (ss 195 and 409(a)) or involuntary patients (ss 196(1)(a) & (2) and 409(b));
  • children 14 years or older who are mentally impaired accused required to be detained at an authorised hospital (ss 196(1)(b) & (2) and 409(b));
  • adult involuntary patients (ss 198(1)(a) & (2) and 409(c)); and
  • adult mentally impaired accused required to be detained at an authorised hospital (ss 198(1)(b) & (2) and 409(c)).

Before approving ECT under the Act, the Tribunal must be satisfied that the subject patient falls within the scope of Part 21 Division 6.  Other patients do not require approval and the Tribunal has no power to approve ECT for other patients (such as voluntary adults or children under the age of 14).

6.6.2 An approved ECT site

As discussed in 6.3.3.1, section 412(1) of the Act provides that the Tribunal cannot approve ECT being performed on a patient unless it is satisfied that the mental health service at which it is proposed to perform ECT is approved under section 544 of the Act for that purpose. The Chief Psychiatrist maintains a Register of Approved ECT Sites in Western Australia.  Tribunal members are responsible for confirming that the proposed site is an approved ECT site.  The following sites are approved as at 17 November 2020:

  • Albany Health Campus
  • Armadale Hospital
  • Bentley Hospital
  • Fremantle Hospital
  • Hollywood Clinic
  • Joondalup Health Campus
  • The Marian Centre
  • Perth Clinic
  • Rockingham GeneralHospital
  • Sir Charles Gairdner Hospital
  • St.John of God Midland Public Hospital

Fiona Stanley Hospital is not an approved site for ECT.

Occasionally ECT applications include the name of the health service provider (such as South Metropolitan HSP) instead of the hospital, or list more than one proposed site.   Members should confirm that the proposed location identified in the application is a site included in the Register.

In response to the COVID-19 pandemic, the Chief Psychiatrist flagged the possibility that alternative ECT sites may need to be considered.

6.6.2 Informed consent for voluntary children over age 14

Section 412(2) of the Act provides that the Tribunal cannot approve ECT being performed on children who have reached 14 years of age and are voluntary patients unless satisfied that the child has given informed consent as required by section 195(2)(a).

For the purposes of the Act, children are presumed not to have the capacity to make a decision about a matter relating to himself or herself unless the child is shown to have that capacity (Act s 14(1)).  Where a child does not have the capacity to make a decision, the child’s parent or guardian may make the decision on the child’s behalf (Act s 14(2)).

For the purpose of determining whether the child has the capacity to provide informed consent to ECT, the Tribunal must be satisfied that the child has the capacity to:

(a) understand the things that are required under section 19 to be communicated to the child about the treatment; and
(b) understand the matters involved in making the treatment decision; and
(c) understand the effect of the treatment decision; and
(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the treatment decision; and
(e) communicate the treatment decision in some way. (Act s 18).

Section 19 requires that before a person is asked to make a treatment decision about the provision of treatment to a patient, the person must be provided with a clear explanation of the treatment:

  • containing sufficient information to enable the person to make a balanced judgment about the treatment; and
  • identifying and explaining any alternative treatment about which there is insufficient knowledge to justify it being recommended or to enable its effect to be predicted reliably; and
  • warning the person of any risks inherent in the treatment. (Act s 19(1)).

The extent of the information required to be provided to the person is limited to information that a reasonable person in the person’s position would be likely to consider significant to the treatment decision unless the person providing the information knows, or could reasonably have been expected to know, that the person is likely to consider other information to be significant to the treatment decision.  (Act s 19(2)).

6.6.3 Regard to the ECT Guide

As discussed in 6.3 above, section 413 of the Act provides that in deciding whether to approve ECT, the Tribunal must have regard to the guidelines published by the Chief Psychiatrist under section 547(1)(f) of the Act.  Guideline (f) of the Chief Psychiatrist’s Guidelines incorporates by reference The ECT Guide: The Chief Psychiatrist’s Guidelines for the use of ECT in WA 2006 (the ECT Guide).

Members should familiarise themselves with the ECT Guide to assist in identifying and having regard to any variations from the recommended guidelines.

6.6.4 Regard to all of the section 414 factors

In deciding whether or not to approve ECT being performed on a patient, the Tribunal must also have regard to the following factors:

  • if the patient is a child and the Tribunal is not constituted with a child and adolescent psychiatrist — the views of a medical practitioner or mental health practitioner having qualifications, training or experience relevant to children who have a mental illness; and authorised by the Chief Psychiatrist for this paragraph.  [Note: the Chief Psychiatrist has not authorised any medical practitioners or mental health practitioners in accordance with this section.  This is discussed further in 6.6.4.1 below.];
  • the patient’s wishes, to the extent that it is practicable to ascertain those wishes [This is discussed further in 6.6.4.2 below.];
  • if the patient is an adult — the views of the person who is authorised by law to give informed consent to the electroconvulsive therapy being performed on the patient were that consent required;
  • if the patient is a child — the views of the child’s parent or guardian; if the patient has a nominated person — the views of the nominated person;
  • if the patient has a carer — the views of the carer;
  • if the patient has a close family member — the views of the close family member;
  • the reasons why the patient’s psychiatrist is recommending that the electroconvulsive therapy be performed;
  • the consequences for the treatment and care of the patient of not performing the electroconvulsive therapy;
  • the nature and degree of any significant risk of performing the electroconvulsive therapy; whether the electroconvulsive therapy is likely to promote and maintain the health and wellbeing of the patient;
  • whether any alternative treatment is available; the nature and degree of any significant risk of providing any alternative treatment that is available; any other things that the Tribunal considers relevant to making the decision.
6.6.4.1 Special concerns arising where the patient is a child 

It is unusual for the Tribunal to consider applications for ECT involving children.  When doing so, the Registry will take all possible steps to list the matter before a panel which includes a child and adolescent psychiatrist.

A ‘child and adolescent psychiatrist’ within meaning of the Act means ‘a psychiatrist who has qualifications and clinical training in the treatment of mental illness in children’.

The President (who bears the statutory responsibility for constituting the Tribunal) interprets the requisite ‘qualifications and clinical training in the treatment of mental illness in children’ to be in addition to the qualifications and training necessary to be a psychiatrist within the meaning of the Act.

For this purpose, the President accepts the following as evidence of ‘qualifications and clinical training in the treatment of mental illness in children’:

  • Completion of the RANZCP’s Certificate of Advanced Training in Child and Adolescent Psychiatry; or
  • Accredited Membership of the RANZCP’s Faculty of Child and Adolescent Psychiatry.

Section 414(1)(a) & (2) provide that in the absence of child and adolescent psychiatrist, the Tribunal may have regard to the views of:

  • a medical practitioner or mental health practitioner having qualifications, training or experience relevant to children who have a mental illness; and
  • who is authorised by the Chief Psychiatrist for this purpose.

However, the Chief Psychiatrist has not authorised any medical practitioners or mental health practitioners for the purpose of this section.  The President wrote to the Chief Psychiatrist in 2018 indicating the importance of doing so, but the Chief Psychiatrist has not yet undertaken this task.  This means that it is factually and legally impossible to comply with section 414 if a child and adolescent psychiatrist member is unavailable to hear an application for ECT under section 409(a).

Faced with this issue, the President’s practice is to decline to constitute a Tribunal for ECT involving a child if a child and adolescent psychiatrist member is not available to hear the application.

6.6.4.2 Ascertaining the patient’s wishes 

For the purpose of the Tribunal ascertaining the patient’s wishes under section 414(1)(b), Part 2 Division 4 (Wishes of a person) applies.  This includes (as specified in section 8 of the Act):

  • any treatment decision in an advance health directive made by the person that is relevant to the matter;
  • any term of an enduring power of guardianship made by the person that is relevant to the matter;
  • anything that the person says or does that is relevant to the matter if it is said or done at a time that is reasonably contemporaneous with when those wishes are required to be ascertained;
  • any other things that the Tribunal considers relevant to ascertaining those wishes.
6.6.5    Further resources on ECT

It is helpful for Tribunal Members to become familiar with Part 14 Division 1 of the Act, containing various provisions dealing with ECT (ss 192 – 201).

Tribunal Members should note that section 193 creates an offence where ECT is not performed in accordance with the Act.  A fine $15,000 and imprisonment for 2 years may be imposed.

The Royal College of Australian and New Zealand Psychiatrists also provide useful guidelines of interest to Tribunal Members.

6.7 Onus of proof

It is generally accepted that there is no onus of proof in administrative review provisions (see Polizzi v Commissioner of Police [No 2] [2017] WASC 166 [67]) and it is generally undesirable to refer even to a ‘practical onus’ (Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 [115]).  This is because it ‘tends to distract from the critical terms of the legislation which define and delimit the Tribunal’s powers and the circumstances in which those powers may be exercised.’

Proceedings in Part 21 Division 6 are not review proceedings within the meaning of section 455 of the Act.  Nevertheless, the powers conferred on the Tribunal are administrative and not judicial (see, by analogy, GS -v- MS [2019] WASC 255) and the nature of the inquiry conducted by the decision-maker depends on the statutory context.  Accordingly, the same caution about framing the weight of the evidence in the context of onus of proof would seem applicable to matters determined under Division 6.  Members should look to the statutory language of its powers to determine the conditions for the valid exercise of the Tribunal’s power.

6.8 Tribunal powers

Section 415 provides that when deciding an application, the Tribunal may decide the application by —

  • approving the electroconvulsive therapy being performed in accordance with the treatment plan set out in the application; or
  • approving the electroconvulsive therapy being performed in accordance with the treatment plan set out in the application subject to the maximum number of treatments with electroconvulsive therapy to be performed being reduced to the number specified by the Tribunal; or
  • refusing to approve the electroconvulsive therapy being performed.

It is not clear why the Act uses the discretionary term ‘may’.

6.9 Determinations and orders available

The Tribunal’s standard orders have been carefully prepared to incorporate the range of statutory options available for most situations you will encounter in a hearing.  The standard orders are always open to revision, and suggestions should be sent to the President for consideration and discussion with legal members.

The standard orders available for a completed application under section 410 are set out here.

6.10 Adjournments

6.10.1   Statutory power to adjourn?

The Act contains no express statutory power to adjourn.  The only express reference to adjournments is in section 457 of the Act, which provides, in its entirety, as follows:

  • The Tribunal may conduct a hearing in the absence of a party if satisfied that —
    • the party has been given notice of the hearing; and
    • it is in the best interests of the person concerned in the proceeding for the hearing not to be adjourned.

The Mental Health Bill 2013: Explanatory Memorandum (Legislative Assembly at 103 and Legislative Council at 101) specifically refers to the use of adjournments in ECT applications.  It notes:

To clarify, the MHT may also adjourn the matter to obtain a further opinion or additional information.

6.10.2   The Tribunal’s position on adjournments

Adjournments are distressing and inconvenient for patients, and a significant waste of public resources to hospitals, treating teams, MHAS, MHLC, and the Tribunal.  However it may be necessary to resort to an adjournment should the Tribunal determine that further information is required.

6.10.3   Adjournment standard orders

The Tribunal’s standard orders have been carefully prepared to incorporate the range of statutory options available for most situations you will encounter in a hearing.  The standard orders are always open to revision, and suggestions should be sent to the President for consideration and discussion with legal members.

The adjournment standard orders available for an application under section 410 are set out here.

6.11 Concurrent review under section 386 or 387

As discussed at 6.6.1 above, the Tribunal must be satisfied that adult patients are ‘involuntary’ patients at the time an ECT application is considered.  This requires consideration of the section 25 criteria in all applications. See Chapter 1 at 1.7.2 and 1.7.3 and Chapter 2 at 2.7.2 and 2.7.3.

Whether the Tribunal is also empowered to conduct a formal review of the patient’s involuntary treatment order under section 386 or 387 of the Act will depend on the timing.

An initial review may take place any time within 35 days of the date of the involuntary treatment order.  A periodic review, however, has a much narrower time frame.

In essence, section 387(2) creates a ‘periodic review window’, within which the periodic review must occur.  The review cannot take place before one date (the prescribed number of days) or after a second date (the periodic review period) from the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing.  Please see Chapter 2.3.3 Timing, which includes a quick reference table at 2.3.3.3.  Click here for a ready reckoner to calculate the periodic review window for adult patients.

Registry staff will assess each application against the review period windows and list an initial or periodic review on the same day if it is due.  In such cases, Tribunal Members will receive a Record of Proceeding and a Notice of Decision for each separate matter.

Page reviewed 19 November 2020