Laws governing how electroconvulsive treatment (ECT) can be administered in Victoria will be tested for the first time in the Supreme Court today.
A woman with schizophrenia, known only as NJE, is fighting a Mental Health Tribunal order forcing her to undergo 12 sessions of ECT against her will.
On two occasions in March, the woman's treating team failed to get an ECT order to treat the woman from the Mental Health Tribunal.
At both hearings she had a lawyer present.
However, at a third hearing the tribunal ordered the treatment without allowing the patient time to get legal advice.
Victoria Legal Aid (VLA) is now appealing a Victorian Civil and Administrative Tribunal hearing upholding the compulsory ECT order in the Supreme Court.
VLA spokesman Dan Nicholson is concerned current safeguards are not working, with the majority of patients not legally represented.
"Any decision to carry out ECT against a person's will is a significant one," Mr Nicholson said.
"It's a treatment that many people find invasive and distressing."
Meaning of 'least restrictive' option examined
Each year, there are around 700 hearings in which the tribunal decides whether a patient receives ECT or not.
Under Victorian law, electroconvulsive treatment can be forcibly administered if the tribunal decides the patient cannot give informed consent or no other "less restrictive" treatment will work.
However, ECT without consent needs to be agreed to by a legal member, a qualified psychiatrist and a community member, and patients have the right to a lawyer.
Legal Aid is also representing a man diagnosed with schizophrenia who underwent six treatments against his will, until his psychiatrist determined he had the capacity to consent and the treatment stopped.
"In Victoria, people have legal representation in only 8 per cent of ECT hearings, compared to 76 per cent in NSW," Mr Nicholson said.
"The tribunal approves 90 per cent of ECT applications when a lawyer is not present, but only 50 per cent when a person facing ECT is represented by a lawyer."
The Supreme Court will be asked to rule on the notion of capacity to consent to ECT and the interpretation under the act of "least restrictive" treatment option.
