When to apply to the Tribunal
The information on this page is about how to apply to the Tribunal for authority to perform ECT on a voluntary patient under the Mental Health and Wellbeing Act 2022 (the MHW Act).
For more comprehensive information about when psychiatrists can provide ECT, and how the use of ECT is regulated in Victoria, see the Department of Health website.
Voluntary adults over the age of 18
A psychiatrist can apply to the Mental Health Tribunal for authority to perform ECT on a voluntary adult over 18 years old if they:
- do not have capacity to give informed consent, and
- there is no less restrictive way for them to be treated, and
- they have an instructional directive giving informed consent to ECT or their medical treatment decision maker gives informed consent in writing to ECT.
Voluntary young people under the age of 18
A psychiatrist can apply to the Mental Health Tribunal for authority to perform ECT on a voluntary young person under the age of 18 if they:
- have given informed consent to ECT in writing, or
- do not have capacity to give informed consent but their medical treatment decision maker has given informed consent to ECT in writing and there is no less restrictive way for them to be treated.
What does informed consent mean?
A person has the capacity to give informed consent to ECT if they are able to:
- understand information given to them relevant to deciding whether to have ECT
- remember information given to them relevant to deciding whether to have ECT
- use or weigh that information to make a decision, and
- communicate their decision by words, gestures or any other means.
What is an instructional directive?
An instructional directive is an express statement in an advance care directive of a person’s medical treatment decision. It takes effect as if the person who gave it has consented to or refused the commencement or continuation of medical treatment.
An instructional directive only comes into effect after the person receiving treatment no longer has decision-making capacity. This is distinct from a values directive which records a person’s preferences or values for medical treatment as part of a non-binding statement.
What is a medical treatment decision maker?
Under section 26 of the Medical Treatment Planning and Decisions Act 2016, an adult who has decision-making capacity may formally appoint a medical treatment decision maker.
If a person who is a voluntary patient hasn’t formally appointed a medical treatment decision maker but has a guardian, the guardian is the medical treatment decision maker if their appointment includes authority to make medical decisions for the person.Otherwise the medical treatment decision maker of an adult is the first of the following persons who is reasonably available and willing and able to make the medical treatment decision:
- the spouse or domestic partner of the person
- the primary carer of the person
- the first of the following and, if more than one person fits the description, the oldest of those persons:
- an adult child of the person;
- a parent of the person;
- an adult sibling of the person.
The medical treatment decision maker’s role is to make medical treatment decisions on behalf of an adult who does not have decision-making capacity. The medical treatment decision maker must be reasonably available and willing to make the medical treatment decision.
If a voluntary adult does not have an instructional directive, consent for ECT must be obtained from the medical treatment decision maker.
Medical treatment decision maker of a person under 18
The medical treatment decision maker of a person under the age of 18 years is the young person’s parent or guardian or other person with parental responsibility for the child who is reasonably available and willing and able to make the medical treatment decision.
How to apply to the Tribunal
Applications for voluntary adults
A psychiatrist can apply to give a voluntary adult ECT by submitting the following documents to the Tribunal by email to firstname.lastname@example.org:
- MHWA 132A Application for ECT - Voluntary Adult without capacity to consent and
- Report on electroconvulsive treatment for voluntary adult (MHT 39) and
- The advance care directive document containing the instructional directive giving informed consent to electroconvulsive treatment or a signed MHWA 131A Informed consent to ECT by medical treatment decision maker form.
Applications for voluntary young people
A psychiatrist can apply to give a voluntary young person ECT by submitting the following documents to the Tribunal by email to email@example.com
- Report on electroconvulsive treatment for voluntary young person (MHT 8)
- A copy of the young person’s informed consent in writing on a MHWA 131 Informed consent to ECT form or a signed MHWA 131A Informed consent to ECT by medical treatment decision maker form if the young person does not have capacity to give informed consent.
What happens after you apply to the Tribunal?
The Tribunal must schedule and complete a Tribunal hearing for the application within 5 business days after receiving the application, or as soon as practicable after receiving the request if a request for an urgent hearing is made.
An applicant psychiatrist may request an urgent hearing of the application if they are satisfied that the course of ECT is necessary as a matter of urgency:
a) to save the life of a person in respect of whom the application is made
b) to prevent serious damage to the health of a person in respect of whom an application is made, or
c) to prevent a person in respect of whom the application is made from suffering or continuing to suffer significant pain or distress.
How will the hearing be conducted
Tribunal hearings are usually conducted as online meetings using Microsoft Teams.
The Tribunal will tell you how you can participate.
What the health service must do after applying to Tribunal
Provide the details of people who should be notified of the hearing and who should attend the hearing
After the Tribunal has received the application it will ask the health service to provide the details of people who should be notified of the hearing and who will attend the hearing.
Provide access to specified documents
In addition to the documents provided to apply to the Tribunal, the health service must provide the Tribunal and the patient with access to certain specified documents if they exist.
The following list of specified documents is taken from Practice Note 4, some documents will not be relevant to a person receiving treatment on a voluntary basis:
- Latest discharge or admission summaries
- Consultant notes in date order for the last three reviews
- Notes from registrar/medical officer reviews in date order during the three months prior to the hearing
- Notes from case manager reviews in date order during the three months prior to the hearing
- Nursing notes for up to a month preceding a hearing held during an inpatient admission
- Advance Statement of Preferences
- Nominated Support Person form
- Second psychiatric opinion report
- Correspondence from private/specialist practitioners or general practitioners
- Forensic, social work, occupational therapy, psychological and neuropsychological reports
- Any reports related to additional therapeutic interventions offered by the service
- Information about non-clinical or community supports involved in the person's care
- CMI records
- Any other documents which the treating team believes are relevant to the hearing.
The Tribunal’s Registry team will tell the health service how to provide the Tribunal with access to these documents.
Attend the Tribunal hearing
The applicant psychiatrist (or their delegate) must attend the hearing. Other staff involved in the patient’s treatment are also encouraged to attend.
The health service should also support the patient to participate in the hearing.
What happens at the Tribunal hearing?
Tribunal hearing usually take about an hour. There will be three Tribunal members at the hearing:
- a legal member
- a psychiatrist member
- a community member.
The Tribunal tries to conduct hearings with minimal legality and formality. The Tribunal’s focus is on hearing from everyone who attends the hearing, and for the discussion to be constructive and respectful of all participants. At the end of the hearing the Tribunal tells you their decision.
What will the Tribunal decide?
The Tribunal will decide whether or not to make an order allowing ECT to be performed as part of the patient’s treatment.
If the Tribunal makes an ECT order it must decide:
- how long the order will last (up to a maximum of 6 months)
- the number of treatments allowed to be provided (up to a maximum of 12 treatments).
A psychiatrist can end the patient's ECT treatment sooner if the number of treatments approved by the Tribunal are not needed. In addition the MHW Act specifies a range of circumstances where an ECT order will end – refer to section 107 of the MHW Act.
How the patient can prepare for the hearing
The patient can prepare for the hearing by:
- asking someone to help them prepare for and/or attend the hearing with them like a family member, friend, lawyer or advocate (see Find someone to help)
- reading the report prepared for the hearing
- planning what they want to say about whether they need ECT.
The health service should support the patient to prepare for the hearing.
For more information see the Tribunal’s Guidelines for ECT hearings and orders.