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Re ICO [2023] QMHC 1

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Date: 10 May 2023
Court: Mental Health Court
Judicial Officer: Wilson J
Human Rights Act 2019 (Qld) Sections: ss 13, 15, 25, 29, 30, 37
Rights Considered: Right to recognition and equality before the law; Right to privacy and reputation, Right to liberty and security of person, Right to humane treatment when deprived of liberty; Right to health services
Other Legislation: Charter of Human Rights and Responsibilities Act 2006 (Vic); Guardianship and Administration Act 2000 (Qld); Health and Other Legislation Amendment Bill 2021 (Qld); Health and Other Legislation Amendment Act 2022 (Qld); Mental Health Act 2016 (Qld) ss 3, 5, 7, 9, 14, 18, 232, 233, 234, 421, 509, 539, 544, 546, 639, 685; Mental Health Act 2014 (Vic) s 68; Mental Health Act 2009 (SA) s 5A; Public Health Act 2005 (Qld) Chapter 4A; Explanatory notes to the Health and Other Legislation Amendment Bill 2021
Keywords: Health, Mental Health, Guardianship

This case involved an appeal of a Mental Health Review Tribunal decision to approve treatments of electroconvulsive therapy (ECT) for the appellant against her wishes. The Court had to consider whether the appellant could provide informed consent and whether ECT was appropriate in the circumstances. The Court acknowledged the appellant’s right to recognition and equality before the law (section 15), right to privacy (section 25), right to liberty and security of person (section 29), right to humane treatment when deprived of liberty (section 30), and right to access health services without discrimination (section 37(1)) and considered the application of the Human Rights Act 2019 (Qld) was consistent with its task under the Mental Health Act 2016 (Qld).

This case was an appeal of a decision of the Mental Health Review Tribunal which required the appellant undergo 12 treatments of ECT without her consent. The appellant argued that she did not need or want the treatment and expressed concerns about her memory and cognition that may develop if she underwent the prescribed treatment. The Court therefore had to consider whether the appellant could give informed consent to the ECT treatment and whether ECT treatment was appropriate in the circumstances.

Section 509 of the Mental Health Act 2016 (Qld) provides the factors the tribunal must consider in determining whether to give approval for ECT to be performed on a person. The Court noted the s 509 criteria, which was introduced in 2022, adopts a “more rights-based approach, including by removing the ‘best interests’ test for adults and specifically requiring consideration of an adult’s capacity to provide informed consent, where relevant” (at [66]). The Court noted that, as per the extrinsic material, the purpose of the change from a “best interests” test to respecting a person’s decision to decline to undergo ECT where they have the capacity to give informed consent was to “better support decision makers in complying with their obligations under the Human Rights Act 2019 (Qld)” and would promote a person’s right to recognition and equality before the law (at [67]-[68]).

The Court considered that the objects and principles of the Mental Health Act 2016 (Qld) were compatible with the Human Rights Act 2019 (Qld) “despite being expressed in slightly different terms” (at [79]). It was noted that the consideration of whether there is a less restrictive and reasonably available way to achieve the purpose of an Act provided in s 13 of the Human Rights Act 2019 (Qld) was reflected in s 3(2) of Mental Health Act 2016 (Qld) (at [80]).

The Court considered that the applicant’s right to recognition and equality before the law (section 15), right to privacy (section 25), right to liberty and security of person (section 29), right to humane treatment when deprived of liberty (section 30), and right to access health services without discrimination (section 37(1)) were engaged in making a decision to approve ECT treatment (at [81]). It was also noted that ‘a person must not be subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent’ under section 17(c) of the Human Rights Act 2019 (Qld) (at [82]).

The Court examined Victorian precedent addressing the interpretation of capacity to give informed consent in the context of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and provided its own list of factors relevant to the determining capacity, including to apply the test “in a non-discriminatory manner to ensure people with mental illness are not deprived of their equal rights” and recognising that “the test is not to be applied so as to produce social conformity at the expense of personal autonomy” (at [120]).

The Court considered the considerations raised by the Human Rights Act 2019 (Qld) were consistent with the scheme under the Mental Health Act 2016 (Qld) and no further substantive discussion of human rights occurred in finding that the appellant could not give informed consent but that there may be less restrictive treatment practices available. Accordingly, the Court allowed the appeal and set aside the Tribunal’s decision to approve ECT treatment.

View the judgement: Re ICO [2023] QMHC 1