Page 3300 - Week 10 - Friday, 26 August 2005
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Mr Speaker, when I raised that with people from the health department, I felt that there was a rather dismissive approach to this world body, which we can assume is made up of some of the most expert people on these topics. While we may invoke our global institutions on one hand, I do not think we should dismiss them on the other when it does not suit us.
Guidance on the use of ECT published by the United Kingdom’s National Institute of Clinical Excellence, kindly provided to my office by Mental Health ACT, says that ECT should be used only when the decision is based on a documented assessment of the risks and potential benefits and the individual has provided valid consent obtained without pressure or coercion. This guidance specifically refers to the use of advanced directives in cases where individuals are not able to give informed consent at the time treatment may be needed.
I believe that the bill before us today could be strengthened to ensure that there is a thorough and documented assessment of the risks and benefits of the treatment and that all possible steps are taken to provide an opportunity for the individual to make an informed decision. It is not enough that the Mental Health Tribunal determines that ECT is the most appropriate treatment in an emergency. The legislation should go further to establish that the treatment is consistent with the needs and preferences of the individual and based on a full assessment of their background.
The capacity of the Mental Health Tribunal to make these decisions, particularly in emergency situations, should not be overestimated. To quote Justice Crispin of the ACT Supreme Court:
It should be noted that whilst the Tribunal is required to observe the rules of natural justice it is not bound by the rules of evidence, but may inform itself on any matter relevant to such a proceeding in such a matter as it thinks fit. It is perhaps inevitable that the Tribunal will frequently be called upon to determine issues without direct evidence of the details of the person’s relevant history.
There are numerous examples of psychiatric treatment orders being overturned on appeal to the Supreme Court. It is not an infallible process and to cut short the period between application and hearing, reducing the time available for evidence to be gathered and advocates to be engaged, may have a significant impact on the quality of the decision that is made.
I acknowledge that an emergency ECT order is time limited and is also limited in relation to the number of treatments administered. However, the risk of significant side effects including, but not limited to, permanent memory loss is very real and, even if only one person is affected, it matters. This is not a numbers game: if we think only two people might be affected, we can accept it; but if we thought that 20 might be affected, we would not. No, that is not the way we should engage in this. It is our job to make decisions that respect individual wellbeing and human rights, particularly when people are in a situation where they are vulnerable.
The question for legislators is whether the safeguards in this bill are adequate and whether the facts of each case will be adequately explored. I cannot say that I am convinced. For this reason, I would like the bill to be referred to the Standing Committee
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