Laws about Electroconvulsive Treatment (ECT)

Electroconvulsive treatment (ECT) is a medical procedure to induce a seizure within the brain. It is used to treat mental illness. It is performed under general anaesthetic.

A course of ECT is up to a maximum of 12 treatments. These treatments are performed over a period of time not to exceed six months. ECT is usually given three to four times a week, but this varies from person to person.

When ECT can be given

ECT can be given with or without your consent. This depends on whether you have been assessed to have capacity to give informed consent.

Capacity to give informed consent

• if you want ECT, you must have capacity to give informed consent to have it
• if you don’t have capacity to give informed consent and your psychiatrist wants to give you ECT, they must apply to the Mental Health Tribunal for an order allowing them to give you ECT.

Giving informed consent means that you have understood and considered the information you need to make a decision about treatment. You can only give informed consent if you have capacity to do so. Your psychiatrist should start by assuming that you do have capacity.

You will have capacity to give informed consent to a particular treatment if you can:

• understand the information you’re given about the treatment
• remember that information
• use or weigh that information
• communicate your decision.

Your capacity to give informed consent must be checked at a time and in a place when it is most likely to be an accurate assessment. Your psychiatrist must give you support to build your capacity. Your psychiatrist should assess your capacity regularly as it can change.

If you want ECT

If you are 18 or over, you must meet all of the following criteria to choose to have ECT:

• you have capacity to give informed consent
• you provide consent in writing.

If you’re under 18, the psychiatric must apply to the Mental Health Tribunal for approval. They must apply even if you want to have ECT or your parent or guardian wants you to have ECT.

If you have given consent to ECT, you can decide to stop having it at any time.

Compulsory ECT

Compulsory ECT means having ECT, even if you don’t want it.

If you’re 18 or over, ECT can only be given without your consent if:

• your medical treatment decision-maker or your instructional directive says you should have ECT because you don’t have capacity to give consent.
• your psychiatrist has applied to the Mental Health Tribunal, and they have decided all of the following that:
  • you lack capacity to give informed consent
  • there’s no less restrictive way to treat you.

If you psychiatrist believes you don’t have capacity to give informed consent to ECT, you can ask them to explain why.

For more information about medical treatment decision-makers and instructional directives, see the Office of the Public Advocate website.

When your ECT treatment should stop

You psychiatrist must stop giving you ECT if they think either of the following:

• you now have the capacity to give informed consent and do not ECT
• ECT is no longer the least restrictive treatment option for you.

Least restrictive means you need to be given as much freedom as you can, based on your individual circumstances.

What is restrictive for one person might not to be restrictive for someone else.

If you’re under 18, you can talk to a lawyer to find out about your rights.

Mental Health Tribunal

The Mental Health Tribunal must decide on the ECT application within five business days of receiving it.

The authorised psychiatrist who is applying to the Mental Health Tribunal must give you a report explaining why you need ECT, at least 48 hours before the hearing.

You can ask staff, a lawyer, or advocate for help to prepare for the hearing.

You have the rights to:

• a copy of the report
• view the documents your treating team have given the tribunal at least two business days before the hearing. Note: Your psychiatrist can ask the tribunal to stop you reading the report or documents if it could cause serious harm to yourself or someone else
• provide your own statement or evidence
• request a statement of reasons for the tribunal’s decision within 20 business days of your hearing.

How the tribunal makes a decision

In deciding if you should have ECT, the Mental Health Tribunal must consider:

• your views and preferences about ECT and any other alternative treatments
• the reasons why you hold these views and preferences
• the content of your advanced statement if you have one
• the views of your nominated person if you have one
• the views of your guardian if you have one
• the views of your carer
• the likely consequences if the ECT is not performed
• any second opinion that has been obtained
• the views of your parent(s) if you are under 16
• the views of anyone with legal authority to consent to treatment if you are under 18.

If the tribunal finds that you are able to give informed consent and are not consenting to the treatment, it will not approve the course of treatment.

If the tribunal finds ECT is not the least restrictive treatment, it will not approve ECT.

If the Mental Health Tribunal agrees to you having ECT, the order will say how many ECT treatments can be given to you and the date when the order will end.

Urgent ECT

The Mental Health Tribunal can hold a hearing as soon as possible if it receives an urgent application because ECT is necessary to:

• save your life
• prevent serious damage to your health, or
• prevent you from suffering or continuing to suffer significant pain or distress.

Legal help at a tribunal hearing

With your consent our advocates can make a referral to Victoria Legal Aid if you would like to have a lawyer represent you at a tribunal hearing about ECT.

This service is free.

If you prefer to represent yourself at the tribunal, our advocates can help you understand how the tribunal works, and give you information which will help you get ready to speak on your own behalf.

In most instances an advocate will not attend tribunal hearings with you, but you can take a support person with you.

If you are unhappy with the tribunal decision

If the tribunal makes a decision you disagree with, you can:

• apply for a revocation of the treatment order (if you are still on one)
• ask for (in writing) a statement of reasons for decision
• apply to Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision.

You have 20 business days after the decision to request a statement of reasons. You also have 20 business days from the decision, or from receiving the statement of reasons, to apply to VCAT for a review.

You have the right to information

Your treating team must give you information about ECT, any alternative treatments, and explain the reason they are suggesting it for you.

Some questions you can ask them are:

• What is ECT used for and how is it given?
• Why are you suggesting ECT for me?
• What happens after I have ECT?
• Will ECT affect my memory?
• Will you assess my capacity before each treatment?
• Do I have to have ECT if I don’t want to?
• What happens between treatments for ECT?
• What other treatment options are available?
• What are the effects and risks of ECT?
• How many treatments of ECT are you suggesting?
• How long will the treatment of ECT be?
• What will you do if I have capacity and say I do not want another treatment?

If your treatment team applies for an ECT, they must:

• explain the reason for applying for an order
• give you information about your rights either in writing or spoken, and in your preferred language
• give you clear answers to your questions
• give you this information at a time that's right for you to consider it.

How an advocate can support you

We do not provide legal representation or specific advice about how the law applies in your particular situation.

Speak to an advocate who can refer you, with your consent, for free legal assistance from Victoria Legal Aid.

More information

• Going to The Mental Health Tribunal
• Having more say over your treatment
• Principles of the Mental Health and Wellbeing Act
• Electroconvulsive treatment statement of rights – Mental Health and Wellbeing Act 2022 (under 'Statements of rights (English and translated versions)').