CRPD/C/24/D/36/2016
party argues that the author has also omitted any factual information relating to any other
relevant court or tribunal hearings or other methods of relief or resolution that he could have
undertaken. It notes that States parties are explicitly required under article 22 (2) of the
Convention to protect the privacy of personal, health and rehabilitation information of
persons with disabilities on an equal basis with others, and observes that in the absence of
appropriate authorizations for release by the author, it is not able to access a number of
documents, in accordance with domestic privacy law, which are central to the allegations
contained in the communication.
4.3
The State party provides information on the applicable legal framework. It notes that
in the State of Victoria, compulsory mental health treatment is regulated by the Mental Health
Act 2014. The Act sets out the criteria for compulsory mental health treatment and establishes
the Mental Health Tribunal. The Act establishes a supported decision-making model.
Substitute decision-making is only used as a last resort. The model of supported decisionmaking enables and supports compulsory patients to make decisions about their treatment
and determine their individual path to recovery. A presumption of capacity is the foundation
of the supported decision-making model and the Act provides that all persons are presumed
to be able to make treatment decisions. The Mental Health Act 2014 seeks to minimize the
use and duration of compulsory treatment to ensure that the treatment is provided in the least
restrictive and intrusive manner possible. It achieves this by introducing specific criteria for
compulsory treatment, creating treatment orders that operate for a fixed duration and
requiring timely oversight by an independent mental health tribunal. The Mental Health Act
2014 establishes the Mental Health Tribunal as an independent body. The Tribunal makes
treatment orders for patients. The Tribunal must be satisfied that all the treatment criteria
apply to the patient before making a treatment order. In coming to its decision, the Tribunal
must take a holistic approach that considers a range of factors, including the patient’s
recovery goals and treatment preferences and the views of the nominated person,1 carer or
guardian, and must take into account any second psychiatric opinion report. Each division of
the Tribunal consists of three members: a lawyer, a registered medical practitioner and a
member of the community. A party to a Tribunal hearing (such as a patient or the authorized
psychiatrist) may request a written statement of reasons for a Tribunal determination. A party
to a Tribunal hearing may also apply to the Victorian Civil and Administrative Tribunal for
review of any decision made by the Mental Health Tribunal within 20 business days after a
Tribunal determination or, if the patient has requested a written statement of reasons, within
20 business days of receiving the statement of reasons. The Tribunal may refer a question of
law to the Supreme Court of Victoria for determination. This may occur at the request of a
party or on the initiative of the Tribunal.
4.4
The State party argues that electroconvulsive therapy is considered an effective
treatment for some mental illnesses. It notes, however, that the decision to prescribe
electroconvulsive therapy should be based on a thorough physical and psychological
evaluation of each person, taking into account their present condition, past history and
treatment responsiveness, the impact of the illness on their quality of life, and their views and
preferences. The Mental Health Act 2014 provides that electroconvulsive therapy may not
be performed on a patient who does not have the capacity to give informed consent for such
therapy, without the approval of the Mental Health Tribunal. It seeks to maximize the
patient’s autonomy wherever possible. Where a patient does not have capacity to consent to
electroconvulsive therapy, the Tribunal must decide whether electroconvulsive therapy is the
“least restrictive treatment”. For this purpose, the Tribunal will consider the patient’s views
and preferences about electroconvulsive therapy and any beneficial alternative treatments
that are reasonably available, and the reasons for the patient’s views and preferences,
including any recovery outcomes the patient would like to achieve; the views and preferences
of the patient, expressed in an advance statement; and the views of the nominated person,
guardian or carer. The Tribunal will also consider whether electroconvulsive therapy is likely
to remedy the mental illness or lessen the ill-effects, and consider any second psychiatric
opinion that has been obtained by the patient and given to the psychiatrist. A patient may
1
A person nominated by the patient who will be able to receive information and to support the patient
for the duration of the compulsory treatment order. The nominated person will assist the patient in
exercising their rights and help represent the patient’s interests.
3