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Ect-Reviewgroup.Pdf A review of the literature, the Acts of Parliament and relevant current practices on regulation of the use of ECT in New Zealand and in other like nations Prepared for the ECT Review Group by Jeanne Snelling LLB(Hons) RCompN 2004 1 TABLE OF CONTENTS EXECUTIVE SUMMARY........................................................................................................................ 3 1 REVIEW METHODOLOGY ....................................................................................................... 13 Part I 2 MEANS BY WHICH ECT MAY BE PROVIDED IN NEW ZEALAND................................ 14 3 ELECTIVE / VOLUNTARY ECT – REQUIREMENTS OF A LEGALLY VALID CONSENT....................................................................................................................................... 15 4 ECT WITHOUT CONSENT – THE DOCTRINE OF NECESSITY ...................................... 27 5 ECT WITHOUT CONSENT – THE PARENS PATRIAE POWER ..................................... 31 6 ECT WITHOUT CONSENT - THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988................................................................................................... 32 7 ECT WITH OR WITHOUT CONSENT – THE MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992....................................................................... 36 Part II Legislative Frameworks 8 ENGLAND....................................................................................................................................... 48 9 SCOTLAND .................................................................................................................................... 54 10 AUSTRALIA – QUEENSLAND................................................................................................... 56 11 AUSTRALIA – WESTERN AUSTRALIA .................................................................................. 58 12 AUSTRALIA – VICTORIA........................................................................................................... 63 13 AUSTRALIA – NEW SOUTH WALES....................................................................................... 67 14 AUSTRALIA – NORTHERN TERRITORIES........................................................................... 70 15 AUSTRALIA – AUSTRALIAN CAPITAL TERRITORIES .................................................... 72 16 AUSTRALIA – SOUTH AUSTRALIA........................................................................................ 73 17 CANADA – ONTARIO................................................................................................................. 77 18 CANADA – QUEBEC .................................................................................................................... 83 19 CANADA – ALBERTA.................................................................................................................. 86 20 EUROPE ........................................................................................................................................... 87 21 .UNITED STATES – CALIFORNIA ............................................................................................ 88 Part III 22 INSTITUTIONAL AND PROFESSIONAL REGULATION ................................................. 94 23 APPENDICES............................................................................................................................... 108 Appendix 1: United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991) Appendix 2: I Freckleton, B Wilson “ Electroconvulsive Therapy: Law, History and Practice” (2001) 8 Journal of Law and Medicine 389 2 EXECUTIVE SUMMARY 1 REVIEW METHODOLOGY The aim of the review was to produce a review of the literature, the Acts of Parliament and relevant current practices on regulation of the use of ECT in New Zealand and other like nations. PART I 2 MEANS BY WHICH ECT MAY BE PROVIDED IN NEW ZEALAND Over the last two decades ECT has attracted the imposition of special regulatory controls in most jurisdictions reviewed in this paper. In New Zealand, special regulation of ECT applies only in respect of compulsory patients treated pursuant to the Mental Health (Compulsory Treatment and Assessment) Act 1992. However, ECT may potentially be provided in several circumstances in New Zealand. Chapters 3-7 deal with each of these in turn. 3 ELECTIVE / VOLUNTARY ECT - REQUIREMENTS OF A LEGALLY VALID CONSENT Consent may validate either the provision of ECT to a patient who receives ECT electively as with any health procedure, or who consents voluntarily under the Mental Health (Compulsory Assessment and Treatment) Act 1992. A consent must be voluntary, and if gained by unfair or undue pressure, or on the basis that committal procedures will be instigated if consent is not forthcoming, the validity of the consent may be undermined. An essential requirement of consent is capacity, which is not a concrete concept but varies according to the gravity of the decision involved. Decisions involving greater potential risk demand greater levels of capacity than decisions of minor potential risk. This raises the question of what degree of capacity is required to consent to ECT, and whether it should be the same for refusal. The answer to this question will be influenced by the evidence and conclusions reached by the research team investigating the safety and efficacy of ECT. Relevant considerations regarding obtaining consent to ECT include the fact that depressive illness can impair memory, as can some antidepressants and ECT. ECT involves a series of treatments during which the cost benefit ratio may change, the patient’s ability to participate in informed decision-making may improve, while at the same time, memory of the original consent may 3 become impaired. The minimum standard for informed consent in relation to ECT is adequate information in writing for patients and families as well as verbal consent in accordance with the Code of Consumers’ Rights. The audit commissioned by the New Zealand Ministry of Health reported that hospitals surveyed did not universally include these requirements within their clinical governance. There is a degree of variation in the information regarding ECT and associated risks and side effects provided to patients amongst the jurisdictions surveyed. The RANZCP Clinical Memorandum #12 provides guidance for psychiatrists practicing throughout the Australian States, Territories and New Zealand and deals with the issue of consent to ECT in very broad terms. It does not go into medico-legal issues that may arise in clinical practice in any depth, nor is it specific to the New Zealand medico-legal environment. 4 ECT WITHOUT CONSENT – DOCTRINE OF NECESSITY It has been stated in the House of Lords that treating a compliant incapacitated person in need of psychiatric care on the basis of necessity under the common law may result in “effective and unqualified control in the hands of health care professionals”. However some protections exist in New Zealand in regard to the provision of treatment on the basis of necessity to an incapacitated patient by virtue of the Code of Consumers’ Rights. These must be compared with the procedural protections provided under the MH(CAT) Act in relation to ECT. Of these, the requirement for a second opinion and regular formal clinical review have no counterpart in the Code. 5 TREATMENT WITHOUT CONSENT: PARENS PATRIAE POWER The Parens patriae jusrisdiction is not suitable for authorising on-going treatment, but is invoked for one-off interventions. 6 TREATMENT WITHOUT CONSENT- PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988 The PPPR Act provides some protection for the vulnerable mentally ill person. To establish jurisdiction under the Act incompetence must be established, and the proposed intervention must be the least restrictive intervention possible in the life of the person subject to the application having regard to the degree of that person’s incapacity. There is no similar express requirement in the MH(CAT)Act. Only the least restrictive intervention will be permitted under the Act, which 4 will sometimes prevent an order under the Act when alternatives to the treatment proposed exist. The PPPR Act may be limited when a patient objects to the intervention. Whilst orders may be subject to judicial scrutiny there is no statutory requirement for regular review as exists with the MH(CAT) Act. Nor is there a requirement for a second opinion, although the judge essentially provides a second opinion, albeit a non-medical one. A positive aspect of the PPPR Act is that counsel is appointed to assist the person subject to the application. There is no equivalent requirement under the MH(CAT) Act, although patients do have a statutory right to legal advice. The PPPR Act may be used concurrently with the MH(CAT) Act, and has been invoked when death may occur as a consequence of ECT in emergency circumstances or when other restrictions which arise under the MH(CAT) Act are not warranted in the circumstances. In Scotland, the Adults with Incapacity (Scotland) Act 2000 does not permit the giving of consent or an intervention order in relation to ECT. 7 TREATMENT WITH OR WITHOUT CONSENT, THE MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992 Whilst mechanisms exist under the Act to protect patient’s rights when subject to compulsory treatment, such as the requirement of a second opinion in the case of non-consensual ECT, they
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