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The Australian newspaper “The Sydney Morning Herald” investigated the doubling of forced electroshock cases in New South Wales (NSW), Australia in the past decade, and found there was a troubling lack of adequate legal representation and due process.

Shock therapy forced on patients

Date Published:

Jun 05, 2009 08:00 PM

Author: Conrad Walters

Source: The Sydney Morning Herald, Australia

For original article in The Sydney Morning Herald click here:

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THE number of mental health patients forced to undergo electroconvulsive therapy in NSW has doubled in the past decade, and a lack of legal representation is leaving some of the state’s most vulnerable patients without a say over their own treatment.

The case of one 84-year-old pensioner who did summon legal help to avoid ECT has highlighted a situation that leaves involuntary patients – and their families – powerless to challenge psychiatrists.

In NSW, involuntary ECT requires the approval of the Mental Health Review Tribunal. All mental health patients are entitled to a lawyer, but only one in 10 patients is represented in the tribunal’s hearings.

The tribunal held 315 hearings for involuntary ECT in 1998. In 2007 there were 626 hearings. In that period legal representation in ECT hearings wavered between 4.9 and 8.9 per cent. Ninety-eight per cent of applications for involuntary ECT were approved.

The chief executive of the Public Interest Advocacy Centre, Robin Banks, said the wishes of involuntary patients were given little consideration. She believed the absence of lawyers was “a serious loss of freedom” and a situation that undermined Australia’s commitment to human rights.

“A minimum protection within any decision-making process like this … should be that the person can have access to legal representation,” she said. “It’s a pretty basic right we’re talking about: the right to control your own body and what treatment you receive.”

The tribunal, too, would welcome more input.

“We can’t force Legal Aid to give legal aid to everybody,” said the tribunal’s president, Greg James, QC. “[But] patients, the public and the tribunal would be much better off if legal aid were available. The whole reason we do this monitoring of ECT is to make sure the public can feel protected. There is a distrust in the community of such psychiatric treatments.”

Mr James said lawyers supplied independent input to ensure the tribunal approved the least restrictive, safest and most effective treatment.

His predecessor, Duncan Chappell, called the low level of legal representation “unfortunate”. When the Mental Health Act was reviewed in 2006 he pushed to have legal help made mandatory but was unsuccessful.

The case that has highlighted the issue concerns an age pensioner who was diagnosed in late April as clinically depressed and urgently needing ECT but who was discharged after her hospital learned its proposed treatment was to be challenged in the Supreme Court. Mr James said such cases were “very, very rare”.

But Robert Wheeler, who specialises in mental health law for Legal Aid NSW, said even when lawyers appeared at ECT hearings their contributions were limited. Lawyers could not counter medical testimony; and, while they could seek a second opinion, it was costly.

“Unless we’ve got the money to arrange a second opinion for every one of these applications, then really there’s not much we can do,” he said. Given Legal Aid’s budget, he said: “I don’t think it’s worth it.”

Bill Lyndon, a clinician of more than 20 years who uses ECT for voluntary patients, attributed the therapy’s increase in the public system to a greater awareness among psychiatrists of how to use it and greater recognition of its effectiveness. Dr Lyndon described ECT as “the most powerful anti-depressant we have”.

Nationally, ECT was used 20,121 times on an unknown number of patients last year, Medicare says. Of those, 5174 were in NSW. Ten years ago the state figure was half that.

Research by Terry Carney, a Sydney University law professor who specialises in mental health law, found that in NSW and Victoria the time spent for all types of mental health reviews averaged 15 minutes. In Britain the average hearing lasts 2½ hours.

“By comparison with other parts of the world, we’re providing considerably less resources, and the quality of some decision-making somewhere must suffer,” Professor Carney said.