INTRODUCTION
6.1 The incidence of mental illness and intellectual disability among young people is quite significant. In a 2001 study by NSW Health, more than 20% of 12-17 year olds in New South Wales were found to have a level of symptoms and disruption of functioning that warranted a formal diagnosis of mental disorder.1 This finding reflected those of an Australia-wide study published in 2000, which found that 19% of adolescents reported having mental health problems and 15% had symptoms of one of the three most common mental disorders namely, attention-deficit/hyperactivity disorder, depressive disorder and conduct disorder.2 On the other hand, almost 1% of the population of New South Wales has been estimated to have profound or severe intellectual disability and about half of this group is below the age of 18 years.3
6.2 This chapter examines the legal framework of consent to, and refusal of, medical treatment by young people with mental illness or intellectual disability. The next chapter discusses other groups of young people with special needs.
DEFINITIONS
Mental illness
6.3 The distinguishing feature of mental illness is the presence of symptoms indicating disturbance in mental functioning such as thought, perception, memory and judgment. Medical diagnosis involves identifying clusters of symptoms according to one or another of the standard psychiatric protocols. A widely accepted psychiatric classification system is the Diagnostic and Statistical Manual of Mental Disorders, which arranges over 300 mental disorders in diagnostic hierarchies with descriptions of the essential and the associated features of each one.4 The manual defines mental disorder as
a clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (eg, a painful symptom) or disability (ie, impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expected and culturally sanctioned response to a particular event, for example, the death of a loved one.5
6.4 In New South Wales, mental illness is defined more narrowly in the Mental Health Act 1990 (NSW) as a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(a) delusions;
(b) hallucinations;
(c) serious disorder of thought form;
(d) a severe disturbance of mood; or
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) - (d).6
6.5 This definition is mainly relevant in the context of the involuntary admission to hospitals of those who have a mental illness and are at risk of causing harm to themselves or others.7
Intellectual disability
6.6 People with an intellectual disability have significantly lower than average intellectual ability and deficits in social and adaptive functioning. Their capacity to learn and communicate may be impaired. They may have difficulty in grasping abstract concepts, handling complex tasks, and absorbing and assessing information at a “normal” rate.8
6.7 The cause of a person’s intellectual disability is often unknown. Some known causes include: genetic defects, such as Down’s Syndrome; trauma, infection or exposure to harmful drugs before or at birth; or an “acquired” disability due to brain damage, malnutrition or deprivation in early childhood.9
6.8 A person’s intellectual disability is usually classified as mild, moderate, severe or profound, based upon certain IQ (intelligence quotient) ranges. A person with a severe or profound disability may be unable to learn basic social skills or have a capacity for speech or personal care. The majority of people with an intellectual disability, however, have a mild level of intellectual disability and can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.10
6.9 There is no general statutory definition of intellectual disability in New South Wales.11 An illustrative definition is found in Victoria’s Intellectually Disabled Persons’ Services Act 1986 (Vic), which defines intellectual disability, in relation to a person over the age of 5 years, as the concurrent existence of:
The permanence/transience of a condition and capacity to consent
6.10 In the majority of cases, the intellectual disability of a person is not capable of being overcome by any medical, psychological or psychiatric treatment. It is usually a permanent condition. This is in contrast to some forms of mental illness. Many people with mental illnesses recover fully. Some may only have one episode of mental illness and then recover. In other cases, mental illness can come and go in people’s lives. A person with a mental illness may therefore, at some stages of his or her life, pass the test of capacity to give consent to a medical treatment, but at other points, fail it. On the other hand, a person with a severe intellectual disability who, as a result of such disability, is incapable of understanding and weighing information about medical treatments may never attain capacity to give consent to any medical treatment.
| Case study
R, a 15 year old girl, suffered increasing episodes of mental illness. Following one such episode, she was admitted to the adolescent psychiatric unit of a hospital where the proposed program of treatment included the administration of antipsychotic drugs. In a lucid interval, she indicated her refusal to such treatment. Wardship proceedings were commenced and the permission of the court was sought to allow the hospital to administer the drugs without R’s consent. The consultant child psychiatrist was of the opinion that between episodes of psychosis, R sufficiently understood the nature of her illness and the proposed treatment, and was therefore competent to withhold her consent. The court was of the view that it had the authority to override the young person’s refusal to the treatment, whether or not she was Gillick-competent.13 |
APPLICATION OF THE GENERAL RULES
Consent
6.11 The competence of young people to consent to medical treatment may be affected not only by their immaturity, but also by mental illness or intellectual disability. However, the courts do not presume that young people with such conditions are incompetent to make their own medical decisions.14 As with all young people, their competence is assessed according to each individual’s capacity to understand a proposed treatment. For instance, a person with schizophrenia may still be capable of understanding, weighing and retaining information about a medical procedure to come to a conclusion about whether or not to undergo treatment.15
6.12 The same criteria therefore apply to assess the competence of a young person with mental illness or intellectual disability as apply to the general population of young people. As discussed in Chapter 2, these criteria are derived mainly from the common law, the “Gillick-competent” test in particular, as modified by s 49 of the Minors (Property and Contracts) Act 1970 (NSW).
6.13 For 16 and 17 year olds who have a mental illness or an intellectual disability, Part 5 of the Guardianship Act 1987 (NSW) sets out rules for consenting to medical treatment.16 These are discussed in detail in Chapter 2.17
Refusal
6.14 Young people do not have an absolute right to refuse medical treatments. A court may override a child’s wish not to undergo medical treatment if: (1) he or she lacks sufficient understanding, intelligence and maturity to appreciate the consequences of the refusal; or (2) the refusal is not in the young person’s best interests.18
6.15 Mental illness or intellectual disability may affect a young person’s capacity to refuse medical treatment. Hence, in a case involving two 15 year old girls, one with unsocialised adolescent conduct disorder and another with bipolar affective disorder, the court found neither of them to be Gillick-competent.19 In a case involving a 16 year old girl with anorexia nervosa, Lord Donaldson made the following observations:
it is a feature of anorexia nervosa that it is capable of destroying the ability to make an informed choice. It creates a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. This attitude is part and parcel of the disease and the more advanced the illness, the more compelling it may become.20
6.16 Regardless of a young person’s competence, a court exercising its inherent powers can override his or her refusal of medical treatment, if the refusal is against the young person’s welfare. The point at which a court can veto a child’s wishes “will have come if the child is seeking to refuse treatment in circumstances which will probably lead to the death of the child or to severe permanent injury.”21
| Case study
X, a 16 year old girl, was admitted for hospital treatment of her anorexia nervosa. Her weight varied from 35-38 kg (well within the wasting range) and at some point dropped to 23 kg. She was put on naso-gastric re-feeding to enable her to gain weight. However, she sabotaged her program of re-feeding by siphoning food out of her stomach. One night, she surreptitiously left the hospital. The Department of Community Services (DoCS) sought to return her to the hospital but she refused. Her parents supported her refusal of hospital treatment but proposed alternative treatments. On application by DoCS, the Supreme Court ordered X to return to the hospital to resume a strict treatment program involving re-feeding, psychotherapy, physiotherapy and ongoing monitoring. In overriding X’s refusal of hospital-based treatment, the Court underscored the fact that her health and survival were at serious risk without the treatment.22 |
SPECIAL RULES
6.17 There are two groups of young people with mental illness or intellectual disability whose consent to and refusal of medical treatment is governed by different rules:
- those admitted to public hospitals or are otherwise getting treatment pursuant to the Mental Health Act 1990 (NSW); and
- those who are in out-of-home care.
THE MENTAL HEALTH ACT 1990 (NSW)
6.18 The main law in New South Wales that provides for the treatment of people with mental illnesses in hospitals and in the community is the Mental Health Act 1990 (NSW). It aims to protect the rights of people with mental illness while ensuring that they have access to appropriate care. It contains rules on consent to medical treatments, which operate once a person with a mental illness is admitted in a public hospital or is otherwise covered by the provisions of that Act.23 The rules vary according to whether the patient was voluntarily or involuntarily admitted.
Voluntary admission to hospitals
6.19 The Mental Health Act 1990 (NSW) provides for admission to a hospital as a voluntary patient on application by the person concerned, or in the case of a person under guardianship, by the person’s guardian with the approval of the Guardianship Board.24 Like adults, young people with mental illness may voluntarily seek psychiatric treatment and may be admitted to a hospital,25 if they are likely to benefit from inpatient care and treatment.26 However, there are special rules for young people:
- If a person below the age of 16 is admitted to hospital as a voluntary patient, the hospital must do everything reasonably practicable to notify the person’s parents or guardians of the admission.27
- If a parent of a 14 or 15 year old person objects to the person’s admission as a voluntary patient, the young person must be discharged from hospital, unless he or she elects to remain as a voluntary patient.28
- A person under 14 cannot be admitted or remain in hospital as a voluntary patient if the person’s parent objects to his or her admission.29
Issue 6.1
For young people below 14 years old who have mental illnesses, should the objection of one parent be sufficient to bar their voluntary admission in a psychiatric hospital? Alternatively, should there be other factors to consider: for example, the child’s level of understanding concerning his or her proposed hospitalisation, the opinion of medical practitioner(s) who have been treating the young person, the wishes of the other parent and the child’s best interests?
6.20 The provisions on voluntary admission are different from the general rules regarding consent by young people to medical treatment, as set out in Chapter 2. They give young people aged 14 and 15 a right to override the wishes of their parents with respect to their right to receive voluntary psychiatric inpatient care. They also give parents an explicit right to override the wishes of young people below the age of 14 – something that the general law does not do.
Involuntary admission to hospitals
6.21 A person, including one who is below the age of 18, can be involuntarily detained in a hospital if he or she is considered to be either:30
- a “mentally ill person”, defined as a person who is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection or the protection of others from serious harm;31 or
- a “mentally disordered person”, who is someone whose behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary for the person’s own protection or the protection of others from serious physical harm.32 A mentally disordered person need not have a mental illness.
6.22 One means of involuntary admission is through certification by a medical practitioner that the person is a mentally ill person or a mentally disordered person. The certifying medical practitioner must have personally examined the person immediately before completing the certificate. Moreover, the medical practitioner must be of the opinion that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary.33 Involuntary detention may also be initiated by the police, a welfare officer, a magistrate or, in special circumstances, on the request of a relative or friend.34
Consent and refusal to treatments for those admitted to hospitals
General rule
6.23 The Mental Health Act 1990 (NSW) abrogates the common law right of a person to refuse to consent to general psychiatric treatment so far as persons involuntarily detained in mental health facilities are concerned.35 There is a broad discretion conferred on the medical superintendent of a hospital to give or authorise a treatment on a person involuntarily detained.36 In other words, a treatment may be performed on an involuntary patient without his or her consent, and indeed over his or her refusal to the treatment. The authority of the medical superintendent to give or authorise treatment to involuntary patients does not extend to surgical operations, electroconvulsive therapy, psychosurgery and special medical treatments. The consent rules for these particular treatments are discussed below.
6.24 The Mental Health Act 1990 does not give the same powers to the medical superintendent in respect to voluntary hospital patients. Hence, medical practitioners must seek the consent of voluntary hospital patients before administering psychiatric treatment, relying on the general tests of consent and refusal that apply to the treatment of young people, as discussed in Chapter 2.
Surgical operations
6.25 If a person is involuntarily detained in a psychiatric hospital and needs a surgical operation (other than psychosurgery, electroconvulsive therapy or special medical treatments) certain medical officers37 may consent to the surgical operation:
- if the patient is incapable of giving consent to the performance of the operation or is capable of giving that consent but refuses to give that consent or neither gives nor refuses to give that consent, and
- if the medical officer concerned is of the opinion that it is necessary, as a matter of urgency, to perform a surgical operation to save the life of the patient or to prevent serious damage to the health of the patient.38
6.26 If a surgical operation is not an emergency, but a medical superintendent is of the opinion that it is desirable, having regard to the interests of the patient, the medical superintendent may apply to the Mental Health Review Tribunal or an authorised officer39 for consent to the performance of the surgical operation.40
6.27 These rules do not apply to voluntary psychiatric patients. Hence, doctors cannot perform surgical operations on them without their consent.
Psychosurgery
6.28 In broad terms, psychosurgery is the creation of lesions in the brain by any surgical procedure for the purpose of altering the thoughts, emotions or behaviour of the person.41 This treatment is sometimes offered to patients who have a severe, distressing and debilitating mental illness that has not responded to other treatments.
6.29 The law prohibits the performance of psychosurgery without the patient’s informed consent.42 The requirements of the Mental Health Act 1990 (NSW) on informed consent are more comprehensive than those found at common law.43 The Act provides that before the consent of a patient is obtained to the performance of psychosurgery:
(a) a fair explanation must be made to the patient of the techniques or procedures to be followed;
(b) a full description must be given to the patient of the possible discomforts and risks;
(c) a full description must be given to the patient of the benefits to be expected;
(d) a full disclosure must be made to the patient of appropriate alternative treatments;
(e) an offer must be made to the patient to answer any inquiries;
(f) notice must be given that the patient is free to refuse or to withdraw his or her consent and to discontinue the procedures or any of them at any time;
(g) a full disclosure must be made of any financial relationship between the person by whom consent for psychosurgery is sought or the medical practitioner who proposes to perform the psychosurgery, or both, and the hospital or institution in which it is proposed to perform the psychosurgery;
(h) notice must be given to the patient that the patient has the right to legal advice and representation; and
(i) any question relating to the procedures asked by the patient must have been answered and the answers must appear to have been understood by the patient.44
6.30 In addition to obtaining the patient’s informed consent, the law requires the consent of the Psychosurgery Review Board,45 which may only consent if satisfied that the patient is capable of giving consent; the psychosurgery has clinical merit; the doctors are qualified and the hospital is a proper place to perform psychosurgery; all other reasonable treatments for the patient have been adequately administered without sufficient resulting benefits.46
6.31 Pursuant to s 156 of the Mental Health Act 1990, a person below the age of 18 is conclusively presumed incapable of giving informed consent to psychosurgery.
6.32 However, the Psychosurgery Review Board may, if it is not satisfied that the patient is capable of giving informed consent, apply to the Supreme Court for a determination.47 The Supreme Court is empowered to determine: (a) whether the patient is capable of giving informed consent to the psychosurgery, and (b) whether the patient has given that consent, and (c) if the Court determines that the patient is not capable of giving that consent, whether the Court should give that consent on behalf of the patient.48 In making its decision on the matter, the Court is not bound by the conclusive presumption that persons below the age of 18 are incapable of consenting to psychosurgery.49
Electroconvulsive therapy
6.33 ECT is a treatment that involves passing a small electric current through the brain.50 It induces a convulsion in the patient. It is thought that the brain’s response to the convulsion may be what makes the treatment effective.51 While it is used in a range of psychiatric disorders, it is most commonly used in the treatment of severe depression where suicide is a risk.52
6.34 ECT has been a controversial treatment, mainly because of past misuse and its possible side effects. In the United States, the National Institutes of Health and the National Institute of Mental Health have issued a statement that ECT produces deficits in memory function, which persist after termination of a normal course of ECT.53 In addition to memory loss, brain damage is another possible side effect of ECT.54 There are, however, a number of studies that show that ECT does not produce brain damage or long-term memory loss.55 The Royal Australian and New Zealand College of Psychiatrists has issued a memorandum stating that ECT is an important and effective treatment for a variety of psychiatric conditions.56
6.35 ECT is used less commonly in young people.57 There is a view that the administration of ECT on children who have not yet reached puberty has no established usefulness.58 It may be a useful treatment for older adolescents suffering from severe psychosis and some types of bipolar disorder.59 The Royal Australian and New Zealand College of Psychiatry has said that no recommendations can be made on the use of ECT on children prior to puberty. However, it sanctions its use on adolescents, pointing to research suggesting that the indications, effectiveness and side effects of ECT in adolescents are similar to those in adults.60
6.36 The Mental Health Act 1990 (NSW) contains stringent requirements on the use of ECT. It may be used only in certain gazetted psychiatric hospitals, authorised private hospitals or other places authorised by the Director General of Health. It may be administered only in the presence of two doctors.
6.37 Voluntary patients. ECT may be performed on a voluntary patient only if he or she has given his or her written consent. In addition, two medical practitioners (at least one of whom is a psychiatrist) must certify that, after considering the person’s clinical condition, history of treatment and any appropriate alternative treatments, they are of the opinion that the treatment is a reasonable and proper treatment to be administered to the person and is necessary or desirable for the safety or welfare of the person.61
6.38 The requirements for informed consent to the administration of ECT62 are similar to that of psychosurgery.63 A person is presumed to be incapable of giving informed consent to ECT if before or at the time at which the consent is sought, the person has received medication that impairs the person’s ability to consent.64 A medical superintendent who is unsure whether a person is capable of giving informed consent may apply to the Mental Health Review Tribunal to determine whether the person is capable of giving informed consent and has given that consent.65 Unlike the provisions for psychosurgery, those for ECT do not contain a presumption that young people are incapable of giving consent to this treatment.
6.39 Involuntary patients. ECT may be administered on an involuntary patient who is incapable of giving informed consent, or who is capable of giving informed consent but has refused, or has neither consented to nor refused the treatment. This may only be done with the approval of the Mental Health Review Tribunal.66
Issue 6.3
(a) Should young people be considered potentially competent to consent to Electroconvulsive Therapy (ECT)?
(b) Should the provisions of the Mental Health Act 1990 (NSW) concerning young people’s competence to consent to ECT, and treatment in the absence of such consent, be the same as those for psychosurgery?
Special Medical Treatment
6.40 Section 204(1) of the Mental Health Act 1990 (NSW) prohibits and criminalises the carrying out of a special medical treatment on an involuntary patient. The Act defines special medical treatment as “a treatment, procedure, operation or examination that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out”.67
6.41 The Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Guardianship Act 1987 (NSW) also have provisions relating to special medical treatment.68 The definitions of special medical treatment in these two other statutes are broader than that found in s 204(1) of the Mental Health Act 1990. The treatments that are covered in those statutes include:69
- long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation;
- medical treatment in the nature of a vasectomy or tubal occlusion;
- medical treatment involving the administration of an addictive drug;
- certain medical treatment involving an experimental procedure;
- in the case of a child in residential care, the administration of a psychotropic drug used to control the child’s behaviour;
- any new treatment that has not yet gained the support of a substantial number of medical practitioners specialising in the area of practice concerned;
- termination of pregnancy;
- aversion therapy.
6.42 A medical practitioner may carry out special medical treatment without incurring liability for the offence created in s 204(1) of the Mental Health Act 1990 (NSW):70
- if the medical practitioner carries out the special medical treatment on a patient based on his or her opinion that it is necessary, as a matter of urgency, to carry out the treatment on the patient in order to save the patient’s life or to prevent serious damage to the patient’s health, or
- if the Mental Health Review Tribunal consents to the carrying out of the special medical treatment.
6.43 The Mental Health Review Tribunal must not consent to the carrying out of special medical treatment on a patient unless the treatment is necessary to save the patient’s life or to prevent serious damage to the patient’s health.71 Moreover, consent to the carrying out of special medical treatment on a patient must not be granted if the patient is under the age of 16 years.72 Hence, the Mental Health Act 1990 does not authorise the performance of a special medical treatment on patients below 16 unless there is an emergency. However, there is no general policy against the performance of special medical treatments on those who are under the age of 16. Pursuant to s 175 of the Children and Young Persons (Care and Protection) Act 1998, the Guardianship Tribunal may give consent to the performance of a special medical treatment on a child under 16.
Prohibited Treatments
6.44 The Mental Health Act 1990 (NSW) prohibits the performance of deep sleep therapy and insulin coma therapy on any person.73 Moreover, doctors are prohibited from administering drugs or a dosage of drugs, which, having regard to proper professional standards are excessive or inappropriate.74
OUT-OF-HOME CARE
6.45 In the past, many children with disabilities were placed in large institutions. The current policy is to have such children live with a family, preferably their birth family. However, the presence of a child with an intellectual disability, especially if severe, invariably leads to great personal and financial stress in the home. Financial and other support for the family, while helpful, is not always a complete solution.75 A 1996 survey conducted in New South Wales of families with children under seven years with disabilities and high support needs found that 25% had either sought alternative residential care for their child or considered it might become necessary, particularly if the mother was unable to continue as carer, or the child became larger and harder to manage.76
6.46 The New South Wales government, principally through the Department of Community Services, provides and regulates out-of-home care for children, including those with intellectual disabilities. Out-of-home care may take the form of foster care, kinship care and small residential services in the community.77 Services are provided for crisis, short, medium or extended periods, and sometimes permanently.
6.47 The Children and Young Persons (Care and Protection) Act 1998 (NSW) provides a framework for out-of-home care. It defines out-of-home care as residential care and control (whether paid or not) at a place other than the child’s usual home by a person, other than a parent or relative, for a period of more than 28 days (consecutive or aggregate in a 12 month period), or for a period of more than 14 days (if the child or young person is in the person’s care and control because of an order from the Children’s Court).78
6.48 The Act contains provisions on consent to medical treatment of young people who are in out-of-home care. These are discussed in detail in Chapter 7. In a nutshell, they give those authorised to provide out-of-home care the power to consent to certain medical and dental treatments of those under their care. The treatments they are allowed to consent to are: (1) those that do not involve surgery, and (2) surgery certified as urgent by a medical practitioner or dentist.79 The Act also imposes special requirements for a valid consent to be given to a “special medical examination” (certain vaginal, anal or penile examinations) carried out on children and young people who are in out-of-home care in accordance with an order of the Children’s Court.80
6.49 The provisions in the Children and Young Persons (Care and Protection) Act 1998 on out-of-home care apply generally to children who cannot live in their own homes. They were not designed specifically for children with intellectual disabilities.
Issue 6.6
(a) Are there issues particular to young people with intellectual disabilities that should be taken into account as regards consent to, and refusal of, medical treatment while they are in out-of-home care?
(b) Are there types of medical treatment/therapy particularly relevant to this group of young people that require special rules on consent?
FOOTNOTES
1. NSW Health, Mental health clinical care and prevention model: a population mental health model (2001) at 14.
2. MG Sawyer, FM Arney, PA Baghurst, JJ Clark, BW Graetz, RJ Kosky, B Nurcombe, GC Patton, MR Prior, B Raphael, J Rey, LC Whaites and SR Zubrick, Mental health of young people in Australia (Commonwealth Department of Health and Aged Care, Canberra, 2000).
3. Information supplied by Mr David Kay, NSW Department of Aging, Disability and Home Care (12 December 2003). According to the NSW Council for Intellectual Disability, the total number of people with intellectual disabilities has been estimated at between 2.3% to 3% of the general population. This means that in New South Wales, with a population of around 6 million people, there are between 138,000 and 180,000 people with intellectual disabilities.
4. Another diagnostic protocol is the World Health Organisation’s International classification of disorders (ICD-10 Classification of mental and behavioural disorders: clinical descriptions and diagnostic guidelines).
5. Diagnostic and statistical manual of mental disorders: DSM-IV-TR (American Psychiatric Association, Washington DC, 2000) at xxxi.
6. Mental Health Act 1990 (NSW) Sch 1.
7. See para 6.21-6.22.
8. NSW Law Reform Commission, People with an intellectual disability and the criminal justice system: courts and sentencing issues (Discussion Paper 35, 1994) at para 2.6.
9. L Gething, T Poynter and F Reynolds, Disability awareness package - manual (Community Disability and Ageing Program, University of Sydney, 1991) at 48.
10. NSW Law Reform Commission, People with an intellectual disability and the criminal justice system: courts and sentencing issues (Discussion Paper 35, 1994) at para 2.4.
11. The Commission proposed a statutory definition of intellectual disability in People with an intellectual disability and the criminal justice system: courts and sentencing issues (Report 80, 1996) Recommendation 1.
12. Intellectually Disabled Persons’ Services Act 1986 (Vic) s 3.
13. In Re R (A Minor) (Wardship: Consent to Treatment) [1991] Fam11.
14. Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218 at 238 (Mason CJ, Dawson, Toohey, and Gaudron JJ).
15. See Re C (Adult: Refusal of Medical Treatment) 1994] 1 All ER 819.
16. In general, the Guardianship Act 1987 (NSW) is designed to uphold the welfare of people with disabilities who are not competent to make decisions about aspects of their lives: see s 4. For purposes of the Act, a person with a disability includes a person who has an intellectual disability, as well as one who is a mentally ill person under the Mental Health Act 1990 (NSW): s 3(2). However, Part 5 of the Guardianship Act 1987, dealing with consent to medical (and dental) treatment, is not restricted to people suffering from a disability. It applies to any person, 16 and over, who is incapable of understanding the general nature and effect of the proposed treatment, or is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out: s 33(2).
17. See para 2.35-2.46.
18. See para 2.47-2.53.
19. Re K, W and H (Minors) (Medical Treatment) [1993] 1 FLR 854.
20. In re W (A Minor) [1993] Fam 64 at 81 (Lord Donaldson MR).
21. In re W (A Minor) [1993] Fam 64 at 88 (Balcombe LJ). See also Re C (Detention: Medical Treatment) [1997] 2 FLR 180.
22. Department of Community Services v Y [1999] NSWSC 644.
23. The Act contains provisions that allow patients to receive treatment in the community: Mental Health Act 1990 (NSW) Chapter 6.
24. Section 12.
25. Section 12.
26. Section 17.
27. Section 13.
28. Section 14.
29. Section 15.
30. Section 8-11.
31. Section 9(1).
32. Section 10.
33. Section 21.
34. Section 22 - 27.
35. See Human Rights and Equal Opportunity Commission, Background paper for the national inquiry concerning the human rights of people with mental illness (AGPS, Canberra, 1992) at 35.
36. Mental Health Act 1990 (NSW) s 31.
37. This could be a medical superintendent, deputy medical superintendent, responsible medical officer or authorised officer: Mental Health Act 1990(NSW) s 201(4).
38. Mental Health Act 1990 (NSW) s 201.
39. The Director-General may, by instrument in writing, appoint as authorised officers employed within the Department of Health employees of a public health organisation within the meaning of the Health Services Act 1997: Mental Health Act 1990 (NSW) s 235.
40. Mental Health Act 1990 (NSW) s 205.
41. For a more detailed definition of psychosurgery, see Mental Health Act 1990 (NSW) Schedule 1.
42. Mental Health Act 1990 (NSW) s 154.
43. For a discussion of the common law on the obligation of doctors to disclose the material risks, more popularly known as the doctrine of informed consent, see para 8.9.
44. Mental Health Act 1990 (NSW) s 155.
45. Section 157.
46. Section 169.
47. Section 174.
48. Section 175.
49. Section 156(2).
50. The Mental Health Act 1990 (NSW) does not define this treatment.
51. I Freckleton and B Wilson, “Electroconvulsive therapy: law, history and practice” (2001) 8 Journal of Law and Medicine 389 at 391.
52. Freckleton and Wilson; see also Centre for Mental Health, Mental Health Act guide book (NSW Institute of Psychiatry, Parramatta, 2003) at 63.
53. National Institutes of Health and National Institute of Mental Health, Electroconvulsive therapy: consensus development conference and statement, no 11 (1985). For a more recent work detailing the side effects of ECT, see R Abrams, Electroconvulsive therapy (Oxford University Press, New York, 1997).
54. G Boyle, “Electroconvulsive shock treatment: does it induce brain damage and memory loss?” (1988) 23 Australian Psychologist 62.
55. These studies are surveyed in I Freckleton and B Wilson, “Electroconvulsive therapy: law, history and practice” (2001) 8 Journal of Law and Medicine 389 at 396.
56. Royal Australian and New Zealand College of Psychiatrists, Electroconvulsive therapy (Clinical Memorandum No. 12, 1999) at para 1.
57. There is no readily available data on the use of ECT on young people in Australia. However, a study in the United Kingdom found that ECT is rarely administered to young people in that country: R Duffett, P Hill and P Lelliott, “Use of electroconvulsive therapy in young people” (1999) 175 British Journal of Psychiatry 228.
58. F Frankel, “Electroconvulsive therapy in Massachusetts: a task force report” (1973) 3 Massachusetts Journal of Mental Health 3.
59. G Martin, “Depression in teenagers” (1996) 37 Current Therapeutics 57.
60. Royal Australian and New Zealand College of Psychiatrists, Electroconvulsive therapy (Clinical Memorandum No. 12, 1999) at para 11.
61. Mental Health Act 1990 (NSW) s 185.
62. Section 183.
63. See para 6.29.
64. Section 184.
65. Section 185(2).
66. Section 188-194.
67. Schedule 1.
68. See Chapter 4.
69. See Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175; Children and Young Persons (Care and Protection) Regulation 2000 (NSW) cl 15; Guardianship Act 1987 (NSW) s 33(1); Guardianship Regulation 2000 (NSW) cl 6.
70. Mental Health Act 1990 (NSW) s 204(2).
71. Section 204(2A).
72. Section 204(3).
73. Section 197.
74. Section 198.
75. See K Bain, “Children with severe disabilities: options for residential care” (1998) 169 Medical Journal of Australia 598.
76. G Llewellyn, P Dunn, M Fante, et al, Families with young children with disabilities and high support needs (University Of Sydney Family Support and Services Project, Sydney, 1996).
77. Of 5,007 children entering out-of-home care in 2000/2001, over 57% were placed in kinship/family care, while 32% were placed in foster care: NSW Department of Community Services, Out of home care: fact sheet (2002).
78. Section 135.
79. Section 157(1).
80. Section 176.
