KLH v Northern NSW Local Health District [2026] NSWCA 136 (Link to Caselaw).
Leave was granted by the appeal dismissed in this matter, where the appellant was self represented. Reproduced below is the court headnote.
HEADNOTE
JTR is an involuntary patient at the Lismore Base Hospital diagnosed with treatment resistant schizophrenia. His treating medical team applied to the Mental Health Review Tribunal to authorise the treatment of JTR with electro-convulsive therapy (ECT) without his consent. Under s 96(3)(b)(ii) of the Mental Health Act 2007 (NSW) (the Act), the Tribunal was required to be satisfied that administering ECT was “a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the patient”. The Tribunal was so satisfied, and made a determination authorising the treatment.
JTR’s mother, KLH, appealed from the Tribunal’s determination to the Supreme Court. The appeal is determined de novo. The first respondent (encompassing the Hospital) adduced evidence from JTR’s treating psychiatrist and an independent psychiatrist. Both doctors were of the view that ECT was a necessary and desirable treatment for JTR in the circumstances. No expert evidence was adduced by KLH. The primary judge, Lindsay J, dismissed the appeal.
KLH sought leave to appeal from that decision, raising seven grounds of appeal. Those grounds were drafted on the assumption that KLH needed to establish House v The King error, but the parties subsequently agreed that the correctness standard applied to this Court’s consideration of whether the s 96(3)(b)(ii) criteria were met. The grounds raised certain issues of statutory construction. One ground complained of a breach of procedural fairness on the basis that the primary judge had refused the applicant leave to issue subpoenas to obtain further evidence. Otherwise, the grounds – once understood as not limited to House v The King error – in substance concerned the correctness of the primary judge’s conclusion with respect to whether the s 96(3)(b)(ii) criteria were met.
In the course of the hearing of the appeal KLH indicated that she had received further documents from the respondent since the hearing before the primary judge, and that she wished to rely upon some of that material. Separately, the Court permitted the parties to provide an update as to JTR’s condition.
The Court held (Kirk JA, Mitchelmore JA and Price AJA agreeing), granting leave to appeal and dismissing the appeal:
Procedural fairness
1. Where, as in this case, a decision about not allowing subpoenas or an adjournment or such like is challenged as denying a litigant the reasonable opportunity to present their case and to test their opponent’s case, the particular decision cannot be assessed in isolation. The focus is not just on the impugned decision to deny the subpoena (or such like) but on the broader question of whether in all the circumstances the litigant was denied a reasonable opportunity to present their case and to test their opponent’s case such as to have been denied procedural fairness. The relevant circumstances may include: the statutory context, both as to procedure and any relevant issues of substance; the nature of the matter, including what is at stake; the urgency of the matter; the characteristics of the parties involved; the significance of what was sought in the context of the matter; and the stage of proceedings at which the impugned decision is made. These issues go to whether there has been any breach of procedural fairness, prior to assessing materiality: [100]-[101].
2. Here, there was urgency in moving to resolve the application in the Court below. Section 95 of the Act requires that the Tribunal must hold an ECT inquiry as soon as practicable after an application is made to it. The Court should seek to give effect to the imperative of urgency manifest in the provision: [107]-[108]. There was also specific cause for concern about JTR’s condition. At least according to the treating doctors he was in significant distress and at risk of possible long term harm: [109].
3. Another part of the statutory context was ss 56-58 of the Civil Procedure Act 2005 (NSW), setting out considerations relevant to procedural issues. Notably, those considerations include the degree of expedition with which the respective parties have approached the proceedings, the use made of any opportunity that has been available to the party in the course of the proceedings, and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. In the circumstances, KLH did not make use of the opportunities available to her, did not act expeditiously and the degree of injustice she would suffer was likely to be limited. Taking account of all of the circumstances, the claimed breach of procedural fairness was not made out: [111]-[116].
Application of s 96(3)(b)(ii) test
4. The notion of “necessary or desirable” should be read together as meant to capture parts of a spectrum. Reading them together suggests that a conclusion that ECT is “necessary or desirable” does not necessarily involve a high threshold of benefit in advancing the person’s safety or welfare, but nevertheless is not a conclusion lightly to be reached, especially in circumstances where a person found to have capacity has refused the treatment. That the requirement is not limited to necessity indicates that it is not required that the ECT be essential in the sense that there are no other treatment options available to address the person’s relevant mental condition: [46].
5. Considering whether the s 96(3)(b)(ii) criteria are met, in the context of the statutory scheme, commonly will involve considering the following overlapping matters (where this list is not suggested to be exhaustive) ([47]-[61]):
(1) the benefits of the proposed ECT treatment in addressing some medical condition of the patient, including the significance of the potential benefits and the likelihood of such benefits occurring;
(2) the possible side-effects and risks of the proposed ECT treatment, including the significance of those and their likelihood;
(3) the availability of alternative treatments (including not undertaking any other treatment), and the potential risks and benefits of those;
(4) the principles for care and treatment identified in s 68 of the Act, including in particular those in pars (b), (d), (e), (f), (h), (h1) and (j);
(5) the clinical condition and history of treatment of the patient, and all the circumstances of the case;
(6) the views of the patient, where those views will have particular weight for patients with capacity to give or refuse informed consent;
(7) the views of relevant carers.
6. The correctness standard applies in this Court with respect to considering whether the s 96(3)(b)(ii) criteria are met: [16].
7. Taking the relevant factors and the evidence into account, administering ECT to JTR was shown to be a reasonable and proper treatment which is at least desirable for his safety or welfare. Even allowing for the real significance of the factors against that view, the evidence of the terrible distress caused to JTR by his ongoing psychosis speaks loudly. The evidence indicates that there is at the least a significant chance that ECT may alleviate that distress, where other treatments have failed, and where the risks of the treatment are limited: [164]-[192].
Applications to adduce additional evidence
8. Only certain paragraphs of the further affidavit of the treating psychiatrist should be received, as much of it went beyond what was permitted to be provided, namely an update as to the JTR’s condition: [198]-[204]. The material KLH provided in response also exceeded the bounds of providing an update as to JTR’s condition and should be rejected: [205]-[206]. KLH also sought to rely on 12 documents constituting further evidence. Special grounds were not made out such as to justify receipt of that material: [196]-[197]; [207]-[243].
Akins v National Australia Bank (1994) 34 NSWLR 155; Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127; Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 72, referred to.
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