MENTAL HEALTH LAW CENTRE (WA) Inc.

Transcription

1 1 MENTAL HEALTH LAW CENTRE (WA) Inc. ABN March 2012 Mental Health Commission contactus@mentalhealth.wa.gov.au GPO Box X2299, Perth Business Centre WA 6847 DRAFT MENTAL HEALTH BILL 16 DECEMBER 2011 Mental Health Law Centre (WA) Inc. SUBMISSION INVOLUNTARY PATIENT CRITERIA We take this opportunity to make a submission on the Draft Mental Health Bill released for public comment on 16 December General Position The Bill authorises a single authorised mental health practitioner (not necessarily a doctor and perhaps simply an enrolled mental health nurse with two days training in making referrals) to assess/ examine, refer, detain and transport a person against their will and without their consent, to a psychiatrist (sometimes thousands of kilometres away from the patient s home) for an examination to decide whether or not that person requires detention (involuntary admission to an authorised psychiatric hospital or hostel) and/or involuntary treatment; and authorises the examining psychiatrist (who may or may not have trained in Australia) to make an involuntary detention and/or treatment order sometimes on the basis of a hurried five minute examination.

2 2 Mistakes happen. We welcome the removal of some of the MH Act criteria for making someone an involuntary patient. However, the words welfare, unreasonably and physical illness have been inserted and should be removed because they broaden the scope of the criteria for involuntary detention way beyond the current Act. Mental Health legislation is about authorising the State to detain and treat people without their consent to protect them or others from the effects of their mental illness. Legislation that creates such powers must do everything it can to protect patients against error, malpractice, mismanagement and poor resources, however limited or rare such events might be. A criminal conviction requires the facts to be established beyond reasonable doubt to the satisfaction of a magistrate, judge or jury, all of whom are removed from the charging and fact finding process, before someone can be imprisoned. Nothing less should be available to someone with a mental illness who the WA government proposes to detain. Fundamental human rights and freedoms are removed from someone civilly detained under mental health legislation. Criteria for involuntary Treatment and/ or detention a) Criteria for involuntary detention and community treatment order under the current Act. The criteria for becoming an involuntary patient and being placed under a Community Treatment Order are contained under section 26 of the current Act. Section 26- Persons who should be involuntary patients (1) A person should be an involuntary patient only if (a) the person has a mental illness requiring treatment; and (b) the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order

3 3 (i) to protect the health or safety of that person or any other person; or (ii) to protect the person from self-inflicted harm of a kind described in subsection (2); or (iii) to prevent the person doing serious damage to any property; and (c) the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and (d) the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient. (2) The kinds of self-inflicted harm from which a person may be protected by making the person an involuntary patient are (a) serious financial harm; and (b) lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and (c) serious damage to the reputation of the person. b) Criteria for involuntary detention and community treatment order under The Bill. The Bill separates the criteria for involuntary detention order and CTOs. 1. Involuntary Detention Order The criteria for a person to be made subject to an involuntary detention order under the Bill are contained in clause 25(1) of the Bill. Clause 25 - Criteria for involuntary treatment order

4 4 (1) A person is in need of an in-patient treatment order only if all of these criteria are satisfied (a) the person has a mental illness for which the person is in need of treatment; (b) there is a significant risk to the health, safety or welfare of the person or to the safety of another person; (c) that (i) because of the nature of the mental illness, the person does not have the capacity required by section 12 to give informed consent to the provision of treatment; or (ii) the person has unreasonably refused treatment; (d) that, because of the person s mental or physical condition or another reason, treatment in the community cannot reasonably be provided to the person; (e) the person cannot be adequately provided with treatment in a way that would involve less restriction on the person s freedom of choice and movement than making an in-patient treatment order. 2. Community Treatment Order The criteria for a person to be made subject to a Community Treatment Order are contained in clause 25(2) of the Bill. (2) A person is in need of a community treatment order only if all of these criteria are satisfied (a) the person has a mental illness for which the person is in need of treatment; (b) there is (i) a significant risk to the health, safety or welfare of the person or to the safety of another person; or (ii) a significant risk of the person suffering serious physical or mental deterioration; (c) that

5 5 (i) because of the nature of the mental illness, the person does not have the capacity required by section 12 to give informed consent to the provision of treatment; or (ii) the person has unreasonably refused treatment; (d) that treatment in the community can reasonably be provided to the person; (e) the person cannot be adequately provided with treatment in a way that would involve less restriction on the person s freedom of choice and movement than making an in-patient treatment order. c) Submissions on clause 25 of the Bill Criteria for Involuntary Detention Order and Community Treatment Order- cll 25(1) and 25(2) Criterion 1- Mental illness and risk- ss 25(1)(a)-(b) and ss 25(2)(a)-(b) Welfare In their book titled Health Law in Australia (2012) the authors White, McDonald and Willmott comment on the s 26 criteria of the current Act stating that Western Australia has Australia s most paternalistic legislative provision in this regard. We share the view of the authors and submit section 26 in the current Act was disempowering. We welcome the removal of these criteria of the Bill. However, the Bill has included a broad ranging word in cll 25(1)(b)(i) and 25(2)(b)(i). A person can be made an involuntary patient or subject to a Community Treatment Order if there is a significant risk to the health, safety or welfare of the person or to the safety of another person (emphasis added). The inclusion of the word welfare is objectionable and inconsistent with the Objects of the Bill.. a) Welfare is defined as follows:

6 6 Butterworths Concise Australian Legal Dictionary defines welfare as follows: A state of wellbeing; having one s needs satisfied; happiness. The Macquarie Dictionary defines welfare as follows: The state of faring well; wellbeing: one s welfare; the physical or moral welfare of society. The New Oxford English Dictionary defines welfare as follows: The health, happiness and fortunes of a person. Furthermore, it is important for the legislature to keep in mind that individuals liberty and human rights are at issue under the Bill. If the word welfare remains in the Bill and becomes law, a psychiatrist will be authorised to interpret the term in a manner they choose. Pearce and Geddes in their expert legal text Statutory Interpretation in Australia (2010) find that, a drafter cannot assume that a reader will approach legislation sympathetically. In fact, the reader will often try to place a possible meaning on legislation that suits the reader regardless of what the drafter intended. The potential for abuse of individuals human rights under the Bill is exacerbated by the inclusion of welfare. To avoid such abuses of liberty and human rights, the legislature must clearly and precisely (not broadly

7 7 and vaguely) set out clearly and expressly the criteria. It is our submission that the term welfare must be removed from clause 25 of the Bill. The wording of other legislation around Australia and internationally give substance to viable alternatives, such as, a significant and imminent risk of serious deterioration in the person s mental health. We submit that the inclusion of welfare in the Bill makes the criteria for an involuntary detention order broader than the current (acknowledged as paternalistic and disempowering) s 26 criteria of the current Act, given that a person could be involuntarily detained if there is a significant risk to a their wellbeing, happiness, fortune or morals. Accordingly, the inclusion of welfare is at odds with the objects of the Objects of the Bill and should be removed. Criterion 2- Refusing Treatment- ss 25(1)(c) and ss 25(2)(c) Unreasonable Refusal The insertion of the unreasonably in cll 25(1)(c)(ii) and 25(2)(c)(ii) may have been intended to overcome the problem with s26 of the current Act, which provided that a person could be made subject to an involuntary patient or subject to a Community Treatment Order if they refused treatment, or were unable to consent, even if that treatment was wrongly or unjustifiably prescribed. The word unreasonably appears to be an attempt to overcome this flaw by attempting to only catch unreasonable refusals of treatment. While this is a step in the right direction, it is our submission that it does not go far enough in protecting the person. The psychiatrist who prescribes the treatment, which was refused is then the judge of whether or not this refusal is unreasonable in the context of treatment which he/she considers

8 8 reasonable. It is a test that the patient can only fail. In the event that a person refuses treatment recommended by a psychiatrist, the psychiatrist can simply deem that such a refusal was unreasonable. In fact this is highly likely given that the psychiatrist is the one who is recommending the treatment in the first place. It is our submission that the legislature must recognise that what is an unreasonably refusal of treatment by one psychiatrist may be viewed as perfectly reasonable/justified by another psychiatrist. Given the sometime subjective nature of psychiatric treatment decision making, the legislature must protect an individual s right to autonomy in refusing treatment if that person s refusal would also be supported by a responsible body of medical opinion. We submit the following be added to cll 25(1)(c) and 25(2)(c): (iii) A refusal of treatment is not unreasonable if it is supported by a responsible body of medical opinion and the Chief Psychiatrist. This would help to ensure that the psychiatrist considers whether or not other psychiatrists would view the patient s refusal as reasonable or unreasonable. Physical health references in cl 25 The references to physical health in cl 25 of the Bill must be removed. This is open to abuse and will lead to the detention in authorised hospitals for the treatment of physical illness. Given the data out lined in our submission on Physical Health of Involuntary patients, authorised hospitals are clearly not the place for treating physical illness. Furthermore, the Bill should not authorise involuntary status for the treatment of a physical illness.

9 9 We thank you for the opportunity to make this submission. Please do not hesitate to contact me to discuss the submission further. Yours faithfully Mental Health Law Centre (WA) Inc. SANDRA BOULTER Principal Solicitor General Manager