Plain English Guide to CRIMINAL LAW, MENTAL IMPAIRMENT

Plain English Guide to CRIMINAL LAW, Mental Illness and MENTAL IMPAIRMENT in WESTERN AUSTRALIA THE MENTAL HEALTH LAW CENTRE (WA) INC. JUSTICE, FAIRNESS, EQUITY FOR PEOPLE WITH A MENTAL ILLNESS JUNE 2012

Plain English Guide to CRIMINAL LAW and MENTAL IMPAIRMENT in WESTERN AUSTRALIA THE MENTAL HEALTH LAW CENTRE (WA) INC. JUSTICE, FAIRNESS, EQUITY FOR PEOPLE WITH A MENTAL ILLNESS JUNE 2012

Acknowledgments Research and commentary was provided by solicitors Sandra Boulter, Tracy Pearce, Amy Pepper, Tatum Burkett, Sharmini Chelvanayagam, Courtney Collins, Sally Dechow, Arch Kaminickas, Nicholas Snare, Lisa White, Nikki Wilson, James Woodford, Michelle Nguyen; and Aaron Chiong, Jessica De Jong, Amy Green, Laura Groves, Kaminni Kumar, Zhe Li, Sophie Manera, Michelle Ng, Gabriela Serrano, Amanda Silla, Patrick Spillane, Sarah Stone, Dimity Torpy, Kylie Woods and Caroline Zakowicz (volunteer law students). Sandra Boulter, Principal Solicitor and General Manager of the Mental Health Law Centre (WA) Inc. coordinated the project and edited the final version of this booklet. Printed and designed by Pilpel Print Text The Mental Health Law Centre (WA) Inc. Current as at June 2012 This first edition Published by the Mental Health Law Centre (WA) Inc. 96 98 Parry Street, Perth, Western Australia, 6000. P.O. Box 8466, Perth Business Centre Western Australia, 6849. June 2012 ISBN: 978-0-646-58401-0 Disclaimer of Liability Legal issues concerning the judicial system and mentally impaired accused can be complex and will vary from person to person. While care has been taken in the preparation of this booklet, the writer and publisher disclaim any liability for action taken or not taken as a result of the contents of this booklet or for any errors or omissions in the information. This booklet is written for people affected by the laws of Western Australia. ii

Contents DEFINITIONS: SOME WORDS IN THIS BOOKLET HAVE SPECIAL MEANING 1 WHAT IS THIS GUIDE ABOUT? 4 HAVE I BEEN CHARGED WITH AN OFFENCE/CRIME AND WHAT DO I DO? 5 Is there a difference between offence and crime? 5 What shall I do if the police want to talk to me about something they might want to charge me for? 5 How will I know if I have been charged with an offence/crime? 5 What if I am under arrest or otherwise in custody at the time I am charged with another offence/crime? 6 What if I am not under arrest or otherwise in custody at the time of being charged? 6 Serious offences/crimes 6 Less serious offences 6 What should I do if I lose the police documents? 6 How will I know when I have to go to Court? 7 How many times will I have to go to Court about my charges? 7 What will happen if I do not attend Court when the notice tells me to? 7 Can I overturn a conviction that is made in my absence? 8 YOUR FIRST ATTENDANCE AT COURT 9 What will happen if I am an involuntary patient detained in a psychiatric hospital on the date of my first appearance? 9 What will happen when I go to Court? 9 What happens if I am granted bail? 10 What happens if I am refused bail? 10 What can I do if I do not agree with the Magistrate s decision not to grant me bail? 11 What will happen if I am released on bail and do not attend my next Court date (or breach one of my bail conditions)? 11 What should I do if I miss my Court appearance? 12 What are the different types of offences? 12 How does the Magistrate decide whether or not my charges will be decided in the Magistrates Court, or the District or Supreme Courts? 12 If I am found guilty will the Court punish me more harshly because I have a mental illness/impairment? 13 iii

If I am found not guilty because the Court found that I had an unsound mind at the time I committed the offence, what will happen to me? 14 CAN I RECOVER MY LEGAL COSTS IF I SUCCESSFULLY PLEAD AN UNSOUND MIND AT THE TIME OF MY OFFENCE/CRIME? 15 WHERE CAN I BE DETAINED UNDER THE MIA ACT? 15 HOW CAN I BE DETAINED IF I AM ACCUSED OF A CRIME AND I HAVE A MENTAL IMPAIRMENT? 15 HOSPITAL ORDERS 16 What is a Hospital Order? 16 What will happen to me under a Hospital Order? 17 What happens when my Hospital Order ends? 17 What are my rights under a Hospital Order? 17 CUSTODY ORDERS 18 What is a Custody Order? 18 When can I raise the issue of being mentally unfit to stand trial? 18 What happens if I am found mentally unfit to stand trial? 18 Summary Offences (Magistrates Court) 18 Indictable Offences (Supreme Court and District Court) 19 When can I be found not guilty by reason of my unsound mind? 20 What happens if a Custody Order is made against me? 21 Who must the MIARB tell that I am on a Custody Order? 22 How does the MIARB decide whether or not the Governor should release me from my Custody Order? 23 Can I appeal against a Custody Order made by a Judge or Magistrate? 23 Custody Order made by Magistrate because of an acquittal based on your unsound mind or because you are unfit to stand trial 23 Custody Order made by Judge because of an acquittal on the basis of your unsound mind 24 Custody Order made by Judge because you are unfit to stand trial 24 Can I appeal against a decision made by the MIARB not to release me? 24 Can I appeal against the decision by the MIARB to detain me in a prison? 25 Do I have a right to be treated for my mental illness while I am in prison? 25 Can I refuse psychiatric treatment when I am in a prison? 26 Can I ask for a Leave of Absence Order from a Custody Order? 26 What will happen if I leave my place of detention without permission? 27 How can my Custody Order be ended? 27 iv

RELEASE ORDERS 28 What is a Release Order? 28 What happens if I breach a condition of my Release Order? 28 THE MENTALLY IMPAIRED ACCUSED REVIEW BOARD (MIARB) 29 Who makes up the MIARB and how are they chosen? 29 Can I request an early hearing before the MIARB? 29 Do I have a right to put my case in person to MIARB? 29 Can I be legally represented at a MIARB hearing? 30 Can I have a copy of any document in a decision made by the MIARB? 30 What documents do I have a right to have? 30 COMMONWEALTH (FEDERAL) OFFENCES/CRIMES 31 What is a Commonwealth offence/crime? 31 What happens if I suffered from a mental impairment at the time of committing a Commonwealth offence? 31 What happens if I am found mentally unfit to stand trial? 32 How can I be detained if I am accused of a Commonwealth offence and I suffer from a mental illness? 33 Sentencing Options 33 Hospital Orders 33 Psychiatric Probation Order 33 Dismissal of Charges 34 Western Australian COUNCIL OF OFFICIAL VISITORS 35 Who are the Official Visitors? 35 Can I request an attendance by an official visitor if I am detained on a custody order? 35 What do Official Visitors do? 35 How do I contact the Council of Official Visitors? 35 VICTIMS OF CRIME 36 Who do I contact if I or someone else is the victim of a crime? 36 How do I make a complaint and have someone charged? 36 Can I be sued for committing a crime against someone as well as being charged by the police? 36 v

Criminal Injuries Compensation 38 Can I be compensated if I am the victim of a crime? 38 When do I have to lodge my Criminal Injuries Compensation application? 39 Where can I get an application form? 39 Who can help me fill out a Criminal Injuries Compensation form? 39 How can I contact the people in charge of Criminal Injuries Compensation? 40 SAMPLE LETTERS THAT MAY BE USEFUL 41 (a) Sample Freedom of Information application letter to MIARB if the request is for personal information 41 (b) Sample Freedom of Information application letter to MIARB where request is for information which is not personal information 42 (c) Sample internal review letter if no response or refusal of documents or documents you know are missing 43 (d) Sample external review letter if no response or refusal of documents or documents you know are missing 44 (e) Sample Freedom of Information application letter to the Department of Attorney General (for documents of a legal nature) if the request is for personal information 45 (f) Sample Freedom of Information application letter to the Department of Attorney General (for documents of a legal nature where request is for information which is not personal information) 46 (g) Sample Freedom of Information application letter to the Public Advocate (for documents relating to personal guardianship) if the request is for personal information 47 (h) Sample Freedom of Information application letter to the Public Advocate (for documents relating to personal guardianship where information request is not personal information) 48 (i) How to make a law reform submission to the Attorney General 49 MENTAL HEALTH LAW CENTRE (WA) INC. 50 Aims of the Centre 50 How do I contact the Centre? 51 USEFUL SERVICES 52 LEGAL HELP 52 1. Mental Health Law Centre (WA) Inc. 52 2. Legal Aid WA 52 vi

NON - GOVERNMENT ORGANISATIONS 54 1. Health Consumers Council WA (Inc.) 54 GOVERNMENT ORGANISATIONS 55 1. Mental Health Commission 55 2. Office of the Chief Psychiatrist 55 3. Health and Disability Services Complaints Office 56 4. The Director General of Health 56 5. The Corruption and Crime Commission 57 6. The Australian Health Practitioner Regulation Agency 57 7. Council of Official Visitors 58 8. The Royal Australian and New Zealand College of Psychiatrists 58 9. State Ombudsman 59 10. Corrective Services Complaints (Prisons) 60 11. The Office of the Inspector of Custodial Service 60 12. State Attorney-General 61 13. Commonwealth Attorney-General 62 SERVICES FOR PEOPLE WITH HEARING OR SPEECH IMPAIRMENTS 63 HOW TO MAKE A COMPLAINT (NOTIFICATION) ABOUT A HEALTH PRACTITIONER 63 RELEVANT LAWS 65 Acts 65 Regulations 65 vii

Definitions DEFINITIONS: SOME WORDS IN THIS BOOKLET HAVE SPECIAL MEANING arrest warrant is a document issued by police for someone to be taken into police custody authorised hospitals means hospitals in Western Australia, which are authorised by the Government to hold patients with a mental illness against their will bench warrant an order made by a Magistrate or Judge, which requires a person to be brought into police custody for missing a Court date Court hearing notice means notice of a hearing date but does not require you to attend Court CTO means Community Treatment Order Custody Order means a Court order that a mentally impaired accused person is to be kept in custody declared place is a place declared by the Governor of Western Australia by an order published in the Gazette to be a place for the detention of mentally impaired accused detention centre as defined in the Young Offenders Act 1994 (WA) and is a place declared by a Minister by an order published in the Gazette to be a detention centre for a young person who has not reached 18 years of age Frankland Centre is a maximum-secure authorised psychiatric hospital within the Graylands Hospital campus, which is operated by the WA State Forensic Mental Health Service. The 30-bed facility assesses, securely detains, treats, rehabilitates and/ or re-socialises mentally ill patients and mentally impaired accused persons adults and children -, many of whom have been referred from the Courts or the prison system involuntary patient means an adult or minor who is for the time being the subject of an order under the Mental Health Act 1996 (WA), and who is detained in an authorised hospital or who is living in the community under a Community Treatment Order 1

Legal Aid is an independent statutory body set up by the Legal Aid Commission Act 1976. They provide information, advice and other legal help, depending on your financial position, your legal problem and Legal Aid s resources from time to time mental illness in relation to fitness to stand trial and Custody Orders under the MIA Act, is defined in the same way as it is in the Mental Health Act 1996 (WA) mental illness in the Mental Health Act 1996 (WA) is defined as follows: A person has a mental illness if the person suffers a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent. A person does not have a mental illness by reason only of one or more of the following, that is, the person: a) Holds, or refuses to hold, a particular religious, philosophical, or political belief or opinion; b) Is sexually promiscuous, or has a particular sexual preference; c) Engages in immoral or indecent conduct; d) Has an intellectual disability; e) Takes drugs or alcohol; f) Demonstrates anti-social behaviour. mental impairment in relation to fitness to stand trial under the MIA Act includes intellectual disability, mental illness (as defined above), brain damage and/or senility mental unfitness to stand trial means a person is not mentally fit to stand trial for an offence/crime, if because of mental impairment, he or she is unable to: understand the charge; understand the need to plead to the charge; understand the effect of a plea; understand the purpose of a trial; understand or exercise the right to challenge jurors; follow the course of the trial; understand the substantial effect of evidence presented by the prosecution in the trial; or properly defend the charge. The person may or may not have been mentally fit at the time that the offence or crime they have been charged with was committed. 2

MHRB means the Mental Health Review Board, which is established under the Mental Health Act 1996 (WA) to review involuntary orders made under the Mental Health Act MIA Act means the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) MIARB means the Mentally Impaired Accused Review Board, which is established under the MIA Act to review orders made under the MIA Act prosecution notice means a document that will tell you what you are charged with public interest refers to considerations affecting the good order and functioning of community and government affairs in relation to the well-being of citizens, and which might be applied by a police officer, the Director of Public Prosecutions or a Court in deciding how to dispose of criminal charges against someone with a mental illness or mental impairment senior mental health practitioner is defined in the Mental Health Act to be a mental health practitioner with at least 5 years experience in the treatment of persons who have a mental illness summons means a document that will state the time and place, and where and when you are required to attend Court These defined terms where they appear in this booklet will appear in bold font. 3

What Is This Guide About? If you are charged with an offence or a crime in Western Australia and you have a mental illness and/or a mental impairment, there are laws to make sure that the Courts take your mental state into account when dealing with and disposing of your charges. Some of these laws are found in an Act called the Criminal Law (Mentally Impaired Accused) Act 1996 (the MIA Act). This booklet is about the MIA Act and is designed to help you understand: what will happen to you if you are charged with an offence and if the MIA Act applies to you; how you can be detained under the MIA Act; and your rights while you are detained under the MIA Act. If you have any questions about your treatment or assessment if you are accused of a crime and this Act applies to you, you should speak to the psychiatrist who is treating you, and your lawyer(s). If you have a question about how the MIA Act affects you, you can find this out from the Mental Health Law Centre, Legal Aid Western Australia or your own lawyer. A list of other organisations, which may be able to help you, is found at the end of this Guide. 4

Have I Been Charged With An Offence/Crime and What Do I Do? Is there a difference between offence and crime? Yes. The word offence is a general term used to refer to all unlawful acts regardless of their seriousness. It includes all unlawful acts ranging from speeding in a car to murder. A crime is only a serious offence, such as murder and armed robbery. Please note that in everyday language the term crime is often used interchangeably with the term offence. For example, a person may incorrectly refer to speeding as a crime, which is technically incorrect- it is an offence or an unlawful act. What shall I do if the police want to talk to me about something they might want to charge me for? If the police reasonably suspect that you have committed an offence, they are authorised to ask you to provide your personal details, which include your full name, date of birth, your current address or your usual address. 1 You are required only to provide these details (and nothing more). If the police reasonably suspect that the information you give them is false, they can ask you to produce documents that show the information you have given them is true. 2 You should not participate in any video recorded interview, or make any statement to the police before talking to your lawyer. How will I know if I have been charged with an offence/crime? If you are charged with an offence/crime you will be issued with a prosecution notice. This notice will tell you what you are charged with. 1 s 16(2) Criminal Investigation (Identifying People) Act 2002 (WA) 2 s 16(3) Criminal Investigation (Identifying People) Act 2002 (WA) 5

What if I am under arrest or otherwise in custody at the time I am charged with another offence/crime? If you are under arrest or otherwise in custody at the time you are charged with a new offence/crime, you must be given the prosecution notice. 3 What if I am not under arrest or otherwise in custody at the time of being charged? Serious offences/crimes If you are not under arrest or otherwise in custody, and you have been charged with an offence or a crime, you will be issued with a summons, which will require you to attend a Court hearing. If you do not attend the hearing on the due date you may be arrested. 4 The summons should be within your prosecution notice. 5 If you are arrested and you have not been issued with a prosecution notice before your arrest, the prosecution notice must be attached to your arrest warrant. 6 Less serious offences If you are not under arrest or otherwise in custody, and you have been charged with an offence/crime of a less serious nature you will be issued with a Court hearing notice; or you will be arrested. 7 The Court hearing notice should be included within the prosecution notice. 8 If you are arrested and you have not been issued with a prosecution notice before this, it must be attached to the arrest warrant. 9 What should I do if I lose the police documents? You can obtain a copy of your Court documents from: In person: From the Police Post 3 rd floor Perth Magistrates Court, or From the Clerk of the Court in which you have to appear. 3 s 27 Criminal Procedure Act 2004 (WA) 4 s 28 Criminal Procedure Act 2004 (WA) 5 s 32(1)(b) Criminal Procedure Act 2004 (WA) 6 s 31 Criminal Procedure Act 2004 (WA) 7 s 28 Criminal Procedure Act 2004 (WA) 8 s 33(1)(b) Criminal Procedure Act 2004 (WA) 9 s 31 Criminal Procedure Act 2004 (WA) 6

In writing: To the Clerk of the Court in which you have to appear To the Investigating Police Officer. There may be a charge for the copies from the Court because you will need to complete a Form 1 Application for the replacement documents. How will I know when I have to go to Court? If you are not under arrest or otherwise in custody, a summons will state the time and place where you are required to attend Court. 10 If you have received a Court hearing notice, it will state the time and place of your Court hearing but you will not have to attend Court. If you have received a Court hearing notice and do not attend Court, you can send in a written plea of guilty or not guilty. If you plead guilty the Court will decide the matter in your absence. If you send in a written plea of not guilty the Court will set a hearing date and issue you a notice of when you have to attend Court for the trial. If you do nothing (do not send a written plea to the Court and do not attend Court), the Magistrate can convict and sentence you in your absence. How many times will I have to go to Court about my charges? The number of times you have to attend Court about your charges will depend on the circumstances and seriousness of your charge(s), and how you plead to the charge(s). You may have to attend Court a number of times before the Court process is finished. What will happen if I do not attend Court when the notice tells me to? If you are late for Court or do not attend at all on the day you are due in Court and you do not send the Court a written plea in time, the Court may determine the charge(s) at the hearing in your absence as follows: the Court may take as proved any allegation in the attached prosecution notice without hearing evidence; OR the Court may decide to summons you to Court or have you arrested and brought before the Court. If the Court finds you guilty in your absence, it may fine you and order you to pay Court costs and the prosecutor s costs. 10 s 32 Criminal Procedure Act 2004 (WA) 7

Can I overturn a conviction that is made in my absence? Yes. You can apply to have a conviction overturned if it was made in your absence. This application is made to the Magistrates Court. You apply to have your conviction overturned in these circumstances by lodging a document called, Magistrates Court Application to Set Aside a Decision Made in Absence of a Party also known as a Form 7. You can access and print this document from the Magistrates Court website at http:// www.magistratescourt.wa.gov.au and then click Criminal Matters on the left hand side, and click on Form 7- Application to Set Aside Decision. 8

Your First Attendance At Court What will happen if I am an involuntary patient detained in a psychiatric hospital on the date of my first appearance? If you are detained as an involuntary patient in a psychiatric hospital: you may be taken to Court; or you may appear by video link; or your psychiatrist may choose to write a medical letter to the Court asking that you be excused from attendance, which you or your lawyer can give to the Court on the date of your first appearance. What will happen when I go to Court? If you do not already have a lawyer you should arrive at Court early and ask to see a Legal Aid duty lawyer. The duty lawyer can assess whether or not you should make an application for Legal Aid. Anyone can help you fill out your application for Legal Aid. If your matter is not finished after your first appearance, the Magistrate will decide or reconsider whether or not you should be granted bail. This means that the Magistrate will decide whether or not you must be detained in a prison or released until your charge(s) is/are decided. You may need to have organised someone to act as your surety for a bail application. A surety is a person who agrees to forfeit a sum of money or some other security if you fail to comply with your bail conditions. If you fail to comply with any condition of your bail, the surety money or any other security supplied by you or others, will be forfeited to the Court. 11 If you do not have a surety, this will not necessarily prevent you being granted bail (but it might). 11 s 35(1) Bail Act 1982 (WA) 9

What happens if I am granted bail? If you are granted bail, you will have to agree to: attend your next Court date at the set time; and comply strictly with all your bail conditions. Examples of bail conditions that the Court might apply include that you: live in a particular place; comply with a home detention order; receive treatment from your doctor or psychiatrist; do not contact particular people or enter specified places, which the Court will name (sometimes called protective bail conditions); abide by a curfew (that is, the time each day that you must be back where you are living); and/or put forward a sum of money or some other thing that you will lose if you do not comply with your bail conditions. 12 What happens if I am refused bail? If the Court refuses you bail AND the Court believes you require assessment by a psychiatrist and you are not an involuntary inpatient, the Court can make a Hospital Order. This means that you will be sent to a psychiatric hospital (for up to seven (7) days) for examination by a psychiatrist. (See the Hospital Orders section of this Guide). The Magistrate cannot make a Hospital Order if you are an involuntary patient. If you are refused bail AND the Magistrate does not make a Hospital Order, then the Magistrate will make an order to keep you in custody in a prison. This means that you will stay in prison (or an authorised hospital) to wait for your next Court appearance. If, during your time in prison, you become so mentally unwell that you require treatment in a psychiatric hospital, a psychiatrist can make you an involuntary patient. You can then be moved from the prison and sent to a psychiatric hospital for treatment. 12 Schedule 1 Part D Bail Act 1982 (WA) 10

What can I do if I do not agree with the Magistrate s decision not to grant me bail? You can re-apply to the same Court that refused your bail application and ask the Court to reconsider whether or not bail should be granted. In that application, you will have to satisfy the Court that: a) new facts have been discovered, new circumstances have arisen or your circumstances have changed since bail was first refused; b) you failed to adequately present your case for bail on the previous occasion that bail was refused; or c) if bail was granted subject to a home detention condition, that you have complied with this condition for a month or more. If one of these considerations is satisfied, the Court may grant you bail or vary the conditions of your bail. 13 It would be helpful to have a lawyer make this application for you. You cannot appeal to a higher Court against a Magistrates Court decision to refuse you bail. 14 However, if the decision to refuse you bail was made by a Judge in the District or Supreme Courts, you can apply for leave to appeal against the bail decision to the Western Australian Court of Appeal. 15 This application for leave to appeal must be lodged within 21 days of the date that your bail decision was made. What will happen if I am released on bail and do not attend my next Court date (or breach one of my bail conditions)? If you fail to attend Court, or you fail to appear as soon as practicable, or you breach a protective bail condition, you may be charged with breaching your bail conditions. If guilty, the Court can issue a bench warrant for your arrest, and fine you up to $10,000 and/or imprison you. 16 You may also have to pay the cost of your apprehension by the police following the breach of your bail condition(s). If you give false information for bail purposes, the Court can fine you up to $1,000 and/or imprison you. 17 13 s 15B(4) and s 15B(5) and s 54 Bail Act 1982 (WA) 14 s 7(3)(c) Criminal Appeals Act 2004 (WA) 15 s 15A(2) Bail Act 1982 (WA) 16 s 51 Bail Act 1982 (WA) 17 s 62 Bail Act 1982 (WA) 11

What should I do if I miss my Court appearance? If you miss your Court appearance for any reason, you should attend Court as soon as possible afterwards and hand yourself into the police at Court. This will show the Court and police that you are not trying to avoid Court. If you had a genuine reason for not being able to attend Court, such as being ill or because of an emergency, you should bring evidence of this with you when you hand yourself in at the Court. What are the different types of offences? Offences fall into one of the following three categories: 18 Indictable (pronounced indite-able) only offence: the offence is a crime, and there is no specified summary conviction penalty. It must be dealt with on indictment. Examples of indictable offences include murder and armed robbery. Indictable offences can only be heard by a Judge in the District or Supreme Courts. Summary only offence: the offence is a simple offence and can only be dealt with summarily. 19 Examples of summary offences include damaging property, disorderly behaviour in public and trespass. Summary offences can only be heard before a Magistrate in the Magistrates Court. Either way offence: the offence is a crime, but also has a summary conviction penalty. Examples of either way offences include being armed to cause fear, receiving stolen property and fraud. Either way offences can be heard either by a Magistrate in the Magistrates Court, or a Judge in the District or Supreme Court. How does the Magistrate decide whether or not my charges will be decided in the Magistrates Court, or the District or Supreme Courts? When the law provides a choice between an offence being summary or indictable, the Magistrates Court must decide the outcome of your charges summarily unless: i) you or the prosecutor apply for the charges to be tried on indictment (that is, in the District or Supreme Court), before you plead to the charge; or ii) a written law requires that your charge must be dealt with in the District Court or Supreme Court. 18 s 5 Criminal Code Act Compilation Act 1913 (WA) 19 Except under s 32 Sentencing Act 1995 (WA) 12

If an application is made to hear the case in a Superior Court, the Magistrate can only allow this to happen if the Magistrate decides that: the circumstances of your offence are so serious that if you were convicted of the offence the Magistrates Court would not have the power to punish you adequately; your charge forms part of a series of alleged offences you committed during a course of conduct and you must be tried for one or more of these other offences in a higher Court; you have a co-accused who is to be tried for the same offence in a higher Court; your charge forms part of a course of conduct during which other offences were said to have been committed by you and others, and you or one of the others is to be tried in a higher Court for one or more of those other offences; or the interests of justice require that your charge is dealt with in a higher Court. To make its decision about which Court your charges will be heard, the Magistrates Court may require information from the prosecutor and may hear submissions from both you or your lawyer, and the prosecutor. The Court may adjourn the proceedings to think about its decision once it has heard from both sides or the Court may decide at the time of the hearing. Once the Magistrates Court has made its decision about where your charges will be heard, the decision is final and you cannot appeal against this decision. If the Magistrates Court convicts you of your charges summarily, it can: send you to a higher Court for sentencing where heavier sentences can be made; or sentence you to the penalties available to the Magistrates Court. If I am found guilty will the Court punish me more harshly because I have a mental illness/impairment? No. The Court is required to take into consideration your mental illness/impairment and it is possible that this will result in a more lenient sentence being imposed (than if you did not have a mental illness/impairment). 20 20 See Krijestorac v The State of Western Australia [2010] WASCA 35; R v Verdins [2007] VSCA 102 13

If I am found not guilty because the Court found that I had an unsound mind at the time I committed the offence, what will happen to me? Under the MIA Act, if you are found not guilty of an offence/crime because you had an unsound mind at the time of the offence/ crime, the following rules apply: In a Magistrates Court (or the District or Supreme Court) if your offence is not listed in Schedule 1 of the MIA Act, the Court may decide to: (i) Release you unconditionally, if it considers it is just to do so; To reach this decision the Court will look at: - the nature of your offence and the circumstances under which you committed the offence; - your age, character, health, mental condition and prior history; and - the public interest (ii) Or make: - a conditional release order (CRO); - a community based order (CBO); - an intensive supervision order (ISO); or - a Custody Order. The Court cannot make a CBO, CRO or ISO unless the order could have been made if you had been found guilty of the offence. If you breach a CBO, CRO or ISO and it is cancelled, the Court must then make a Custody Order (see the Custody Orders section in this Guide). In the District Court or Supreme Court, if your offence/crime is listed in Schedule 1 of the MIA Act, the Court must make a Custody Order. (See the Custody Orders section in this Guide). 14

Can I Recover My Legal Costs If I Successfully Plead An Unsound Mind At The Time Of My Offence/Crime? No. Where Can I Be Detained Under The MIA Act? There are a number of hospitals in Western Australia which are authorised by the Government to keep patients with a mental illness against their will. These are called authorised hospitals. The most secure authorised hospital in Western Australia is the Frankland Centre. You can be sent to the Frankland Centre by a Hospital Order or a Custody Order. If a Custody Order is made against you, you can be detained in an authorised hospital, a declared place 21 or a prison. At the date of writing this Guide, there is no declared place built in Western Australia. If you are a young offender you may be kept in a detention centre. 22 How Can I Be Detained If I Am Accused Of A Crime And I Have A Mental Impairment? There are three ways that you can be detained under the MIA Act: a Hospital Order, a Custody Order or remanded in custody. 21 There are currently no declared places built in WA 22 In WA available detention centres are Banksia Hill Detention Centre or Rangeview Remand Centre 15

Hospital Orders What is a Hospital Order? A Hospital Order is an order made by a Court that you must be sent to a hospital for a psychiatric assessment. It is the present policy of the WA government that an assessment of a person under a Hospital Order must be undertaken at the Frankland Centre. A Hospital Order can only be made if: you have been refused bail; AND the Magistrate or Judge suspects on reasonable grounds that: - you have a mental illness that requires treatment; AND - this treatment is required to protect your (or someone else s) health or safety, or to prevent you causing serious damage to property; AND - you have refused treatment or your illness stops you being able to agree to treatment, BUT a Hospital Order cannot be made if you are an involuntary patient (either in hospital or on leave from hospital or on a Community Treatment Order). 23 Given that the Court is prohibited from making a Hospital Order if you are an involuntary patient. If you are: charged with an offence; AND you are on a Community Treatment Order or on Leave from an Authorised Hospital; AND you believe that bail might not be granted, you should speak to your treating psychiatrist about whether or not he or she wants to revoke your Community Treatment Order or withdraw your leave of absence, and admit/readmit you to hospital before your first appearance. If the Court does not grant you bail, the Court will be required to send you to prison if you are an involuntary patient. Often, the Court will ask that a mental health nurse (when one is available to the Court) examine you before deciding whether or not to make you subject to a Hospital Order. 23 s 5(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 16

What will happen to me under a Hospital Order? While you are detained under a Hospital Order, you must be assessed by a qualified psychiatrist, who will decide whether or not you should be made an involuntary patient detained in an authorised hospital. A psychiatrist has the power to make you an involuntary patient detained in an authorised hospital if he or she is satisfied that: you have a mental illness that requires treatment; AND you need treatment to protect your own health and safety (this includes your financial safety and your reputation), or the safety of other people or to prevent serious damage to property; AND you have refused treatment or, because of the nature of your illness you cannot agree to treatment; AND adequate treatment cannot be provided to you in another place, which is less restrictive of your freedom. What happens when my Hospital Order ends? Your Hospital Order cannot last for more than seven (7) days. After seven (7) days (or less) you must be returned to Court (or you might appear in Court by video link from your hospital or be excused from appearing if you are too ill to appear) where the Court will decide what orders to make. If you have been made an involuntary patient after being assessed by a psychiatrist, you will stay in or be returned to the psychiatric hospital, rather than being detained in prison. If you are refused bail and you have not been made an involuntary patient after being assessed by a psychiatrist, you will be taken to prison. This is called being remanded in custody. You will stay in custody in the prison at least until your next Court appearance. What are my rights under a Hospital Order? While you are detained under a Hospital Order you have the right to be: received into an authorised hospital for examination within seven (7) days of the referral being made; 24 assessed by a psychiatrist; and brought before the Court on the date set by the judicial officer which must not be more than seven (7) days after the date on which the Hospital Order was made. 25 24 s 36 (2) Mental Health Act 1996 (WA) 25 s 36 (1)(b) Mental Health Act 1996 (WA) 17

Custody Orders What is a Custody Order? A Custody Order can be made when you have been found by a Court: to be mentally unfit to stand trial; or not guilty of the offence/crime you are charged with by reason of your unsound mind at the time that the offence/crime was committed. Making you subject to a Custody Order means that you will be kept in an authorised hospital, a declared place, a detention centre (if you are a young offender) or a prison, until you are released by an order of the Governor. There is no time limit to a Custody Order in WA it means indefinite detention at the Governor s pleasure. When can I raise the issue of being mentally unfit to stand trial? The issue of whether or not you are mentally fit to stand trial may be raised at any time before or during your trial by the Court, the prosecutor, you or your lawyer, 26 and can be raised more than once. What happens if I am found mentally unfit to stand trial? Summary Offences (Magistrates Court) If the Court is satisfied that you will not become well enough to stand trial within six (6) months of finding that you are mentally unfit to stand trial, 27 the Court must make an order dismissing the charge without deciding your guilt, and either release you or make you subject to a Custody Order. 28 If the Court is not satisfied that you will be well enough to stand trial within six (6) months, the Magistrate may adjourn your hearing for up to six (6) months. 29 If at any time during or at the end of the six (6) months the Court finds you are not well enough to stand trial, the Court must make an order dismissing the charge without deciding your guilt and either release you or make you subject to a Custody Order. 30 26 s 11(1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 27 s 16(2)(a) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 28 s 16(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 29 s 16(3) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 30 s 16(4) and s 16(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 18

If an order is made dismissing your charge(s) you cannot again be charged or tried again for that offence. 31 If you have been found mentally unfit to stand trial, the Magistrate can make a Custody Order only if the offence you have been charged with is one for which you could have been sentenced to a term of imprisonment. 32 The Magistrate must take note of the following facts when deciding whether or not to make you subject to a MIA Custody Order: 33 the strength of the evidence against you; AND the nature and circumstances of the offence you are charged with; AND your character, past history, age, health and mental condition; AND the public interest. If a Magistrate (including where a Magistrate has heard an indictable offence) 34 orders you to be released or orders you to be detained under a Custody Order because you are not well enough to stand trial you cannot again be charged or tried for the offence. 35 Indictable Offences (Supreme Court and District Court) If the Judge is satisfied that you will not become well enough to stand trial within six (6) months of finding that you are mentally unfit, 36 the Judge must make an order dismissing the charge without deciding your guilt, and either release you or make a Custody Order. 37 If the Judge is not satisfied that you will be well enough to stand trial within six (6) months, the Judge may adjourn your hearing for up to six (6) months. 38 If at any time, during or at the end of the six (6) months, the Court finds that you are not well enough to stand trial, the Court must make an order dismissing the charge without deciding your guilt and either release you or make a Custody Order. 39 31 s 16(8) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 32 s 16(6) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 33 s 16(6) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 34 s 16(1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 35 s 16(8) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 36 s 19(1)(a) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 37 s 19(4) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 38 s 19(2) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 39 s 19(3) and s 19(4) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 19

If an order is made by a Judge in the District or Supreme Courts dismissing your charge(s), you may be formally charged and tried for the offence when you are later found fit to stand trial. 40 If you have been found mentally unfit to stand trial, the Judge can make a Custody Order only if the offence you have been charged with is one for which you can be sentenced to a term of imprisonment. 41 The Judge must take note of the following when deciding whether or not to make a Custody Order: 42 the strength of the evidence against you; AND the nature and circumstances of the offence you are charged with; AND your character, past history, age, health and mental condition; AND the public interest. The Court must be satisfied that you will not become well enough to stand trial within six (6) months of making the finding that you are mentally unfit. If the Court is not satisfied that you will be well enough to stand trial within six (6) months, the Court may adjourn your hearing for up to six (6) months after making the finding. If your hearing is adjourned, after six (6) months the Court must either release you or make a Custody Order. If a Judge in the District or Supreme Courts orders that you are to be released or orders you to be detained under a Custody Order because you are not well enough to stand trial, you may be formally charged and tried for that crime when you are later found to be fit to stand trial 43 When can I be found not guilty by reason of my unsound mind? You may be found not guilty by reason of unsound mind if: you are fit to stand trial, BUT at the time you committed the offence, you were suffering from a mental impairment, which meant that you could not: 40 s 19(7) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 41 s 19(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 42 s 16(6) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 43 s 19(7) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 20

- understand what you were doing; and/or - control your actions; and/or - know that you should not have done what you were charged with. If you are acquitted of the charges against you on the basis of your unsound mind for offence(s) heard in the Magistrates Court, the Magistrate can make a Custody Order only if he or she is satisfied that it is not safe for you to be released. Given the serious nature of a Custody Order, law reform should be considered that prohibits magistrates from making Custody Orders. For serious crimes identified in a special list in the MIA Act, 44 which are heard in the District or Supreme Courts, the Judge must make a Custody Order if you are acquitted on the basis of your unsound mind of one of the crimes in the special list. What happens if a Custody Order is made against me? If a Custody Order is made against you, the Mentally Impaired Accused Review Board (MIARB) (not your doctor) must decide (within five (5) days) where you will be sent and detained. You will be detained in: an authorised hospital (only if you have a mental illness capable of being treated, treatment is required, you have refused treatment, and treatment can only be satisfactorily provided in a hospital); OR a declared place; 45 OR a detention centre (if you are under 18); OR a prison. 44 Serious offences identified in Schedule 1 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) include: murder; manslaughter; unlawful assault causing death; attempt to murder; disabling in order to commit indictable offence etc; acts intended to cause grievous bodily harm or to resist or prevent arrest; grievous bodily harm; wounding and similar acts; acts or omissions, with intent to harm, causing bodily harm or danger; assaults occasioning bodily harm; assaults with intent; serious assaults; indecent assault; aggravated indecent assault; sexual penetration without consent; aggravated sexual penetration without consent; sexual coercion; aggravated sexual coercion; incapable person: sexual offences against; sexual servitude; conducting business involving sexual servitude; deceptive recruiting for commercial sexual services; kidnapping; deprivation of liberty; stalking committed in circumstances of aggravation; stealing a motor vehicle, aggravated by reckless or dangerous driving; robbery; assault with intent to rob; criminal damage; wilfully lighting a fire or causing a fire to be lit under such circumstances as to be likely to injure or damage a person or property; and dangerous driving causing death, injury etc 45 No declared place has been built in WA 21

If you were detained in an authorised hospital when your Custody Order was first made, you will remain there until the MIARB makes its decision. Whether or not you were an involuntary patient at the time of your detention, you are not entitled to be released from the hospital until the MIARB decides that you can be released. 46 If you were not detained in an authorised hospital when your Custody Order was made, you will be detained in prison or a detention centre until the MIARB makes its decision about where you are to be detained. Within eight (8) weeks of the commencement of your Custody Order, the MIARB must review your Custody Order and it must submit a written report to the Attorney General. After that first review, the MIARB must review your Custody Order at least once every twelve (12) months thereafter. The MIARB report must recommend whether or not the Governor should be advised to release you. 47 The MIARB may change the place where you are held on your Custody Order at any time. Who must the MIARB tell that I am on a Custody Order? As soon as practicable after your Custody Order is made, the MIARB must give you a copy of any report they make about you and, on your request, to your lawyer and/or guardian. 48 If the MIARB recommends that the Governor should be advised to release you, the MIARB is required to give a copy of the report to the Commissioner of Police and the Director of Public Prosecutions. 49 The MIARB must give a copy of your release order to you, and on your request to your lawyer and/or your guardian, the Commissioner of Police and the Director of Public Prosecutions. 50 The MIARB is required to notify the Office of the Public Advocate that you are a mentally impaired accused on a Custody Order. 51 The Public Advocate is required to investigate whether or not you need an administrator of your estate; and it can take other actions it considers appropriate, which could include the appointment of a legal representative for you. 52 46 s 25 (3) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 47 s 33 (3) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 48 s 34 (1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 49 s 34 (2) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 50 s 36 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 51 s 98(1) Guardianship and Administration Act 1990 (WA) 52 s 98(2) Guardianship and Administration Act 1990 (WA) 22

How does the MIARB decide whether or not the Governor should release me from my Custody Order? In making the decision about whether or not to release you from your Custody Order, the MIARB must take note of the following factors: 1. the degree of risk that your release poses to the personal safety of people generally and/or any particular individual; 2. the likelihood of your compliance with the conditions of your release; 3. the extent to which your mental impairment may improve from treatment, training or any other measure; 4. the likelihood that you can take care of your day to day needs, obtain appropriate treatment and resist serious exploitation; 5. the least restriction of your freedom of choice and movement to protect your health and safety or any other person s health or safety; and 6. any statements received from any victims. The MIARB can recommend a leave of absence (see the Leave of Absence section of this booklet). A valid MIARB order must be signed by two (2) of its members. Can I appeal against a Custody Order made by a Judge or Magistrate? Custody Order made by Magistrate because of an acquittal based on your unsound mind or because you are unfit to stand trial If you are acquitted of a less serious charge on account of your unsound mind or because you are unfit to stand trial, and a Custody Order is made against you, you may apply for review of that decision to the Supreme Court within 28 days of the Order if: the Judge or Magistrate made an error of law or fact, or of both law and fact; the Judge or Magistrate acted without or in excess of the Court s jurisdiction; the Custody Order is excessive, 53 or there has been a miscarriage of justice. 54 The permission of the Supreme Court (called leave ) must be given before the Court will hear your appeal. 55 53 s 8 (1)(a) Criminal Appeals Act 2004 (WA) 54 s 8 (1)(b) Criminal Appeals Act 2004 (WA) 55 s 9 (1) Criminal Appeals Act 2004 (WA) 23

If you appeal against a Custody Order to a single Judge of the Supreme Court and you are dissatisfied with that Judge s decision, you may seek leave to appeal to the Court of Appeal against the decision 56 but only within twenty-one (21) days of the date of the decision. 57 Custody Order made by Judge because of an acquittal on the basis of your unsound mind If you are acquitted of a charge for a serious offence on account of your unsound mind and a Custody Order is made against you by a Judge in the District or Supreme Court, you may appeal that decision to the WA Court of Appeal. 58 You can appeal against either the acquittal or the Custody Order, and unlike a decision from a Magistrate, you are not required to obtain leave (you have a right of appeal ). 59 Custody Order made by Judge because you are unfit to stand trial You have a right of appeal against a Judge s decision that you are unfit to stand trial and/or the Judge s decision to make you subject to a Custody Order. 60,61 Can I appeal against a decision made by the MIARB not to release me? There is no right of appeal against a MIARB decision. However, decisions of the MIARB are reviewable in the Supreme Court by application if leave is granted by the Court. This is called an application for a judicial review of the MIARB s decision. It is not an appeal but a review of the administrative decision making process. 56 s 16(2) Criminal Appeals Act 2004 (WA) 57 s 17 (3) Criminal Appeals Act 2004 (WA) 58 s 25 (2)(b) Criminal Appeals Act 2004 (WA). See also s 79 District Court of Western Australia Act 1969 (WA) and s 58 Supreme Court Act 1935 59 s 25 (2)(b) Criminal Appeals Act 2004 (WA). However if the Judge had no discretion in ordering the Custody Order because the offence committed is contained in Schedule 1 Criminal Law (Mentally Impaired Accused Act) 1996 (WA) then you can only appeal against the decision that you were of unsound mind at the time of the offence 60 s 12(4) Criminal Law (Mentally Impaired Accused) Act 1996 (WA). See also s 79 District Court of Western Australia Act 1969 (WA) and s 58 Supreme Court Act 1935 61 s 6 (1) Criminal Appeals Act 2004 (WA) 24

Can I appeal against the decision by the MIARB to detain me in a prison? This is an administrative decision and may be subject to judicial review by the Supreme Court of Western Australia, if there is an error in law. Your grounds for a judicial review could include: you were denied natural justice; abuse of power; failure to exercise power; and/or action in excess of the Court s power (known as ultra vires). However, the MIA Act provides that the MIARB cannot detain you in an authorised hospital unless it is satisfied that you have a mental illness requiring treatment; and the treatment is required in order - to protect the health or safety of you or any other person; or - to prevent you doing serious damage to any property; you have refused or, due to the nature of your mental illness, you are unable to consent to the treatment; and the treatment can only be provided satisfactorily in an authorised hospital. 62 Do I have a right to be treated for my mental illness while I am in prison? The Prisons Act 1981 (WA) requires that medical care and treatment is provided to prisoners. 63 The High Court has held that prison regulations do not confer rights on prisoners. 64 62 s 24(3) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 63 s 95A(1) Prisons Act 1981 (WA). Furthermore, Courts have established that in the exercise of their power authorities owe prisoners a duty of care: see Cekan v Haines (1990) 21 NSWLR 296. In 2005 the High Court of Australia confirmed the duty of care owed to prisoners due to their special and vulnerable status while in prison: see State of New South Wales v Bujdoso [2005] HCA 76 (8 December 2005). Also see the recent decision of the European Court of Human Rights in Dybeku v Albania [2007] ECHR 41153/06 (18 December 2007) which held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody or detention. The Court further held that a failure to provide adequate mental health care to detainees in circumstances which do not adequately accommodate, or which result in the deterioration of, a person s mental health, may amount to a violation of the prohibition on torture and ill-treatment. This decision is relevant because Australia must protect prisoner s right to be treated with humanity, dignity and respect while in detention; See articles 7 and 10 of the ICCPR, article 37 of the Convention on the Rights of the Child (CRC) and in Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). However, unfortunately these rights may only be invoked by prisoners convicted of Commonwealth offences such as drug smuggling and social security fraud. This is because the Human Rights and Equal Opportunity Commission Act 1986 (Cth) can and does only oblige the Commonwealth Government to observe human rights standards in areas of Commonwealth powers 64 see Flynn v R (1949) 79 CLR 1 25

If the prison s superintendent or a medical officer, together with the Chief Executive Officer of Corrective Services, grant their approval, you may be examined by a medical practitioner. This permission may be granted: a) for official purposes affecting you (official purposes is not defined in the Act); OR b) for the purposes of proceedings or pending proceedings of a Court; OR c) towards any claim for compensation, damages, insurance or other benefit in respect of you; OR d) for any purpose, which the superintendent and chief executive officer are satisfied is necessary or desirable. On the request of the Chief Executive Officer, 65 a medical officer (a doctor who is not a supervisor) appointed to attend the prison, may examine you as soon as practicable after your admission to prison, ascertain and record your state of health; and maintain a record of the treatment, which is to be given. However, this may not happen automatically on your admission to a prison. If you are denied treatment for your mental illness while you are in prison please seek legal advice about your rights. You may contact the Mental Health Law Centre to speak to a lawyer who may be able to assist you. Can I refuse psychiatric treatment when I am in a prison? The law on this is unclear. If you are being forced to undergo psychiatric treatment against your will in prison or the requirements of your Community Treatment Order are not being observed by the prison, please contact the Mental Health Law Centre to speak with a lawyer who may be able to assist you. Can I ask for a Leave of Absence Order from a Custody Order? The MIA Act is silent about how a leave of absence can be initiated. It seems that the procedure is that you can make a request to the MIARB for a Leave of Absence Order to be made. A Leave of Absence Order (for up to fourteen (14) days) can be granted by the MIARB at any time if the Governor has authorised it and if recommended by the MIARB to the Attorney-General, with or without conditions as required by the MIARB. 66 65 s 95B(b) and (c) Prisons Act 1981 (WA) 66 s 26 and s 27 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 26

When the Governor is considering whether or not to authorise the MIARB to make a Leave of Absence for you, the Governor must first consider: the degree of risk you present to the personal safety of people in your community or any individual; AND the likelihood that you will comply with any conditions of your Leave of Absence Order. While you are on a leave of absence, you are still lawfully considered to be detained at the place where you have been given leave from. What will happen if I leave my place of detention without permission? If you leave your place of custody without formal leave, or if you do not return when your leave is ordered to finish or is cancelled, you commit an offence. You can be sentenced for up to twelve (12) months in prison or be fined up to $12, 000 if you leave your place of detention without leave of the MIARB. 67 If you are absent without leave from a place of custody, you can be detained by an authorised mental health practitioner or a police officer, who must return you to the place where you are absent from. How can my Custody Order be ended? There are two ways that your Custody Order can be ended: If you are released unconditionally under a Release Order, the Custody Order is discharged when you are released; OR If you are released on a Conditional Release Order (CRO) (the Custody Order is discharged only when the conditions on the CRO cease to apply). If you are released on certain conditions, you can still be made an involuntary patient under the Mental Health Act and be detained as an involuntary patient. 68 67 s 31(2) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 68 s 27(2) Mental Health Act 1996 (WA) 27

Release Orders What is a Release Order? A Release Order is an order to release you from your Custody Order, with or without conditions. If you are released on conditions, these conditions may apply indefinitely or for a set period of time and may be changed or cancelled anytime. Examples of conditions include requirements to: undergo specific treatment or training; live at a specified place; comply with the directions of a supervising officer; and comply with your treatment. Under a Release Order, you will be released on the stated release date, unless you are required to be kept in custody in relation to another charge. The MIARB must give copies of your Release Order to you (and to your lawyer and/or guardian if you request it), the Commissioner of Police and the Director of Public Prosecutions. What happens if I breach a condition of my Release Order? If you breach a condition of your Release Order, the MIARB may cancel your Release Order. If this occurs, you may be arrested and detained. The MIARB can issue a warrant for your arrest to return you to custody. 28

The Mentally Impaired Accused Review Board (Miarb) Who makes up the MIARB and how are they chosen? The MIARB consists of a chairperson (who must be a Judge or retired Judge of the District Court or Supreme Court), 69 community members, a psychiatrist and a psychologist, chosen by the Governor. Any meeting of the MIARB must have the chairperson and two (2) other members of MIARB. 70 Can I request an early hearing before the MIARB? There is no right to obtain an early hearing by the MIARB but you can request an early hearing and give your reasons for wanting this. Do I have a right to put my case in person to MIARB? There is no right for you to be heard in person by the MIARB. However, you may request an appearance in person at your hearing. The MIARB is not prohibited from hearing from you directly. The MIARB can require you to appear before the MIARB. 71 The MIARB is required to give a report only to the Attorney-General about you: 1. within eight (8) weeks of the Custody Order being made; 2. if the Attorney General requests a report about you; 3. if it is satisfied there are special circumstances that justify a report; and 4. not less often than once a year. To perform its functions, the MIARB may require you to be examined by a psychiatrist (or other relevant expert) at any time, or for a psychiatrist (or other appropriate expert) to prepare and submit a report. 69 s 42(1)(a) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) states that the chairperson of the MIARB is also the chairperson of the Prisoners Review Board appointed under s 103(1)(a) of the Sentence Administration Act 2003 (WA), who must be a Judge or retired Judge of the District Court or the Supreme Court (s 103(2)(a) Sentence Administration Act 2003 (WA)) 70 s 42(1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 71 s 40(1)(c) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 29

Can I be legally represented at a MIARB hearing? There is no right to representation by a lawyer at your MIARB hearing. Representation by your lawyer may be limited to making written submissions. However, you may request an appearance by your lawyer on your behalf, and the MIARB is not prohibited from hearing directly from your lawyer. Can I have a copy of any document in a decision made by the MIARB? The MIARB and the Attorney-General (who may also have documents about your Custody Order) are subject to Freedom of Information legislation. This means that you can apply to the Board for the release of any documents about you held by the MIARB and/or the Attorney-General. What documents do I have a right to have? The MIARB must give you (and if you request it, to your lawyers and/or guardian(s)), a copy of all reports that it makes about you. You do not have to make a Freedom of Information application to obtain a copy of the reports; you have a right to them. 30

Commonwealth (Federal) Offences/Crimes The rules are quite different (and so this Guide does not apply) if you are charged with a Commonwealth offence/crime and the following information is a very brief outline of these differences. What is a Commonwealth offence/crime? The Criminal Code Act 1995 (Cth) makes criminal offences under Commonwealth law. Some examples of Commonwealth offences are: Centrelink (social security) fraud; serious drug offences (for example, importing illegal drugs); destroying or damaging commonwealth property; forging any commonwealth document (for example, forging passports); stealing or receiving stolen commonwealth property (for example, items in the post); offences committed by using the post (for example, using the post to make a menace or to threaten someone or by sending offensive material to someone); offences committed by using the phone (for example, making a threatening phone call or making a hoax threat or misusing the emergency service number); and offences committed by using the internet (for example, possessing controlling, supplying or obtaining child pornography). What happens if I suffered from a mental impairment at the time of committing a Commonwealth offence? If you are charged with a Commonwealth offence, you or your lawyers or the prosecution will have to prove that at the time of carrying out the conduct constituting the offence, you suffered from a mental impairment that meant that: a) you did not know the nature and quality of your conduct; or b) you did not know that your conduct was wrong (that is, you could not reason with a moderate degree of sense and composure about whether or not your conduct, as perceived by reasonable people, was wrong); or c) you were unable to control your conduct. 72 72 s 7.3(1) Criminal Code Act 1995 (Cth) 31

If you are charged with a Commonwealth offence on indictment and you are acquitted because the Court is satisfied that you suffered from a mental impairment at the time of committing the offence, the Court must order that you are detained in safe custody or in prison for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if you had been convicted of the offence charged. 73 What happens if I am found mentally unfit to stand trial? If you appear before a Court in proceedings for a Commonwealth offence on indictment and you are found unfit to stand trial, the Court must determine whether or not a case has been established that you could have committed the offence. 74 If the Court is satisfied that you could have committed the offence and you are unfit to stand trial, the Court may order that you are detained in prison or hospital for as long as is reasonably necessary to allow the Court to determine whether or not to dismiss your charge(s), grant you bail or detain you in a prison or a hospital. 75 If the Court determines there are not enough facts to support the case against you and it is inappropriate to inflict any punishment on you, the Court may dismiss the charge(s) against you and make an order that you are to be released from custody. 76 If the Court decides that there are sufficient facts to support the case against you, but does not dismiss the charge, the Court must decide whether or not, you will be well enough to stand trial within twelve (12) months after finding you unfit to stand trial. 77 The Court must consider medical reports from a qualified psychiatrist and a qualified medical practitioner before making its decision. 78 If the Court is satisfied that you are likely to become well enough to stand trial within twelve (12) months, the Court may order that you are to be detained in a hospital and that the proceedings are to resume as soon as practicable. 79 73 s 20BJ(1) Crimes Act 1914 (Cth) 74 s 20B Crimes Act 1914 (Cth) 75 s 20B(5) Crimes Act 1914 (Cth) 76 s 20BA(1) and (2) Crimes Act 1914 (Cth) 77 s 20BA(4) Crimes Act 1914 (Cth) 78 s 20BA(5) Crimes Act 1914 (Cth) 79 s 20BB(2) Crimes Act 1914 (Cth) 32

If the Court finds that you are not likely to become well enough to stand trial and that you suffer from a mental impairment, the Court may order that you are to be detained in hospital for a period not exceeding the maximum period of imprisonment that could have been imposed if you had been convicted of the offence(s) you are charged with, or the Court may release you from custody either unconditionally or subject to conditions of no more than three years application. 80 How can I be detained if I am accused of a Commonwealth offence and I suffer from a mental impairment? Sentencing Options Hospital Orders If you have been charged and convicted of a Commonwealth offence on indictment and the Court is satisfied that you: a) suffer from a mental impairment; and b) the illness contributed to the commission of the offence; and c) appropriate treatment for you is available in a hospital; and d) the proposed treatment cannot be provided to you other than as an inmate of a hospital, the Court may impose a Hospital Order. 81 In order to determine these factors, the Court requires reports from two qualified Psychiatrists. 82 At any time while the Hospital Order is in force, you or the Director of Public Prosecutions may apply to the Court to discharge the Hospital Order and make a different order. 83 Psychiatric Probation Order If you have been charged and convicted of a Commonwealth offence and the Court is satisfied that you: a) suffer from a mental impairment; and b) the illness contributed to the commission of the offence; and c) appropriate treatment is available in a hospital or other place; and d) you consent to the order being made, 80 s 20BC(2), (5) and (6) Crimes Act 1914 (Cth) 81 s 20BS(1) Crimes Act 1914 (Cth) 82 s 20BS (5) Crimes Act 1914 (Cth) 83 s 20BU(1) Crimes Act 1914 (Cth) 33

the Court may make an order that you reside in or attend a specified hospital or other place for the purpose of receiving psychiatric treatment. 84 Dismissal of Charges Where it appears to the Court of summary jurisdiction that a person suffers from mental illness or intellectual disability and it would be more appropriate to deal with them under section 20BQ of the Crimes Act 1914 (Cth), the Court may dismiss the charge/s and: a) release you into the care of a responsible person unconditionally or subject to conditions that last no longer than three years; or b) make a condition that you attend a specified place (hospital) for assessment and/or treatment lasting no longer than three years; or c) release you unconditionally. 84 s 20BV(1) Crimes Act 1914 (Cth) 34

Western Australian Council Of Official Visitors Who are the Official Visitors? The WA Council of Official Visitors is made up of people appointed by the Minister for Health to help people who are involuntary patients under the Mental Health Act 1996 (WA). Can I request an attendance by an Official Visitor if I am detained on a Custody Order? You can request a visit (or someone can do so on your behalf) from an Official Visitor only if you are detained on your Custody Order in an authorised hospital, but not if you are in a prison. What do Official Visitors do? Official Visitors can visit you at any time. During the visit, they can: inspect the place where you are detained; see any other patient who consents to being seen; enquire about your admission, detention, care, treatment and the control exercised over you; inspect your medical records or any other documents relating to you (however, you have the right to refuse the O.V. access to your medical records); and write letters on your behalf. You have the right to refuse to see an Official Visitor. How do I contact the Council of Official Visitors? Contact Address: Unit 1/18 Harvest Terrace (cnr Hay St), West Perth WA 6005 Telephone: (08) 9226 3266 Free call from landline: 1800 999 057 35

Victims Of Crime Who do I contact if I or someone else is the victim of a crime? If you are the victim of a crime and you require the Police, Ambulance or Fire brigade to attend as soon as possible you should contact 000. You should only use this number in the case of an emergency. If it is not an emergency, you can still get Police assistance at any time of the day or night on: Local callers: 131 444 Interstate callers: (08) 9351 0699 International callers: 61 8 9351 0699 How do I make a complaint and have someone charged? If you think a crime has been committed and you want the Police to investigate the matter you should contact the Police and report the incident/make a complaint. You can contact the Police by: calling or attending your local Police station. Contact details of local Police stations are available at http://www.police.wa.gov.au and clicking the Local Police tab on the left hand side; and/or calling the Police assistance line on 131 444 (local callers), 08 9351 0699 (interstate callers) or 61 8 9351 0699 (international callers) Can I be sued for committing a crime against someone as well as being charged by the police? Yes. When a crime is committed the Police bring criminal charges on behalf of the Government. They do this for a number of reasons: to punish you, to protect society and to show society that committing crimes is not acceptable behaviour. Punishments for criminal charges include fines and imprisonment. If you have to pay a fine, that money goes to the State. 36

A person who has been affected by your offending (for example, if their property has been damaged or they have suffered physical injury) that person may decide that they want to sue you (called a civil claim ). If the person is successful you may be required to pay money directly to that person (because it is the individual who has brought the claim (not the Police)) and pay for the claimant s Court costs. If you receive notification you are being sued you should seek legal advice at the earliest opportunity. If you have one, notify your enduring power of attorney, administrator and guardian. 37

Criminal Injuries Compensation Can I be compensated if I am the victim of a crime? The WA Government Criminal Injuries Compensation Scheme enables victims of crime to apply for compensation for injury or loss suffered as a result of an offence or alleged offence. You may be eligible to claim compensation under the Criminal Injuries Compensation Act 2003 (WA) if you are a: victim of an offence and are injured and/or experience financial loss as a result of the injury; or close relative of a person killed as a result of an offence (for example, a spouse, defacto, parent, grandparent, step-parent, child, step-child, or grandchild, and experience financial loss as a result of that offence). Compensation can be sought for an incident reported to the police regardless of whether or not a person has been identified, charged or convicted of the offence. The Criminal Injuries Compensation Scheme is designed to provide compensation if you suffer bodily harm, mental or nervous shock, or pregnancy resulting from an offence. Compensation may cover: pain and suffering; loss of enjoyment of life; loss of income; medical or psychological expenses; and/or other incidental expenses, such as travel for medical treatment or damage of clothing. In the case of a death, a close relative can apply for funeral expenses and loss of financial support. The assessor of Criminal Injuries Compensation is responsible for assessing each claim and making a decision regarding compensation. 38

When do I have to lodge my Criminal Injuries Compensation application? You must make your application within three years of the injury received; otherwise you will need leave by the Assessor to make your application out of time. You must report the crime to the police and obtain a report number from the police to make a CIC claim. Where can I get an application form? Criminal Injuries Compensation forms and guidelines are available for download from the Court & Tribunal Services website. Who can help me fill out a Criminal Injuries Compensation form? The Office of Criminal Injuries Compensation holds monthly forums to advise people on how to complete an application. The forums are held at: Level 13 Conference Room International House 26 St Georges Terrace PERTH WA 6000 The Victims of Crime WA have a website and source support, counselling and assist with CIC applications. Mail: Victims of Crime Reference Group PO Box 6702 EAST PERTH WA 6892 Contact: Phone: (08) 9425 2850 Freecall: 1800 818 988 Email: vocrg@justice.wa.gov.au 39

Alternatively, the Mental Health Law Centre may assist you to complete your application if there is a link between your application and a mental illness. For example your illness or your medications might make it too hard for you to complete your application. The Centre can also explore obtaining an extension of time in which to make your application if you have been unwell during the period in which you were entitled to make your CIC application. How can I contact the people in charge of Criminal Injuries Compensation? For further assistance and information about applying for criminal injuries compensation, contact: Criminal Injuries Compensation Department of the Attorney General Level 12, 26 St Georges Terrace PERTH WA 6000 Office hours 9am to 4pm Monday - Friday Note: Staff are unable to provide legal advice. Contact: Phone: (08) 9425 3250 Fax: (08) 9425 3271 Mail: GPO Box F317 PERTH WA 6841 40

Sample Letters That May Be Useful (a) Sample Freedom of Information application letter to MIARB if the request is for personal information Date Private and Confidential Mentally Impaired Accused Review Board PO Box 451 WEMBLEY WA 6913 Dear Sir/Madam FREEDOM OF INFORMATION: TITLE OF DOCUMENT Pursuant to section 11 of the Freedom of Information Act 1992 (WA), I apply for copies of/to inspect and selectively copy the documents relating to list documents Yours faithfully (sign here) Your name and address 41

(b) Sample Freedom of Information application letter to MIARB where request is for information which is not personal information. Date Private and Confidential Mentally Impaired Accused Review Board PO Box 451 WEMBLEY WA 6913 Dear Sir/Madam FREEDOM OF INFORMATION: TITLE OF DOCUMENT Pursuant to section 11 of the Freedom of Information Act 1992 (WA), I apply for copies of/to inspect and selectively copy the documents relating to list documents I enclose the $30.00 application fee. If charges associated with this application are likely to exceed $25.00, please contact me before those charges are incurred. Yours faithfully (sign here) Your name and address 42

(c) Sample internal review letter if no response or refusal of documents or documents you know are missing 85 Date Private and Confidential Mentally Impaired Accused Review Board PO Box 451 WEMBLEY WA 6913 Dear Sir/Madam FREEDOM OF INFORMATION: INTERNAL REVIEW OF DECISION On date of FOI application I applied to inspect and selectively copy the file name of file. On date of notice of decision I received notification from your Freedom of Information Officer that access to the document was refused on the grounds that Pursuant to section 39 of the Freedom of Information Act 1992, I request an internal review of this decision on the basis that list your reasons Yours faithfully (sign here) Your name and address 85 After having made an initial FOI request if you receive a letter saying something the lines of: Your request has been refused because the Prisoner Review Board is not subject to FOI requests in your reasons for internal review state: My FOI request was denied because the Prisoner Review Board is not subject to FOI requests however my request was in fact made to the Mentally Impaired Accused Review Board who is subject to FOI requests. Please provide me with the documents requested in my letter dated insert date which are as follows: list documents 43

(d) Sample external review letter if no response or refusal of documents or documents you know are missing Date Private and Confidential Office of the Information Commissioner Albert Facey House 469 Wellington Street PERTH WA 6000 Dear Commissioner COMPLAINT: DEPARTMENT OF THE ATTORNEY GENERAL On date of original FOI application I applied to the Mentally Impaired Accused Review Board/ Department of the Attorney General to inspect and selectively copy the documents relating to On date of notice of decision I received notification from MIARB/ Department of the Attorney General s Freedom of Information Officer that access to the documents was refused on the grounds that On date of application of internal review I applied for an internal review of that decision, which was unsuccessful. Pursuant to section 65 of the Freedom of Information Act 1992, I wish to lodge a complaint against MIARB/ Department of the Attorney General s decision to refuse access to the documents in question. I enclose a copy of my original application, together with copies of the initial response and the internal review decision. Yours faithfully (sign here) Your name and address 44

(e) Sample Freedom of Information application letter to the Department of Attorney General (for documents of a legal nature) if the request is for personal information Date Private and Confidential FOI Coordinator State Solictor s Office Level 14, 141 St Georges Terrace PERTH WA 6000 Dear Sir/Madam FREEDOM OF INFORMATION: TITLE OF DOCUMENT Pursuant to section 11 of the Freedom of Information Act 1992 (WA), I apply to inspect and selectively copy the documents relating to list documents Yours faithfully (sign here) Your name and address 45

(f) Sample Freedom of Information application letter to the Department of Attorney General (for documents of a legal nature where request is for information which is not personal information) Date Private and Confidential FOI Coordinator State Solictor s Office Level 14, 141 St Georges Terrace PERTH WA 6000 Dear Sir/Madam FREEDOM OF INFORMATION: TITLE OF DOCUMENT Pursuant to section 11 of the Freedom of Information Act 1992 (WA), I apply to inspect and selectively copy the documents relating to list documents I enclose the $30.00 application fee. If charges associated with this application are likely to exceed $25.00, please contact me before those charges are incurred. Yours faithfully (sign here) Your name and address 46

(g) Sample Freedom of Information application letter to the Public Advocate (for documents relating to personal guardianship) if the request is for personal information Date Private and Confidential Public Advocate Level 1, 30 Terrace Road PERTH WA 6000 Dear Sir/Madam FREEDOM OF INFORMATION: TITLE OF DOCUMENT Pursuant to section 11 of the Freedom of Information Act 1992 (WA), I apply to inspect and selectively copy the documents relating to list documents Yours faithfully (sign here) Your name and address 47

(h) Sample Freedom of Information application letter to the Public Advocate (for documents relating to personal guardianship where information requested is not personal information) Date Private and Confidential Public Advocate Level 1, 30 Terrace Road PERTH WA 6000 Dear Sir/Madam FREEDOM OF INFORMATION: TITLE OF DOCUMENT Pursuant to section 11 of the Freedom of Information Act 1992 (WA), I apply to inspect and selectively copy the documents relating to list documents I enclose the $30.00 application fee. If charges associated with this application are likely to exceed $25.00, please contact me before those charges are incurred. Yours faithfully (sign here) Your name and address 48

(i) How to make a law reform submission to the Attorney-General Date Mr Michael Mischin MLC Attorney General Level 12, Westralia Square 141 St George s Terrace PERTH WA 6000 SUBMISSIONS FOR LAW REFORM Dear Attorney General Set out: 1. The scenario which has led you to make your submission (if any) 2. State the present Legal and Policy Positions 3. State your Proposals for Reform (use headings where appropriate) This issue needs reform because Yours faithfully (sign here) Your name and address 49

Mental Health Law Centre (Wa) Inc. The Mental Health Law Centre can: give you legal advice about your rights under the MIA Act, represent you in Court, help you apply to Legal Aid (if required), make submissions on your behalf to the MIARB and Attorney General, and where the facts support it, make a judicial review application to the Supreme Court seeking leave for a review of any MIARB decision or refusal to make a decision. The Mental Health Law Centre is an independent, non-government community legal centre. The centre provides free and confidential legal services to people who are involved involuntarily in the mental health system. This includes involuntary patients detained under the Mental Health Act or accused held under the Criminal Law (Mentally Impaired Accused) Act. Aims of the Centre The Centre is dedicated to: Promoting the legal and social, rights and responsibilities of mental health consumers; and Supporting mental health consumers to participate effectively in decisions about their treatment and care, and this includes any person detained under a Hospital Order or a Custody Order. Staff at the Centre can visit hospitals, clinics and prisons. The Centre may be able to assist with other legal problems but only if the problem relates directly to mental illness. Ring us if you are not sure and if we cannot help you we will try and refer you to someone who may be able to help. 50

The Centre also has a number of publications which include: MHLC WA Annual Report MHLC WA Promotional brochure Patients Rights Guide (second edition 2011) Community Treatment Orders Psychiatric Treatment Involuntary Patients Voluntary Patients Western Australian Mental Health Support Network Communicating with a member of the public who may be unwell Electroconvulsive Therapy brochure* Section 27 and Unsound Mind Defence brochure* Unfit to Stand Trial brochure* Complaints brochure* Guardianship and Administration * * Means that the brochure is in production but not yet finalised The MHLC guides, brochures and booklets are available on our website www. mhlcwa.org.au or by contacting us for hard copies How do I contact the Centre? Office Location: 96-98 Parry Street PERTH WA 6000 Office hours are 9.00am to 4.30pm, Monday to Friday. Mail: PO Box 8466 Perth Business Centre PERTH WA 6849 Contact: Telephone: (08) 9328 8266 Free call state-wide from a landline: 1800 620 285 Website: www.mhlcwa.org.au There are also contact details for other services which may be of help to you: see the Useful Services section at the end of this guide. 51

Useful Services LEGAL HELP 1. Mental Health Law Centre (WA) Inc. Office location: 96-98 Parry Street PERTH WA 6000 Office hours are 9.00am to 4.30pm, Monday to Friday. Mail: PO Box 8466 Perth Business Centre PERTH WA 6849 Contact: Telephone: (08) 9328 8266 Free call: 1800 620 285 Email: office@mhlcwa.org.au Website: www.mhlcwa.org.au MHLC information brochures and fact sheets include: Patients Rights Guide Community Treatment Orders Psychiatric Treatment Involuntary Patients Voluntary Patients MHLC WA Annual Report MHLC WA Promotional brochure Western Australian Mental Health Support Network Communicating with a member of the public who may be unwell 52

2. Legal Aid WA Legal Aid WA is an independent statutory body that provides information, advice and other legal help, depending on your financial position, your legal problem and Legal Aid s resources. Office location: 55 St George s Terrace PERTH WA 6000 Office hours are 8.30am to 4.30pm, Monday to Friday. Contact: Infoline: 1300 650 579 TTY: 1800 241 216 Phone: (08) 9261 6222 Facsimile: (08) 9325 5430 53

Non - Government Organisations Health Consumers Council WA (Inc.) The Health Consumers Council is an independent group funded by the Health Department of Western Australia. The Council aims to ensure that health consumers contribute to the development of health services in Western Australia. The Council runs an advocacy service which can assist you in meeting your health service needs or in making a complaint. Office location: Unit 13/14 Wellington Fair 40 Lord Street EAST PERTH WA 6004 Office hours are 8.30am to 5.00pm, Monday to Friday. Mail: GPO Box C134 PERTH WA 6839 Contact: Telephone: (08) 9221 3422 Freecall: 1800 620 780 Facsimile: (08) 9221 5435 Email: info@hconc.org.au 54

Government Organisations 1. Mental Health Commission The Mental Health Commission aims to identify key outcomes and determine the range of services required across WA. It procures services, establishes benchmarks and monitors and evaluates key mental health programs and provides a directory listing of mental health services throughout WA. www.mentalhealth.wa.gov.au Enquiries can be made in writing, by telephone or by email. Office Location: Level 5 81 St Georges Terrace PERTH WA 6000 Contact: Telephone: (08) 6272 1200 Facsimile: (08) 6272 1299 Mail: GPO Box X2299 Perth Business Centre PERTH WA 6847 Contact: Health Direct Australia: 1800 022 222 Mental Health Emergency Response Line: 1300 555 788 (Metro), 1800 676 822 (Peel) Rural link: 1800 552 002 Email: ContactUs@mentalhealth.wa.gov.au 55

2. Office of the Chief Psychiatrist The Chief Psychiatrist is a senior Department of Health official appointed under the Mental Health Act 1996. Their central duties are the responsibility for the medical care and welfare of all involuntary patients, and the monitoring of standards of psychiatric care throughout WA. Complaints can be made in writing, by telephone or by fax. Mail: Dr Rowan Davidson Chief Psychiatrist Department of Health 1C, 189 Royal Street EAST PERTH WA 6004 Contact: Telephone: (08) 9222 4462 Facsimile: (08) 9222 4244 3. Health and Disability Services Complaints Office The Health and Disability Services Complaints Office is an independent State Government body established to investigate and resolve complaints about any health or disability service. Office location: Level 12 44 St Georges Terrace PERTH WA 6000 Enquiries, complaints or compliments can be made in writing, by telephone or by email Mail: GPO Box B61 PERTH WA 6838 Contact: Complaints and enquiries line: (08) 6551 7600 Administration: (08) 6551 7620 Country Freecall: 1800 813 583 Facsimile: (08) 6551 7630 Email: mail@hadsco.wa.gov.au 56

4. The Director General of Health The Chief Psychiatrist reports to the Director General of Health who is responsible for the operations of the Department of Health. Office Location: Department of Health 189 Royal Street EAST PERTH WA 6004 Mail: PO Box 8172 Perth Business Centre PERTH WA 6849 Contact: Project Director, Organisation and Governance Telephone: (08) 9222 4222 Facsimile: (08) 9489 6166 5. The Corruption and Crime Commission If the complaint is of a criminal nature then members of the public can lodge complaints about the conduct of Western Australian public officers. Office Location: 186 St George s Terrace PERTH WA 6000 Office hours are 8.30am to 5.00pm, Monday to Friday. Mail: PO Box 7667 Cloisters Square PERTH WA 6850 Contact: Complaints Assessment Unit Telephone: (08) 9215 4888 Facsimile: (08) 9215 4884 Freecall: 1800 809 000 Email: info@ccc.wa.gov.au 57

6. The Australian Health Practitioner Regulation Agency The Australian Health Practitioner Regulation Agency (AHPRA) works with 10 National Health Practitioner Boards in implementing the National Registration and Accreditation Scheme. AHPRA is the national complaints and accreditation body for the following professions (known as health practitioners ): chiropractors dental practitioners (including dentists, dental hygienists, dental prosthetists & dental therapists) medical practitioners nurses and midwives optometrists osteopaths pharmacists physiotherapists podiatrists psychologists From 1 July 2012, the following four health professions will be included in the National Scheme: Aboriginal and Torres Strait Islander health practitioners Chinese medicine practitioners medical radiation practitioners occupational therapists. 7. Council of Official Visitors The Council of Official Visitors is an independent agency established to ensure that affected persons under the Mental Health Act 1996 are aware of their rights and that those rights are being observed, and to investigate and seek to resolve complaints. Office location: Unit 1/18 Harvest Terrace (cnr Hay St) WEST PERTH WA 6005 Office hours are 8:30am to 4:30pm, Monday to Friday 58

Mail: (no stamp required) Reply Paid 61349 Council of Official Visitors Unit 1/18 Harvest Terrace (cnr Hay St) WEST PERTH 6005 Contact: Telephone: (08) 9226 3266 Freecall: 1800 999 057 Email: info@coov.org 8. The Royal Australian and New Zealand College of Psychiatrists The Royal Australian College of Psychiatrists is the principal organisation providing accreditation and representation for the medical specialty of psychiatry in Australia and New Zealand. Office location: Graylands Hospital Brockway Road MOUNT CLAREMONT WA 6010 Office hours are 9.00am to 5.00pm, Monday to Friday Mail: RANZCP Western Australian Branch Graylands Hospital Private Bag 1 CLAREMONT WA 6910 Contact: Telephone: (08) 9284 2138 Toll free: 1800 337 448 (for Australian residents) Facsimile: (08) 9347 6560 Email: ranzcp.wa@ranzcp.org 59

9. State Ombudsman The Ombudsman investigates and resolves complaints with public sector agencies and statutory authorities. Before contacting the Ombudsman, you generally need to try to resolve issues with the agency involved. Office location: Level 2, Albert Facey House 469 Wellington Street PERTH WA 6000 Office hours are 8.30am to 5.00pm, Monday to Friday Mail: Ombudsman Western Australia PO Box Z5386 St George s Terrace PERTH WA 6831 Contact: Telephone: (08) 9220 7555 Freecall: 1800 117 000 Facsimile: (08) 9325 1107 Email: mail@ombudsman.wa.gov.au 10. Corrective Services Complaints (Prisons) The Department of Corrective Services has an area that deals with all comments and feedback about its services from offenders, staff and members of the public. It is called ACCESS (Administration of Complaints Compliments and Suggestions). Complaints, Compliments or Suggestions can be lodged by: Online: see www.correctiveservices.wa.gov.au/utilities/contact-us Mail: Private and Confidential ACCESS Manager, Complaints Administration Department of Corrective Services PO Box Z5124 St George s Terrace PERTH WA 6831 60

Contact: Freecall: 1300 306 922 Facsimile: (08) 9264 1748 Email: Complaints to: complaints.access@correctiveservices.wa.gov.au Compliments to: compliments.access@correctiveservices.wa.gov.au Suggestions to: suggestions.access@correctiveservices.wa.gov.au 11. The Office of the Inspector of Custodial Service The role of the Office is to bring independent external scrutiny to the standards and operational practices relating to custodial services within the state. Office Location Level 5, Albert Facey House 469 Wellington Street PERTH WA 6000 Contact: Telephone: (08) 6551 4200 Facsimile: (08) 6551 4216 Email: corporate@custodialinspector.wa.gov.au 12. State Attorney-General The Department of the Attorney-General s (DotAG) role is to provide high quality and accessible justice, legal, registry, guardianship and trustee services to meet the needs of the community and the Western Australian Government. The Department of the Attorney General Western Australia is responsible to the Attorney General, the Hon Michael Mischin MLC. Office location: Level 12, Westralia Square 141 St Georges Terrace PERTH WA 6000 Mail: Department of Attorney General GPO Box F317 PERTH WA 6841 61

Contact: Telephone: (08) 9222 8800 Fax: (08) 9222 8801 Email: minister.mischin@dpc.wa.gov.au 13. Commonwealth Attorney-General The Australian Government Attorney-General s Department serves the people of Australia by providing essential expert support to the Government in the maintenance and improvement of Australia s system of law and justice and its national security and emergency management systems. The Department is the central policy and coordinating element of the Attorney- General s portfolio for which the Attorney-General, Minister for Home Affairs and Minister for Emergency Management are responsible. Mail: Attorney-General s Department Central Office 3-5 National Circuit BARTON ACT 2600 Contact: Telephone: (02) 6141 6666 International phone calls: + 61 2 6141 6666 Switchboard hours: between 8.00 am and 6.00 pm AEST, Monday to Friday. Email: enquiries@ag.gov.au 62

Services For People With Hearing Or Speech Impairments You can contact the Attorney General through the National Relay Service. TTY users: phone 133 677 then ask for 02 6141 6666. Speak and Listen users: phone 1300 555 727 then ask for 02 6141 6666. Internet relay users: connect to the National Relay Service then ask for 02 6141 6666. How To Make A Complaint (Notification) About A Health Practitioner If you want to make a complaint about the conduct, health or performance of a health practitioner you can make a make a notification (complaint) to AHPRA who will investigate the complaint. You can make a complaint in one of two ways: 1. You can make a notification about a registered health professional or student by completing an AHPRA Notification Form. You can download this form by visiting the AHPRA website at http://www.ahpra.gov.au and clicking on the Notifications and Outcomes tab at the top of the screen, then clicking on the Make a Notification link. Once you have completed the form mail it to the WA AHPRA office at: AHPRA G.P.O. Box 9958 Perth WA 6001 2. If you have concerns regarding completing the form, need assistance or an interpreter, phone AHPRA on 1300 419 495 and ask to speak to a Notifications Officer in Western Australia. Office Location: Level 7, 111 Bourke Street Melbourne VIC 3000 63

Mail: AHPRA G.P.O. Box 9958 Melbourne VIC 3001 Contact: Telephone from within Australia: 1300 419 495 between 09:00am 05:00pm Local Time Telephone from overseas +61 3 8708 9001 between 09:00am 05:00pm Australian Eastern Standard Time Website: http://www.ahpra.gov.au 64

Relevant Laws These include: Acts Bail Act 1982 (WA) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Criminal Code Act Compilation Act 1913 (WA) Criminal Investigation (Identifying People) Act 2002 (WA) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (MIARB Board) Criminal Procedure Act 2004 (WA) Freedom of Information Act 1992 (WA) Guardianship and Administration Act 1990 (WA) Health Practitioner Regulation National Law (WA) Act 2010 Mental Health Act 1996 (WA) Sentence Administration Act 2003 (WA) (Prisoners Review Board) Regulations Bail Regulations 1988 (WA) Criminal Investigation (Identifying People) Regulations 2002 (WA) Criminal Law (Mentally Impaired Accused) Regulations 1997 (WA) Criminal Procedure Regulations 2005 (WA) Freedom of Information Regulations 1993 (WA) Guardianship and Administration Regulations 2005 (WA) Mental Health Regulations 1997 (WA) Sentence Administration Regulations 2003 (WA) You can find these Acts and Regulations at www.slp.wa.gov.au, go to Western Australian Legislation Databases, click on Acts or Regulations in force, and then you can browse the Acts or Regulations by title by clicking on the letter which each Act or Regulations begins with. 65

Published with the kind assistantance of THE MENTAL HEALTH LAW CENTRE (WA) INC. JUSTICE, FAIRNESS, EQUITY FOR PEOPLE WITH A MENTAL ILLNESS Mail: PO Box 8466, Perth WA 6849 Telephone: (08) 9328 8266 Free call (from Landline only): 1800 620 285 Facsimile: (08) 9328 8577 Web: www.mhlcwa.org.au Email: office@mhlcwa.org.au