Download 1. Synthesis of Matters Pertaining to Part 1 - Preliminary

1. Synthesis of Matters Pertaining to Part 1 Preliminary
1.1 This chapter concerns matters considered by the review, pertaining to sections 1-6 of the Mental
Health Act 1996 (WA Act), known as Part 1 – Preliminary. This part provides a short title for the
Act; specifies its commencement; provides definitions of important terms; gives a meaning of
mental illness; states the objects of the Act; and states the objectives of persons performing certain
functions.
REPEAL OF “SENIOR MENTAL HEALTH PRACTITIONER”
1.2 According to the WA Act, a senior mental health practitioner is distinguished from a (non-senior)
mental health practitioner by virtue of at least five as opposed to three years experience in the
treatment/management of persons who have mental illness (sections 3 and 19 of the WA Act refer).
This time-based distinction is arbitrary and the review heard evidence that the approach taken causes
problems by prohibiting the best use of clinically experienced and competent staff who do not have
five years of experience. The distinction appears to produce little or no benefit and the Stakeholder
Committee supported a change.
Proposal 1.1
The Way Forward: Repeal of “Senior Mental Health Practitioner”
The review is likely to recommend the repeal of the definition of “senior mental health practitioner”
from section 3 of the WA Act, with consequential amendments changing senior mental health
practitioner to simply mental health practitioner in:
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subsection 30(3), Referral of voluntary patient in certain circumstances;
section 118, Seclusion must be authorized;
section 119, Giving of authorization;
section 122, Mechanical body restraint must be authorized;
section 123, Giving of authorization; and
subsection 159(2), Affected person to be given copy of order.
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ADDITIONAL DEFINITIONS
1.3 The review received a number of submissions from mental health workers and non-government
organizations, which implored that the WA Act be reformed to provide definitions of ‘carer’; ‘drug
abuse’, ‘risk’, ‘time frame’, ‘voluntary patient’, ‘dementia’, ‘child’ and ‘mature minor’. The review
agrees with a number of these proposals and has identified some additional needs.
Proposal 1.2
The Way Forward: Additional Definitions
The review is likely to recommend the addition of definitions of the following terms to section 3 of
the WA Act:
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“carer”;
“voluntary patient”;
“dementia”;
“child”;
“in-patient”;
“mature minor”;
“mental health service”;
“notifiable incident”;
“treatment”; and
“youth advocate”.
In some instances, the definition will have the meaning given in a specified section of the WA Act.
MEANING OF MENTAL ILLNESS
1.4 Subsection 4(1) of the MH Act defines mental illness as “a disturbance of thought, mood, volition,
perception, orientation or memory that impairs judgment or behaviour to a significant extent.” This
differs from the approach taken in the Australian Model Mental Health Legislation (MMHL) in
which mental illness means “a condition which seriously impairs, either temporarily or permanently,
the mental functioning of a person in one or more of the areas of thought, mood, volition,
perception, orientation or memory and is characterized by the presence of at least one of the
following symptoms – (a) delusions; (b) hallucinations; (c) serious disorder of the stream of thought;
(d) serious disorder of thought form; (e) serious disturbance of mood; or by sustained or repeated
irrational behaviour which indicates the presence of at least one of those symptoms” [MMHL
subsection 9(5)]. Moreover, the determination that a person has a mental illness must be made in
accordance with internationally accepted medical standards [MMHL subsection 9(6)]. The
Northern Territory Mental Health and Related Services Act 2002 (NT Act) essentially follows this
model, but goes further in requiring concordance with the current edition of the World Health
Organization International Classification of Mental and Behavioural Disorders, Clinical
Descriptions and Diagnostic Guidelines of the American Psychiatric Association Diagnostic and
Statistical Manual of Mental Disorders (NT Act section 6 refers). Both the MMHL and the NT Act
go on to define a separate entity of mental disturbance/disorder, which may also become part of the
grounds for an involuntary admission in a person who does not meet the more stringent criteria for
mental illness per se. In the Victorian Mental Health Act 1986 (Vic Act), however, mental illness is
defined simply as ‘a medical condition that is characterized by a significant disturbance of thought,
mood, perception or memory’ [Vic Act subsection 8(1A) refers], which is more in keeping with the
WA Act.
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1.5 It was the opinion of some members of the Stakeholder Committee that the meaning of mental
illness given in section 4 of the WA Act was very broad and that there were less exclusions specified
in subsection 4(2) in comparison with other jurisdictions. Moreover, UN Principle 4 on the
Determination of Mental Illness (see appendix 1) was not explicitly identifiable in the existing
statute. Additional exclusions from sufficient grounds for mental illness recommended by some
Committee members were if a person is involved in family conflict; if a person has previously been
treated for mental illness and subject to involuntary treatment or assessment; and acquired brain
damage.
Proposal 1.3
The Way Forward: Meaning of Mental Illness
The Review is likely to recommend a revision to the meaning of mental illness in section 4 of the
WA Act, which is consistent with UN Principle 4 and adopts some, but not all, facets of the
approach taken in the MMHL and the NH Act. The reasons are that use of internationally accepted
standards should take precedence over a legislated list of specific symptoms and excluded medical
conditions, and because of a preference to avoid the complexity of a separate entity of mental
disturbance. Specifically:
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add a new subsection after subsection 4(1), which requires that a determination that a person
has a mental illness shall only be made in accordance with internationally accepted standards
approved by the Chief Psychiatrist; and
amend subsection 4(2) to add exclusions from sufficient grounds for a person who – engages,
or refuses or fails to engage (cf holds, which is covered already), in a particular religious or
cultural activity; has, or has not, a particular political, economic or social status; is, or is not, a
member of a particular cultural, racial or religious group; is involved, or has been involved, in
family or professional conflict; has been treated for mental illness or has been detained in a
hospital that provides treatment of mental illness.
OBJECTS OF THE ACT
1.6 The existing objects in section 5 of the WA Act are (a) to ensure that persons having a mental illness
receive the best care and treatment with the least restriction of their freedom and the least
interference with their rights and dignity; (b) to ensure the proper protection of patients as well as
the public; and (c) to minimize the adverse effects of mental illness on family life. These objects are
much less detailed than those appearing in the MMHL (section 1 refers) or the NT Act (section 3
refers), but are not unlike the relevant provisions in the Vic Act [subsection 8(1) refers].
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1.7 The Stakeholder Committee gave general support for an expansion of the objects in the WA Act, to
include references to: application of the principles of natural justice; use of least restrictive options;
rehabilitation as well as treatment; respect for the rights of mentally impaired defendant (MID)
patients; and recognition of the needs of indigenous patients. An acknowledgment of the interests of
victims in the objects was controversial. In addition, the review has identified sufficient grounds to
consider the inclusion of an objects clause pertaining to the interests of culturally and linguistically
diverse (CALD) groups and the interests of carers.
Proposal 1.4
The Way Forward: Objects and Principles
The review is likely to recommend the replacement of the objects of the WA Act in section 5, with
two new sections: one being a new set of objects modeled on section 3 of the NT Act; and the
other being a set of fundamental principles modeled on sections 9-13 of the NT Act, including,
notably, the sections containing principles relating to Aborigines and Torres Strait Islanders
(section 11 of the NT Act) and the rights of carers (section 12 of the NT Act). These model
sections of NT legislation are lengthy and are reproduced in Appendix 2 to this synthesis. The
reason is that many concerns raised in the course of the review will be addressed by the adoption
of objects and principles modeled on the NT Act, with appropriate minor modifications to achieve
compatibility with the body of the WA Act.
A matter still under active consideration is whether or not to include specific reference to the UN
Principles, National Mental Health Statement of Rights and Responsibilities and the National
Mental Health Plan in the objects of the WA Act, as appears in section 3(b) of the NT Act or section
1(b) of the MMHL. This review aims to render the WA Act generally consistent with the UN
Principles as they now stand. However, looking into the future, it may be unwise to commit the
State to guidelines published by one or more external parties. Such references also have potential
to cause confusion due to unforeseen technical inconsistencies between the objects and body of
the Act. They might also serve to frustrate the administration of the Act through argument over
legal technicalities, because interpretation would then depend not only on interpretation of the Act
itself, but also on interpretation of the separate documents to which the Act would refer. The
review’s preference is to avoid reforms that might invite increased litigation over technicalities.
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