[Marxism] Current review of Western Australian Mental Health Act

Graham Milner gkmilner at bigpond.com
Thu Feb 7 17:03:23 MST 2013

Dear Friends,
                   Attached is an email message written by me to the editor of the only daily newspaper in Western Australia, 'The West Australian', concerning the draft WA Mental Health bill, which was tabled in State parliament late last year and is presently under public scrutiny.   State parliament will begin to deliberate over the draft bill at the beginning of next month.   The editors of 'The West' did not publish my message, and a query to the paper's Chief of Staff drew no response.

Further details and comment about the proposed Mental Health bill in WA may be found on the Perth Indymedia site: http://www.indymedia.org.au/2013/02/06stop-barnetts-thought-police-block-wa-new-mental-health-bill 


Graham Milner

TO: The Editor,
'The West Australian',
Osborne Park, WA

January 30, 2013

Dear Sir/Madam,
                        I have been greatly impressed by the efforts in recent times of 'The West Australian' to draw the attention of the WA public to the urgent need for reform in the WA mental health sector.   I have read two front page stories in the last few months in 'The West' detailing major lapses in the quality of care in the State's psychiatric institutions.  As readers will probably already be aware, the currently-operating Mental Health Act in WA is under review, and the draft of a new Act has been tabled in State parliament.   The draft is subject to public scrutiny and comment for another month or so, and then as I understand it deliberations by State legislators concerning the new Act will commence.

Earlier today I drafted a message to Amnesty International, through this human rights organisation's website, drawing their attention to the situation in Western Australia regarding the State's Mental Health Act.   I pointed out to Amnesty that the provisions of the currently operative Act in WA do not allow an independent judicial review of the status of someone detained involuntarily in a mental health institution in this State.   The 'Mental Health Review Board', through which appeals against involuntary detention in WA mental hospitals and other institutions are dealt with, is an internal, departmental agency, and is not separate from the Mental Health Department, as I understand the situation.  If an incarcerated person wishes to appeal against their involuntary detention in a mental health institution in this State, the final 'court of appeal' as I understand it is the 'Chief Psychiatrist', whom I believe is based at Graylands Hospital - WA's major psychiatric institution.

I have recently read accounts claiming that Western Australia is one of the few jurisdictions, and possibly the only jurisdiction, in the world where, if one is locked up in a psychiatric hospital, there is no provision under the existing law for an independent judicial review of such an incarceration.   In the Mental Health Act that was operative in WA prior to the current one, a provision did exist for an appeal to the WA Supreme Court.   I do not know whether this restricted avenue for challenging the state's power in WA to deprive someone of their liberty, without that person having the opportunity to present their case to an impartial, independent tribunal or court, was ever utilised.  The potential cost, in terms of legal representation and court fees, etc., to a likely-impecunious 'patient', detained against their will, would doubtless have deterred the vast majority of those caught in the toils of the psychiatric health system in WA from attempting to achieve justice through that means..

The draft of the new Act before State parliament does not address the urgent need for reform of the existing law to include the right of those locked up against their will in psychiatric institutions in WA to have access to an independent judicial review of the validity of such an incarceration.  As I mentioned in the message I wrote to Amnesty International earlier today, Australia is a signatory to the United Nations Charter of Human Rights.   Sections of that charter clearly and specifically forbid any signatory nation to tolerate or sanction the practice of detention without trial within its jurisdiction.   

The doctrine of the separation of powers, which is one of the foundational principles of democratic government, requires that the actions of the executive wing of the state are subject to review by an independent judiciary.  Anyone, anywhere in the world, who is deprived of their liberty by the state is entitled to a review of their circumstances by an independent tribunal or court.    The lower, magistrates' courts in WA would be quite satisfactory for this purpose in my view.   As I understand it, lawyers are not as a rule allowed to participate in magistrates' courts hearings, and court fees are minimal.   Thus, expense would not be a deterrant under such circumstances for someone who wishes to challenge in the courts in WA an involuntary detention in a psychiatric institution.

A major problem does arise for those wishing to appeal to the courts against an involuntary detention in psychiatric institutions in WA, and that problem is the forcible administration on patients in these institutions of psychotropic and 'anti-psychotic' drugs, which have severe side-effects that involve among other symptoms impairment of intellectual functioning.   Clearly, the regime that presently exists in WA mental health facilities of the forcible administration of such drugs onto patients might well compromise the capacity of anyone who is locked up involuntarily and who faces a court hearing to present their case.    In my view the eventuation of such a state of affairs could be circumvented by the insertion of a section or clause in the new Act authorising any person incarcerated against their will in a WA psychiatric institution, and who wishes to appeal against that incarceration, to request, perhaps a few weeks before the set date of the hearing in the magistrates' court, an order from the court requiring the authorities in the psychiatric institution concerned to cease the forcible administration of medications on that patient during the period leading up to the hearing..

Yours sincerely,

Graham Milner

More information about the Marxism mailing list