Mental Health Law in Western Australia Introduction People affected by mental illness and impairments are among the most over-represented, vulnerable and disadvantaged members of the community in relation to the criminal justice system. These people are entitled to rights and services that are constantly being denied, due to widespread stigmatisation and discrimination associated with mental illnesses. The disproportionate interaction of people affected by mental illnesses with the justice system is adversely affecting their prospects for fair treatments, costing the community as a whole. This paper will analyse the effectiveness of current laws applying to people affected by mental illnesses, as well as providing a history of mental health …show more content…
laws dating back to 1970. History of Mental Health Laws A mental illness is defined in the MIA Act as “an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli”.
This definition is inconsistent with the Mental Health Act 1996. This creates a contradiction within the MIA Act, as s 8 refers to the above definition while s 5(2) refers to the definition provided in the Mental Health Act. Despite the discrepancies within the act, both acts recognise the difference between a mental impairment and a mental illness. A mental illness is susceptible to treatment, while a mental impairment is permanent, such as an intellectual impairment. The MIA act defines mental impairment as “intellectual disability, mental illness, brain damage or senility”. The inconsistencies of the different definitions of mental illness and impairment, rather than being clear and concise, may leave itself vulnerable to a difference in …show more content…
interpretation. Since 1970, there have been many milestones for people suffering from mental illnesses in relation to their interactions with the criminal justice system. These milestones include the passing of legislation such as The Mental Health Act 1962. There has also been a growing societal change towards mentally impaired people that have aided to the change in legislation. Other key legislations that have come into place in WA include the Criminal Law (Mentally Impaired Accused) Act 1996, the Mental Health Act 1996 and the Mental Health Bill 2013. These mental health laws provide a range of treatments based on a person’s need for treatment and the risk they pose for themselves and other members of the community. These laws help to ensure the care and treatment of mentally impaired or disabled people in general, as well as their interaction with our legal system. The kinds of behaviours that will bring a person into conflict with the law are more prominent in people suffering from a mental illness. Illegal acts such as assault, criminal trespass, public intoxication, disorderly conduct and disturbing the peace, are often associated with people affected by mental illnesses, ultimately criminalising the mentally ill or impaired. It is stated in a study that 1 in 3 people in prison have a history of mental health issues. Current Mental health laws 1. Criminal Law (Mentally Impaired Accused) Act 1996 The purpose of the MIA Act recognizes that not all people who come into contact with the criminal justice system are 'mentally fit' to stand trial. It was enacted in conjunction with the Mental Health Act 1996 and the Mental Health (Consequential Provisions) Act 1996 to provide the collective goals of ‘modernizing’ and ‘improving’ the laws associated with the treatment and care of people suffering from mental illnesses or impairments. This act aims to enable extrajudicial processes for the care and treatment of people who are unable to partake in the usual processes of our criminal justice system due to severe mental illness or impairment. The legislation makes recognition of people with a disability or mental illness and are unfit to stand trial and those found not guilty due to unsound mind. Through an in-depth analysis of the Act from a range of different sources, several criticisms are made. Many stakeholders suggest that the Act itself disadvantages the people it aims to protect. A common criticism is the detrimental effects of imprisoning an accused affected by a mental illness. As a result of being mentally unfit to stand trial, or being found not guilty on account of unsoundness mind, the MIA Act authorises people to be incarcerated. It is criticised that the MIA Act lacks the crucial safeguards to ensure rights are protected at all stages of the criminal justice process. Risk factors associated with increased incidences of mental health problems and disorders include unemployment, experiences of sexual and physical abuse, low socio-economic status and poor physical health. Similarly, people with mental disorders are incredibly vulnerable to these risks. It is therefore clear how important these safeguards are in ensuring the protection of mentally ill or impaired during their interaction with the criminal justice system, which the MIA Act is criticised for lacking. It is stated in the MIA Act that “A mentally impaired accused is to be detained in an authorised hospital, a declared place, a detention centre or a prison. If the accused has a treatable illness, it will be appropriate for them to be admitted into hospital. However, for people suffering from a mental impairment that is not susceptible to treatment, no places have yet been declared, making the only available option being sentenced to prison. Many studies suggest that incarceration has a detrimental impact on mental health. Similarly, it is suggested that fundamental psychiatric needs are unlikely to be met in a prison environment. The MIA Act also displays inconsistencies with The United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. Australia’s international obligations do not permit the detaining of mentally ill or impaired people when a less restrictive alternative is possible. The reality of the MIA Act in Western Australia is that many mentally ill or impaired people are detained in prisons due to a lack of declared places and minimal available hospital beds. In some cases, these people are denied their fundamental right to appeal or parole. 2. Mental Health Act 1996 (WA) The Mental Health Act 1996 provides for the “treatment, care and protection of involuntary patients”. This act replaced the Mental Health 1962 Act and incorporated into legislation bodies such as an independent tribunal to review patients’ involuntary status and the Mental Health Review Board. It also introduced a new section of the act committed to patient’s rights, and less restrictive treatment options to facilitate fundamental treatment external to a hospital, such as Community Treatment Orders. The Act provides a set of legal rights to protect people affected by mental illnesses in WA. Criticisms are made of this act when put into practice. A review of the MH Act has provided several reforms to the bill and will be replaced by the Mental Health Act 2014, no earlier than the end of 2015. Reforms of the act include the advancement of human rights for people with mental illnesses, greater quality and flexibility of treatment and care, as well as ‘strengthening’ and ‘streamlining’ of administration of the act. A way of advancing human rights could be by greater protections against misuse of the act and improving the understanding of the meaning of mental illness through reference to international standards. By refining the meaning of mental illness and impairments in the act, it could result in a collective understanding of the terms and not be so open to interpretation. Another way of improving rights for the mentally ill could be by ensuring suitable conditions for the use of rational force during the treatment of patients as well as an increased penalty for mistreatment of them. An approach to improving the quality and flexibility of the treatment and care of individuals could be by more attention to physical health and improved access to services in remote areas. In order to strengthen the administration of the MH Act, it is said that there needs to be more definition of basic terms as well as refining the clarity of the fundamental principles and values that encompass the act. The new amended act will aim to provide increased protection and new rights for involuntary patients, as well as improving the recovery of people suffering from mental health issues. Countless changes have been made to the act to improve ‘procedural fairness for patients, accountability of clinicians, and inclusion of people who are important supports in patients’ lives.’ After a thorough analysis of the MH Act 1996, many practical errors are clear. There appears to be many difficulties with the application of the Act, ultimately causing widespread discrimination against people suffering from mental illnesses or impairments. The main objectives of the act are therefore skewed, desperately requiring the act to be amended. Once the MH Act 2014 commences, many of the limitations for the mentally ill or impaired can be resolved. 3. The Mental Health Bill 2013 Through an exploration into the bill, problems with the application of the Act can be determined.
The MH bill 2013 has been passed by parliament in 2014 and will replace the 1996 Act. However, despite many improvements that are made to the act there are still deficiencies that arise. One of the major issues of the act is that it widens the scope for people to be considered involuntary patients. The UN principle 16 states that a person is to only be considered an involuntary patient if a qualified mental health practitioner authorises that the person is likely to cause harm to themself or others, or failure to admit the individual will result in a serious deterioration in his or her condition. Over the past 30 years, involuntary treatment has been one of the most consistently debated issues in mental health law. There have been substantial concerns that by widening the scope of people to be considered involuntary patients, it could cause a serious risk to the reputation of the person or cause irreparable damage to significant personal
relationships. Conclusion Through an exploration into the history of Australian mental health laws, it is evident how societal values towards people suffering from mental illnesses have evolved. While society and the criminal justice system have come a long way from before the 1970’s, major limitations still exist. Mentally impaired people still face significant limitations at all stages of the criminal justice system, ultimately affecting their chances of non-discriminatory treatment. This paper will determine their effectiveness by analysing the current mental health laws,
The Mental capacity Act 2005 is a very important piece of legislation, because it makes a real difference to the lives of people who may lack mental capacity. The act will empower patients to make their own decision; it will also protect people with lack capacity by providing them with a flexible framework that places individuals at the very heart of the decision-making process.it will make sure that the patients with lack of capacity participate as much as possible in any decisions made on their behalf, and that these are made in their best interests. It also allows people to plan ahead for a time in the future when they might lack the capacity, for any number of reasons, to make decisions for themselves. The Act covers a wide range of decisions and circumstances; the act is supported by the practical guidance, and the Code of Practice which provides information about how the act works in practice. (http://www.direct.gov.uk 2007)
The Mental Capacity Act 2005 states that in order to protect the rights of individuals who don’t have the capacity to make their own decisions they an independent Mental capacity Advocate is put in place to learn as much as possible about the individuals and act in their best interests.
The BBC documentary, Mental: A History of the Madhouse, delves into Britain’s mental asylums and explores not only the life of the patients in these asylums, but also explains some of the treatments used on such patients (from the early 1950s to the late 1990s). The attitudes held against mental illness and those afflicted by it during the time were those of good intentions, although the vast majority of treatments and aid being carried out against the patients were anything but “good”. In 1948, mental health began to be included in the NHS (National Health Service) as an actual medical condition, this helped to bring mental disabilities under the umbrella of equality with all other medical conditions; however, asylums not only housed people
Rock, M. (2001). Emerging issues with mentally ill offenders: Casues and social consequences. Administration and Policy in Mental Health., 165-180.
In order to protect the patients’ identity and privacy, and in accordance with the NMC Code (2015) and Data Protection Act (DPA) 1998, anonymity and confidentiality will be maintained using a pseudonym for the case study. Jane, a 47-year-old female, detained on Section 3 of MHA (DH, 1983) within an Acute Inpatient Ward. As defined in the Mental Health Act Code of Conduct (DH, 2007) Section 3 of the MHA allows a patient to be detained for treatment within a hospital setting for a period of up to 6 months to allow for treatment programme (DH, 1983). Jane’s health had deteriorated over a period of seven days, after she had stopped taking her anti-psychotic medication weeks ago, resulting in the current episode of manic behaviour.
Seltzer, T. (2005). Mental Health Courts: A Misguided Attempt to Address the Criminal Justice System's Unfair Treatment of People with Mental Illnesses. Psychology Public Policy and Law, 11(4), 570-586. doi:10.1037/1076-8971.11.4.570
The NSW mental health act sanctions involuntary assessment of people who are suspected to be mentally unwell. Critics claim that involuntary assessment and treatment under the mental health act is immoral. They maintain it to be in contradiction of the basic human rights and implicate infringement of civil independence. This argument gains further strength if after a comprehensive evaluation the individual is not found to be mentally unwell or necessitating to be involuntary managed. Cutler, Smith, Wand, Green, Dinh and Gribble (2013, pp. 544-549) in their research at Prince Alfred Hospital emergency department found that only 27% of the people scheduled by ambulance officers under the NSW mental health act ultimately ended up with an involuntary psychiatric admission [1]. Thus, certification of being “mentally ill” was a poor predictor of involuntary psychiatric admissions. This leads to a serious query whether the involuntar...
What is definitive is that the MHPA could use some improvement. Besides according to Dlugacz et al. (2004) a business or agency should always strive for better (Dlugacz et al., 2004). The Department of Labor (DOL) identified several problems with the MHPA, that were referred to as violations. These violations can be thought of as areas that MHPA is not in compliance. Naturally, it seems that the MHPA falls short on the quality assurance end of the spectrum. Therefore, this writer is suggesting for quality assurance measures to be put into place in order to improve consistency. Consistency is required in the following areas: to minimize the stringent restrictive quantitative treatment limitations (QTL), lower annual dollar limits on benefits, inadequate disclosures, insufficient benefits, and higher financial requirements (DOL, n. d.). With quality assurance measures in place, managers can make a conscious effort to include mandatory in services that employees must attend to/training as part of their continued education, as for the community more awareness needs to be drawn to mental illness, while also sharing with the community all the services available under the MHPA. Perhaps the combinations of both actions can lead to a more successful and utilized MHPA. While also normalizing mental illness and substance use
The aim of this assignment is to examine the Mental Capacity Act evaluating its effect on introducing safeguard for deprivation of liberty, both for patients and individuals lacking capacity in hospital and residents of care homes.
The Criminal Code is an example of legislation that is more aimed at protecting the public and obtaining justice, rather than ensuring psychiatric offenders are treated. That being said, mental health does not only become a legal problem if a mentally ill person enters the justice system. Law plays a large role in access to treatment in a general sense. In British Columbia (BC), the main legislation in this area is the Mental Health Act (MHA). It allows for the same treatment that is used in most jurisdictions – voluntary or involuntary treatment. The mental health legislation and the criminal legislation have different underlying purposes. In McCorkell v Director of Riverview Hospital, Justice Donald explained that the objects and purposes
The mental illness is a condition that disrupts a person’s thinking, feeling, mood and ability to relate to others and daily functioning. Mental illness includes major depression, bipolar disorder, obsessive compulsive disorder, panic character and poor upbringing. The mental illness can affect any person of any age, race, religion or income. People with mental illness they experience many different problems in their life like for example prejudice and discrimination are one of the problems they face in every aspect of their lives. Graham suggest that attitudes that most people hold towards those labelled with mental illness are, major barriers to does with people with mental illness because they can’t lead their lives in the away they want, they are hold down jobs they are qualified for, they live in ordinary houses, to engage in social relations and to enjoy their basic rights as citizens it’s very difficult. Sometimes the family attitude also have a very important influence on the person with mental illness, because family are the ones that should be on our sides and protect us and support us from harm, but sometimes people with mental illness they don’t have the protection from their family they are...
Mental health stigma is a complex issue that resonates within society, although there have been great investments over past 2 decades to help with the difficulty of mental illness majority of the diagnosed patients fear under going treatment for psychological illnesses as it reduces self-confidence and deprives individuals of social opportunities and acceptance through the undesirable and derogatory connotations that are ascribed with the label ‘mentally ill’.
Mental health legislation is basically protecting rights of individuals with mental disabilities by protecting their human rights, autonomy and freedom (Kerbage,Chammay,Richa ,2015). In addition to access to mental health services in community setting (Kerbage,Chammay , Richa, 2015) that are currently do not exist in Lebanon. In order to examine the effectiveness of mental health legislation one should compare it to international guidelines to ensure a stronger and more effective means of protecting rights of people with mental disorders. In 2006 the United Nations General assembly conducted CRPD (convention on the rights of person with disabilities) legal binding UN document which is based on Mental Illness principles (MI) and declaration of Madrid by World Psychiatric Association as an international guideline (Kerbage,Chammay ,Richa ,2015).
Scottish Government (2004) The New Mental Health Act – What’s It All About? A Short Introduction. Available online at www.scotland.gov.uk/publications/2004/01/18753/31686, first accessed 28/04/2011
In conclusion the law and psychology need to do a better job working together so we can make the best outcome for everyone. Being mentally ill is not a bad thing, it is just a bad thing when you cannot control your urges: “It is a disorder that impairs the human mind and prevents distinguishing between actions that are right and wrong…They are brain disorders resulting in a diminishined capacity for coping with the demands of life” (Torry 255). By coming together we can make progress and make a success out of making stricter guildlines, treating mentally ill before crime happens, and placing them into institutions, not prisons. This success can be an overall positive thing for the individual and society.