Western Australia New Draft of Mental Health Act
Children able to consent to sterilisation and 12 year olds to consent to psychosurgery and electroshock without any parental consent in W.A.
The W.A. Mental Health Act is under review and the above are included in proposals of the draft bill.
Please take action so that children are protected and parental rights are upheld.
Feedback closes on the 9th March 2012.
CHILDREN OF ANY AGE TO CONSENT TO STERILISATION: If a psychiatrist decides that a child (under 18 years) has sufficient maturity, he or she will be able to consent to sterilisation. Parental consent will not be needed. Only after the sterilisation procedure has been performed does it have to be reported and then only to the Chief Psychiatrist. [Pages: 135 & 136 of the Draft Mental Health Bill 2011]
12 YEAR OLDS WILL BE ABLE TO CONSENT TO PSYCHOSURGERY: Psychosurgery is banned in N.S.W. and the N.T. for persons of any age because it destroys healthy brain tissue and is dangerous and potentially deadly.
Psychosurgery can involve surgical cutting or burning of the brain or electrodes can be permanently placed in the brain sending electrical current through the brain. It can cause memory loss, irreversible brain damage, delirium, bleeding in the brain, suicide and post-operative death. Despite this, the draft bill is proposing to allow a 12-yearold child, if considered to be sufficiently mature by a psychiatrist, to consent to psychosurgery. Parental consent will not be needed. Once the child has consented it goes before the State Mental Health Tribunal for approval.
Again, parental consent is not needed for the Mental Health Tribunal to approve the psychosurgery.
The Tribunal is only required to “consider” the parent’s or guardian’s views when they approve the psychosurgery. However, there is a section headed, “Parent or guardian may be excluded from hearing” covering how a psychiatrist can tell the Tribunal it is not in the child’s best interest for the parents to be at the hearing.
Therefore, parents may not even be able to express their views at the hearing. Psychosurgery should be banned, as it is in N.S.W. and N.T. [Pages: 108, 109, 110, 197, 198, 199, 213 of the Draft Mental Health Bill 2011]
12 YEAR OLDS WILL BE ABLE TO CONSENT TO ELECTROSHOCK (ECT):
Electroshock is the application of hundreds of volts of electricity to the head. It can cause brain damage and permanent memory loss, as well as death. Any child aged 12 and over, whom a child and adolescent psychiatrist decides is mature enough, will be able to consent to electroshock without the need for parental consent.
Also, once the child has consented, there is no requirement for anyone else, including the Mental Health Tribunal to approve the electroshock. If the child is involuntarily detained and aged over 12, a psychiatrist can give consent for the child and the Mental Health
Tribunal gives final approval. Again, no parental consent is required for the Tribunal to approve the electroshock.
Involuntary patients over 18 years of age can also be given “Emergency ECT.” No consent is needed from the patient or next of kin, just approval from the Chief Psychiatrist. It is not known if this approval will be given over the phone or in writing, as this is not stated in the draft bill.
Some facts about ECT:
• The 2001 Policies and Procedure Manual of W.A.’s Graylands psychiatric hospital warned staff that once the electroshock machine was turned on, “it was as lethal as a loaded gun and should be treated as such”.
• Medicare-funded-electroshock treatments in W.A. increased 50% between 2005 and 2011.
Freedom of1Information Requests revealed that in 2007/08 children aged 11 to 15 were given electroshock. In 2009/10 there were 16 children under the age of 18 who were given electroshock. If this Mental Health Draft Bill is implemented, the numbers of children receiving electroshock can only skyrocket, as all required safeguards to protect children are not in the bill.
• Voluntary patients in W.A. who refuse to consent to electroshock are threatened with involuntary commitment.
A voluntary patient was given electroshock in 2010/11 despite refusing to give consent. Threats to make a patient involuntary if they refuse any treatment are common.1 To be forced to receive damaging physical treatment with permanent debilitating consequences is a violation of fundamental human rights.
It is the role of Parliament to protect citizens from harmful psychiatric practices encased in law. If Parliament had not banned Deep Sleep Treatment (where patients were put into a drug induced coma and battered with electroshock) in N.S.W. it would still be legal. In N.S.W., 48 people died in the infamous Chelmsford Private Psychiatric Hospital after receiving Deep Sleep Treatment and it took a Royal Commission to expose the human rights abuses.
For years the psychiatric profession had turned a blind eye and failed to effectively act against its members whose conduct was abusive and criminal.
They must have external scrutiny and review.
While electroshock is set to be banned in the draft bill for any child under 12 only, in 2009 the previous W.A. Mental Health Minister Mr. Graham Jacobs, said he believed it should not be given to any child under 16 and he believed most people would want the age cut-off to be higher than 12 years. Electroshock should be completely banned, but its use on the elderly, pregnant women and children is especially destructive and should be prohibited.
[Pages: 100, 101, 103, 104, 194, 105 of the Draft Mental Health Bill 2011]
AGE OF A CHILD: The age of a minor is determined by existing laws and this proposed draft of the Mental Health Bill also defines a child as “a person under 18”. While society restricts 12 year olds from smoking cigarettes, drinking alcohol, skipping school, having sex and driving a vehicle, psychiatry wants them to “consent” to mind-altering drugs, electroshock, psychosurgery and sterilisation. How is it that a 12 year old, according to a psychiatrist’s subjective opinion, could “have sufficient maturity and understanding to make reasonable decisions about matters relating to him or herself” when the information provided by psychiatry is biased and subjective? [Page 3 of the Draft Mental Health Bill 2011]
PARENTS RIGHT TO VISIT & COMMUNICATE WITH THEIR CHILD CAN BE REMOVED: At any time a psychiatrist can decide it is not in the child’s best interest to see his or her parents. The psychiatrist can make an order which prohibits the right of a parent to visit or communicate with their child, and refuse the child access to the telephone or visits from friends. [Pages: 145, 146 of the Draft Mental Health Bill 2011]
KIDS PLACED IN PSYCHIATRIC WARDS WITH ADULTS: The draft bill does not rule out children being held in wards with adults if the mental health service considers it is appropriate for them to be there. Children should never be treated in a psychiatric ward with adults. To consider exposing children to such an environment shows pitiful respect for them and leaves them open to physical and sexual abuse in an environment where there is insufficient supervision. [Page 161 of the Draft Mental Health Bill 2011]
RESTRAINT AND SECLUSION OF CHILDREN: Children can be restrained in a psychiatric institution. Only the use of mechanical restraint (manacles, belts, straps etc.) and the use of bodily force by others are covered in the draft bill. Chemical restraint, the use of psychiatric drugs to subdue and control the person, is not covered in the draft bill, so there are no legal safeguards to prevent its application.
In the 2009 National Mental Health Consumer and Carer Forum’s (NMHCCF) report “Ending Seclusion and Restraint in Australian Mental Health Services”, it states: “Chemical restraint is unacceptable as a form of involuntary restraint in any circumstance” and is an “exceptionally dangerous experience for people with a mental illness, as documented previously by the Mental Health Council of Australia”.
Death can result from all forms of restraint. Only an oral order is needed for the restraint of a child. This order can be given not only by a psychiatrist, but also by a psychologist, nurse, social worker or occupational therapist.
The National Mental Health Consumer & Carer Forum’s position is that involuntary seclusion and restraint should be “eradicated from use in Australia’s mental health services”, “are commonly associated with human rights abuse”, “are not evidence-based therapeutic interventions,” and can “cause short term and long term emotional damage to consumers”. It is terrifying for adults, much less children. No law should force such abuse on any individual.
The draft bill allows for any child to be secluded at any time in a psychiatric facility. The Council of Official Visitors, set up to assist involuntary patients and inspect psychiatric facilities, reported in their 2011 annual report that they had received complaints regarding rough treatment towards secluded patients, clothing removed from patients when in seclusion, patients secluded too often and patients secluded with no toilet facilities, drinks or blankets provided.4 It is not known how many seclusions or restraints occur, as shockingly it is not a current reporting requirement under the existing Mental Health Act. However a 2005 report stated that there were 2,083 seclusions in W.A. for that year.5 [Pages:122, 121, 113, 246 of the Draft Mental Health Bill 2011]
CHILDREN CAN ADMIT THEMSELVES TO A PSYCHIATRIC FACILITY & CONSENT TO DRUGS WITHOUT PARENTAL CONSENT:
Any child, regardless of age, who according to a psychiatrist “has sufficient maturity and understanding to make reasonable decisions about matters relating to him or herself” can admit themselves to a psychiatric hospital without parental approval and consent to potentially harmful recommended psychotropic drugs. [Page 160 of the Draft Mental Health Bill 2011]
INVOLUNTARY COMMITMENT OF CHILDREN: At any time or place, a medical practitioner or authorised mental health practitioner (the draft bill does not even define who this will be) who “suspects” a child of mental illness can make a legal order for them to be sent for psychiatric assessment. Even a child at a medical appointment or in a general hospital suspected of mental illness could be detained for up to 3 days while awaiting transport for assessment. Once the child is transported to the assessing psychiatrist (usually at a psychiatric hospital) the psychiatrist can involuntarily detain the child for up to 14 days.
Parents will not be able to discharge their child and take them home; the psychiatrist has the power to prevent parents from seeing their child if they decide it is in the child’s best interest. A psychiatrist can then make a “continuation order” to continue the involuntary commitment for up to 3 months once the 14 days has expired. He or she can continue to do this in up to 3 month blocks each time. During detainment the child could be drugged, restrained, secluded, given electroshock (if 12 or over) and could be put into a ward with adults. Parental consent is not required to continue the detainment or for any treatment.
APPEAL: The parents can appeal the child’s involuntary detainment to the Mental Health Tribunal. If parents don’t appeal, the Tribunal must review the child’s involuntary detainment within 10 days of admission to the psychiatric hospital and then every 28 days.
The Tribunal cannot order a psychiatrist to change the treatment the child is receiving. A psychiatrist can tell the Tribunal it is not in the child’s best interest for the parents to be at the hearing and parents can be excluded.
There are no guarantees that an appeal or hearing at the Mental Health Review Tribunal will result in the child being allowed to go home. In 2010/11 there were 1,248 hearings for all ages of patients with the current W.A. Mental Health Review Board. Only 4.6% (58) people had their status changed from involuntary to voluntary.
There should be no difference in parental rights with psychiatric treatment than there is with any other medical treatment. It is completely unacceptable to remove parental rights over children where those parents are not subject to legal orders preventing them access to their children.
As currently written in the Draft Mental Health Bill 2011, a psychiatrist can also prohibit any patient from receiving visits from his or her lawyer. The South Australian government provides funding for a lawyer of the person’s choice for mental health tribunal hearings so that each person has the right to independent legal representation.7
The W.A. draft bill omits such a scheme. This must be added so that every involuntary patient in W.A. receives fair legal representation. Many involuntary patients cannot afford lawyers. The Mental Health Law Centre provides free legal advice to as many involuntary patients as it can, but are not able to help everyone who contacts them because they are grossly underfunded. Consequently, many involuntary patients are left vulnerable without someone to care for their interests and needs
For adults, involuntary detainment is the same except the initial commitment time can be up to 21 days and waiting time for an initial review is up to 35 days and then every 3 months.
In 2011, $244.7 million was spent on admitted patients.8 In 2010/11, there were 2,842 people involuntarily detained (of which, 930 were detained for the first time). This is a 12% increase over 2007/08.9 Parents and guardians should always be the decision maker regarding their child’s health—including mental health—needs.
This is especially so given the harmful side-effects and permanent disabilities that can result from psychiatric treatments.
Further, this Draft denies parents and adults the right to defend themselves or their child in a court of law prior to incarceration. A criminal defendant has more rights than someone presenting for committal to a psychiatric facility. Only a judge or magistrate should be able to order detainment of a person who is defended by a lawyer of their choice—and at the cost of the State seeking to deprive the person of liberty. [Pages: 21, 22, 35, 19, 107, 36, 53, 54, 183, 184, 185, 190, 191, 213, 214 of the Draft Mental Health Bill 2011]
CHILDREN AND COMMUNITY TREATMENT ORDER (CTO): A community treatment order is a legal order that enforces treatment, usually mind-altering drugs, in the community. A psychiatrist can issue a CTO which only needs to be confirmed by another medical practitioner or authorised mental health practitioner. If the child is in a psychiatric hospital, that confirmation by another practitioner is not required. The initial CTO can be for up to 3 months.
A continuation order for the CTO can be made for subsequent 3 month blocks. If the child or adult non-complies with the CTO, he or she can be ordered to attend a place and given (forced to undergo) treatment. If the person does not attend, he or she can be picked up and involuntarily detained in a psychiatric hospital—and therein be subject to enforced treatment. Mental Health Tribunal hearings must occur within 10 days of a child being placed on a CTO and thereafter, every 28 days.
There is no guarantee that the Tribunal will agree to the child being taken off the CTO. In 2010/11, only 26 people were taken off their CTO. CTO’s in W.A. have increased approximately 20% since 2007/08.11 [Page: 18, 46, 47, 48, 65, 66, 70, 73, 75, 76, 77, 183, 184 of the Draft Mental Health Bill 2011]
WHO WILL BE ABLE TO DETAIN A CHILD IS NOT FULLY KNOWN: The Draft Bill states that a medical practitioner or an authorised mental health practitioner can write a legal order for compulsory psychiatric assessment or involuntarily detaining of a child or adult. However, an “authorised mental health practitioner” is not defined, leaving it open to wide-sweeping interpretation—not approved by the legislature. The bill alarmingly states that the Chief Psychiatrist can decide the qualifications of the “authorised practitioner” and publish this in the Gazette. This clause must be removed. Only a judge or magistrate should have the power to detain someone.[Pages: 246, 247, 21, 22 of the Draft Mental Health Bill 2011]
ENFORCED DRUGGING OF CHILDREN: If a child or adult is an involuntary patient, he or she can be forced to take drugs against their will, despite the serious—often life-threatening—side-effects. Parental consent is not needed for the child, violating the parental right to decide the child’s healthcare needs. These drugs are not like medical drugs, which commonly treat, prevent or cure physical disease.
These drugs are treating behavioural and emotional issues and have horrific side-effects, including hallucinations, psychosis, heart problems and suicidal behaviour. There have been 629 deaths linked to antipsychotics in Australia, 15 of those for children under 19 and another 286 deaths linked to antidepressants, 5 of which were aged between 10 and 19.
CONSENT LAWS: While the new consent laws are an improvement, they only apply to a voluntary patient. If a parent refuses to give consent for treatment for their child or a patient does not consent, a psychiatrist can arbitrarily assert “they unreasonably refused treatment” and force treatment anyway. [Pages: 160, 13, 14, 19, 20 of the Draft Mental Health Bill 2011]
ADVOCATES: There will be a Chief Mental Health Advocate that a child or adult can contact when a referral for assessment is made or when admitted. A youth advocate must visit the child within 24 hours of admission to a psychiatric hospital. Advocates can inquire into and report on: whether the patient’s rights have been upheld, inquire into any complaints on behalf of the person and refer the issues to the appropriate person, assist the patient to file a complaint, assist him or her to access legal services and attend hearings with him or her.
As the Draft Bill is currently written, advocates do not have any specific power to immediately intervene and halt an abuse. Their powers include: to ensure that documents and data are provided to them about the patient, and to report problems to the head of the mental health service and then the Chief Psychiatrist who will decide if further investigation is needed and assist the patient as mentioned above. [Pages: 4, 5, 23, 27, 170, 171, 168, 169 of the Draft Mental Health Bill 2011]
CARERS’ RIGHTS: The addition of new carers and “nominated persons” rights (a person nominated by the patient to ensure their rights are observed and their best interests are taken into account) is also an addition that can be completely overruled by a psychiatrist. Carers and nominated persons play a significant role, yet at any time a psychiatrist can decide that it is not in the patient’s best interest that they be involved and can exclude a carer or nominated person. [Pages: 147, 154, 206 of the Draft Mental Health Bill 2011]
NO INDEPENDENT INSPECTION OF PSYCHIATRIC INSTITUTIONS: Currently the Council of Official Visitors can inspect psychiatric hospitals, wards and hostels. As a result, many have exposed the horrific conditions that patients are subjected to and the appalling state of psychiatric wards. This has included: patients wearing communal underwear, basin taps not working; urine, faeces and vomit in wards, cockroaches in cupboards, filthy bathrooms and broken furniture.
These conditions are not therapeutic for anyone. The Council of Official Visitors will be replaced by Advocates in the Draft Bill. However, no one is given the responsibility of inspections. This prevents an objective watchdog role that could uncover abusive conditions that patients suffer.
WHO IS RESPONSIBLE FOR THIS DRAFT BILL?: The W.A. Mental Health Commission (MHC) was responsible for writing the Draft Mental Health Bill. The person overseeing this was the Mental Health Commissioner and clinical psychologist, Mr Eddie Bartnik.
The MHC was allocated a budget of more than half a billion dollars in 2010/2011 for W.A.’s mental health system (this is up 37% from 2007/08)12 W.A. spends more per capita on mental health services than any other state in Australia. With a budget of this size, one would expect the MHC’s performance indicators to include accountability for the money spent.
In 2012, Sebastian Rosenberg, a senior lecturer at the University of Sydney’s Brain and Mind Research Institute said that despite the billions poured into mental health by successive state and federal governments, and despite the $2.2 billion allocated in the most recent federal budget, there was “a dearth of information about outcomes for people with a mental illness”.14
Instead key performance indicators largely involving “the number of people using mental health services” are used by the MHC to determine the mental health wellbeing of Western Australians.15 This grossly underestimates the monitoring system required.
Some children who are troubled undoubtedly require special care. But they should get holistic, humane care that improves their condition. They should be treated with care and compassion. Institutions should be turned into safe havens where parents can seek help for their children, other family members or themselves, without the fear of indefinite incarceration or harmful and inhumane treatment.
They need a safe, quiet environment, good nutrition, rest, exercise and help with life’s problems. Extensive medical evidence proves that underlying and undiagnosed physical illness can manifest as “psychiatric” symptoms and, therefore, should be addressed with the correct medical treatment, not unworkable psychiatric techniques. Studies show that once the physical condition is corrected, the mental symptoms disappear.
Anyone admitted to a psychiatric institution should have the right to a full physical examination and for referral to a specialist as needed. With proper medical care and help with life’s problems, people can lead healthier and happier lives. Psychiatrists admit they do not know the cause of any mental disorder and have absolutely no cures. Yet this oppressive Bill expects taxpayers to fund a coercive system that not only does not work, it also harms.
WHAT YOU CAN DO:
1. Write expressing your objections to the Draft Mental Health Bill 2011 and send it to the Mental Health Commission.
2. Feedback closes 9th March 2012 at 5 pm.
3. Email: firstname.lastname@example.org
4. Mail: GPO Box X2299 Perth Business Centre, W.A. 6847
Send a copy of your objections to the Mental Health Minister, Health Minister and your local Member of Parliament.
Find their addresses at:
2. Tell others so they too can take action and write a “Letter to the Editor” to your local and state newspapers.
3. The draft bill can be viewed on the W.A. Mental Health Commission website http://www.mentalhealth.wa.gov.au under “Mental Health Changes” and then, “Mental Health Legislation.”
WA Government Serious On Mental Health
Posted on 28 July 2010 .
Western Australia Minister for Mental Health Graham Jacobs
Government Announces State’s First-Ever Mental Health Commissioner
Victor P Taffa
Mental Health Minister Graham Jacobs today welcomed the announcement of Mr. Eddie Bartnik as Western Australia’s first-ever Mental Health Commissioner.
Mr. Eddie Bartnik
Commissioner Mental Health Commission.
This year, the Liberal-National Government has delivered the first-ever Mental Health Commission to drive reform and we have the first ever ring-fenced budget of more than $506 Million for Mental Health.” Dr. Jacobs said.
“Today’s appointment of the first-ever Mental Health Commissioner in Australia magnifies the priority this Government places on Mental Health.” Dr. Jacobs said.
Mr. Bartnik is experienced in senior management across various agencies in WA’s public service, including leadership roles in policy, funding and State-wide service delivery with the Disability Services Commission.
Mr. Bartnik has been Acting Director General of the Department for Communities since last September.
Mr. Bartnik has worked extensively in the human services sector with particular emphasis in the disability and community services area and with relevant experience in mental health.
Mr. Bartnik brings experience in changing disability service systems to make them more responsive to individual needs and has had a key leadership role in the development and implementation of the Local Area Coordination approach to personalised support and individualised funding for people with a disability and their families in WA, and its subsequent implementation nationally and overseas.
Mr. Bartnik holds a Masters degree in Clinical Psychology; Master of Educational Studies and a Bachelor of Arts (Honours in Psychology). He is a graduate of the Australian Institute of Company Directors; a fellow of the Australasian Society of Intellectual Disability; and an associate fellow of the Australian Institute of Management.
The new Mental Health Commissioner should begin his new role in mid-August.
Senior Lecturer - Mental Health Policy Unit, Brain & Mind Research Institute
Masterclass: The New Mental Health Commission and Accountability
Sebastian Rosenberg is Senior Lecturer in Mental Health Policy at the Brain and Mind Research Institute, University of Sydney, and is also an Associate at ConNetica Consulting.
Sebastian worked from 2005-09 as Deputy CEO of the Mental Health Council of Australia and before this had 17 years experience working in both state and federal governments.
In 2011 he was appointed Expert Facilitator to the Taskforce to establish the NSW Mental Health Commission and is also a member of the NHMRC Committee on Prevention and Community Health.
Sebastian is a PhD candidate, his topic being to establish a National Mental Health Report Card for Australia.