The email message below was forwarded to 'The West Australian', WA's only daily newspaper, last Wednesday, January 30th. As the message explains, this month (February) has been marked out for continued public perusal and discussion of the draft WA Mental Health bill tabled in State parliament towards the end of last year, and due to be discussed and deliberated on in State parliament next month. 'The West Australian' has so for not published my message, and an email query over the weekend to the newspaper's Chief of Staff as to whether the item will go onto the Letters page has received no response. As 'The West Australian' evidently has no intention of publishing my message, not even a shortened version of it, I have decided to forward the message to alternative media. Appended to the message below is an article I published towards the end of last year urging Amnesty International to step in and act over the crisis in the WA Mental Health system.
Not mentioned in the message to 'The West' below is a particularly insidious feature of the new WA Mental Health Act in draft. Under the terms of the new Act, if it becomes law, a community Mental Health Department nurse in WA will have the power to liase by mobile phone with a psychiatrist based at a clinic or hospital to confirm with the psychiatrist a spot assessment the nurse might have made of anyone in the community whom they suspect of being mentally 'unwell'. Having thus obtained over the phone the psychiatrist's authorisation, the nurse can then arrange the conveyance of the person concerned to involuntary detention in a psychiatric institution. That person has no right of appeal to an independent court.
This extraordinary extension of the reach and power of the Mental Health Department and its community staff, as proposed in this new WA Mental Health Act, is obviously open to abuse and is in fact a major threat to civil liberties and freedom from arbitrary detention in this State. If this noxious draft legislation becomes law, citizens in this State will in future have to put up with not only the already-heavy federal and State police presence here, and with the ubiquitous undercover ASIO operatives, but also with numerous, roaming agents of Colin Barnett's 21st century-style 'Thought Police', masquerading as 'mental health' nurses.
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-impecuneous '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 signitory to the United Nations Charter of Human Rights. Sections of that charter clearly and specifically forbid any signitory government tolerating or sanctioning 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' court hearings, and court fees are minimal. Thus, financial 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 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 such patients to present their cases to a court hearing. 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
WHEN IS AMNESTY INTERNATIONAL GOING TO CAMPAIGN FOR THE RIGHTS OF MENTAL HEALTH PRISONERS IN WA?
by Graham Milner
The text below was appended to an article published late in 2011 on the old Perth Indymedia general newswire. This article presented a summary of a visiting Amnesty International leadership delegation's report on government neglect in remote Aboriginal communities in Australia. Shortly after the publication by Perth Indymedia of the Amnesty International report, and a couple of weeks before the Commonwealth Heads of Government Meeting began in Perth, Perth Indymedia was shut down by the collective that ran it. Some recent material that was then online in the Perth site archive was transferred to the national Indymedia site in Sydney, but the bulk of the Perth site's archives, in spite of promises from the supremos running the site that these archives would be preserved and would soon be made available online, was apparently lost. Amongst those items that did make it onto the Sydney-based Indymedia site was the Amnesty International report I have mentioned. However, my addendum on WA Mental Health was not included. The item I had posted about human rights and mental health in WA had been included as an addendum to the AI report published on Perth Indymedia, but the addendum was apparently cut from the AI article as published by Indymedia in Sydney. I queried on the Sydney-based Indymedia site the absence of my addendum, but received no comment or other response from the web-masters of that site.
I understand that a new Mental Health bill has either gone through, or is in the process of going through, State parliament in WA. I have yet to closely study the new WA Mental Health legislation, or proposed legislation. The remarks below about the 'WA Mental Health Act' refer to the legislation that was on the books when my article was written.
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I am pleased to see that both the international and the local leaderships of Amnesty International are so concerned about defending the rights of Aboriginal people in Australia. Very good.
How about the worthies of Amnesty International expressing similar concern about the rights of those who fall foul of the psychiatric health system in this country (in Western Australia for example). Over the last thirty-five years or so I personally have been detained in WA and other Australian psychiatric institutions on something like forty accasions. Practically all these admissions to State mental hospitals in WA or elsewhere were involuntary: in many cases in WA in particular I was simply picked up by the cops or the 'heroic whiteshirts' (ie. Mental Health Department thugs) and deposited by them in the central State psychiatric institution at Graylands. On some of those occasions I was kept against my will in that institution for several months at a time.
While held against my will at Graylands Hospital I was, on more occasions than I care to remember, repeatedly abused and humiliated by various members of the staff. While detained in the locked wards at Graylands, a pattern that was repeated during most of these admissions, I was several times stripped naked and locked overnight in the so-called 'single rooms' (cells) in the security complexes (wards). These cells have bare, lino-concrete floors and no ablutions or drinking water. One can say that things have really reached the pits when one has to attempt to drink one's own urine from a bare cell floor.
Once, shortly after I was released from one of my many incarcerations at Graylands Hospital, I approached Amnesty International in Perth with a view to urging them to take up the issue of the gross abuses of human rights that have occurred, and no doubt continue to occur, in State psychiatric institutions in WA. I was informed by the local AI representatives that Amnesty in Australia does not involve itself in any human rights issue within this country, and that this policy is the same for AI in every country in the world.
Well then, citizens, notwithstanding that stated policy, you do seem voluble enough about the rights and interests of indigenous Australians, which is of course a highly creditable thing. So when are you going to get off your backsides and say something about the gross abuses of human rights that regularly occur in public psychiatric institutions in Western Australia, and elsewhere in Australia?
As you should be aware, the practice of detention without trial is a violation of the United Nations Charter of Human Rights. Under the present incarnation of the WA Mental Health Act, as I understand it, there is no provision for a legal appeal beyond Graylands Hospital for anyone who wishes to challenge in the courts an involuntary detention at that institution.
Believe it or not, citizens, under the provisions of the WA Mental Health Act, for those people unfortunate enough to be held against their will under that Act at the Graylands 'funny farm', or similar institutions in WA, the buck stops as far as the right of appeal goes, with the Graylands-based 'Chief Psychiatrist' (or perhaps this person should be more appropriately referred to, after a celebrated sequence in Dostoevsky's novel 'The Brothers Karamazov', as the 'Grand Inquisitor').