In WA, some of our most vulnerable citizens can face indefinite detention in a prison, where medical attention is scant. Their case would be reviewed behind closed doors just once a year, and they will have no right to appear and appeal their ongoing imprisonment.
The Western Australian government has detailed its reform agenda for the mental health sector in a ten-year Strategic Plan ‘Mental Health 2020: Making it personal and everybody’s business’.
The intent of the plan is to improve the lives of people experiencing and affected by mental ill-health, to reduce stigma and to provide people with the care and treatment they need to live good lives in the community. It is a honourable and laudable intent.
This progressive reform agenda however, faces the real danger of being undermined by a shameful piece of state legislation called the Criminal Law (Mentally Impaired Accused) Act 1996 (the MIA Act).
Mental impairment in the Act includes senility, intellectual disability, brain damage as well as mental illness in both children and adults.
It is an Act the most senior law-maker in our State, Chief Justice Wayne Martin, has described to a parliamentary committee as having ‘serious problems’.
The recent Stokes Review highlights families heartbreak and distress when their unwell loved ones subsequently end up in the criminal justice system, a situation that may well have been avoidable for both the individual and any victim of the offence.
Firstly, if a person allegedly commits a ‘serious offence’, as identified by the MIA Act, and is deemed by a psychiatrist to be too mentally unwell to stand trial, the judge must make a Custody Order that has the effect of indefinitely detaining the person at the Governor’s pleasure. Imagine knowing that your unwell loved one is facing a jail sentence that has no end point.
Secondly, if a person is successful in raising a Section 27 Defence, “Not Guilty Due to Unsound Mind”, the judge must either release the person unconditionally or place them on a Custody Order.
The presence of indefinite detention means that people receive advice to plead guilty to an offence and face the possibility of spending some time in prison, rather than take the risk of an indefinite sentence, despite the fact they could successfully prove that they were ‘of unsound mind’ at the time of the offence.
Under the MIA Act, a person may be detained in an authorised hospital, a prison, a detention centre (for young people) or a declared place. However, there are only 30 beds available in the State Forensic Mental Health Service and many of these beds are occupied by people waiting for psychiatric assessment as directed by the courts.
The harsh reality is that mentally unwell people detained on Custody Orders spend their time in prison because a ‘declared place’, where the focus would be on medical treatment and care, has never been built.
If community safety is the reason for detaining an unwell person, it would make sense to detain them in a place in which they will receive the proper health treatment and care to enable them to recover and minimise the likelihood of their re-offending when they return to the community.
When people enter prison, social security entitlements are immediately terminated, as are PBS and Medicare entitlements, and families are often unable to ensure that the person will receive their correct medication.
The MIA Act allows for only annual reviews of a person’s case, at which the person has no right to appear or to have a legal representative advocate for them. Rather than in a court, the reviews are carried out by the Mentally Impaired Accused Review Board, who meet behind closed doors. The reviews are passed onto the Attorney General, with no timeframe for a decision to be made.
Contributing to the problem is that other mental health legislation such as the Mental Health Act 1996 and the current Green Bill sit in the jurisdiction of the Minister for Mental Health, while the MIA Act sits with the Department of the Attorney General.
Reviewing both Acts at the same time would certainly make more sense and also better reflects the intent of the 2020 Strategic Plan, which speaks of having a ‘whole-of-government approach’ to mental health.
The development of the Green Bill, which proposes progressive changes to the Mental Health Act 1996, has been undertaken with considerable community consultation. The MIA Act is currently under review but the question arises as to who is informing this review as key stakeholders have not been invited to do so.
Some 700 local, national and international delegates at a 2012 Richmond Fellowship Conference in Perth were so outraged on learning of the draconian MIA legislation that they passed a resolution, which was forwarded to the Premier, requesting specific amendments to the MIA Act, including limiting a Custody Order to no more than the term of imprisonment to which the person would have been sentenced, and giving judges better options when a person stands trial.
If the government is indeed serious about improving the lives of people with mental ill-health, then it must urgently review the MIA Act in consultation with key stakeholders. To do otherwise and to allow this heinous piece of legislation to continue in its current form, is an affront to basic human rights. We urge the Premier to intervene to ensure this Act is reviewed simultaneously with the Mental Health Act 1996 Green Bill.
A comment piece written by Joe Calleja, Richmond Fellowship WA and Margaret Doherty Mental Health Matters 2