12 year olds to consent to Psychosurgery, ECT and Sterilisation (without parental permission) under proposed Western Australian laws
Western Australian Mental Health Minister Helen Morton has released draft legislation that would please the One Flew Over the Cuckoo’s Nest fictional Nurse Ratched.
Under the laws proposed by Minister Helen ‘Ratched’-Morton.
Children as young as 12 would be able to consent to Psychosurgery, ECT and Sterilisation (without parental permission).
Social workers, Occupational Therapists, Registered Nurses, Midwives and other authorised Mental Health Practitioners (with minimal mental health training) will be able to detain and treat people suspected of having a mental illness for up to 3 days (potentially a week under certain circumstances).
Police will be able to apprehend any individual they suspect of having a mental illness and of being a danger to themselves, the public or property, enter any premises, conduct body searches and seize any articles from the individual suspected of having a mental illness.
The legislation places the burden of proof on patients to prove they are well, rather than on authorities to prove they are ill. It provides inadequate protections to vulnerable individuals and often reverses the responsibility to prove a case from the “judge come jailer” to the “jailed”.
A copy of my submission opposing the legislation is below or available at http://speedupsitstill.com/12-year-olds-consent-psychosurgery-ect-sterilisation-without-parental-permission-proposed-western-australian-laws . The draft legislation is available at http://www.mentalhealth.wa.gov.au/Libraries/pdf_docs/Discussion_Draft_for_Mental_Health_Bill_2011_v3.sflb.ashx and the Western Australian Mental Health Law Centres submission is available at http://www.mhlcwa.org.au/frms/HealthBill.htm
Martin Whitely MLA
Mental Health Commission
GPO Box X2299
Perth Business Centre WA 6847
Re: Mental Health Bill 2011 (draft for public comment)
I am writing to you to express my concerns with aspects of the Mental Health Bill 2011 (Draft for Public Comment). One of the stated aims of the bill is to “provide for the protection of the rights of people who have a mental illness”. The bill in its current form will not achieve this aim.
The main issues with the proposed legislation that I have identified are outlined below. All care has been taken to accurately reflect the content of this bill, however my submission has been completed without the detailed legal advice available during parliamentary processes.
Psychosurgery and Electro-Convulsive Therapy (ECT) for Children
Psychosurgery– is defined in the draft bill as ‘the use of a surgical technique or procedure or intra-cerebral electrodes to create in a person’s brain a lesion intended, whether alone or with…other lesions created…to alter permanently, the person’s thoughts or emotions; or behaviour…’(section 166)
The proposed legislation allows children as young as 12 to have psychosurgery (sections 169-170). A legally authorised person, normally a child’s guardian or parent, would be able to consent to the procedure under certain circumstances. More worryingly children as young as 12 would be able to consent on their own behalf and without the permission of parents or a guardian if they are deemed to be capable of understanding the situation.
It is very difficult to imagine how any 12 year old (or 17 year old for that matter), particularly one with with severe mental health problems, would be capable of understanding the full implications of psychosurgery and therefore of giving “informed consent”. I believe psychosurgery should be outlawed for children. Failing this the bill must be amended so that the permission of all parents and/or guardians must be obtained.
In addition, the maximum fine of $30,000, (maximum gaol term of five years) for conducting psychosurgery on a child under 12 years of age (section 168) is an absurdly low financial penalty for unlawfully permanently damaging a child’s brain. A massive fine along with the proposed maximum five year imprisonment and automatic permanent deregistration is a more appropriate penalty.
Electro-Convulsive Therapy– Section155 of the draft bill enables a child to consent to ECT without the knowledge of their parent(s) or guardian(s). There are compelling arguments that ECT should be banned in children, however failing this, as a minimum, the legislation must require the consent of all parents and/or guardians before this invasive procedure is permitted.
Sterilisation of Children
The draft bill provides that a child of 12 or older can consent to a sterilisation procedure if they are deemed to have “sufficient maturity” (section 209). It is difficult to imagine how any child, let alone one with a severe mental illness, could possess the necessary foresight and clear thinking required to make a permanent life changing decision of this magnitude.
It is possible to imagine circumstances where because of severe mental retardation or medical complications it maybe in a child’s best interest for a court to permit compulsory sterilisation. But I find it impossible to imagine other circumstances where either voluntary or compulsory sterilisation is justified.
Powers of Detention
Under the proposed legislation the Chief Psychiatrist can designate social workers, occupational therapists, registered nurses, midwives and psychologists as authorised mental health practitioners. Those deemed to hold equivalent qualifications can also be designated authorised mental health practitioners (sections 421-422). Any medical practitioner or authorised mental health practitioner may detain a person for up to 72 hours initially (section 27). When extended transportation orders (section 128) and delays for examination (section 46) are taken into account, an individual could potentially be detained for up to seven days without ever being assessed by a psychiatrist.
Police officers are required to “take reasonable steps to ensure that a medical practitioner or mental health practitioner is present” when apprehending people suspected of having a mental illness. Nonetheless police are empowered under section 130 to apprehend any individual they suspect of having a mental illness and of being a danger to themselves, the public or property. Police officers are also empowered to enter any premises, conduct body searches and seize any articles from the individual suspected of having a mental illness (section 132). There are very good reasons why police cannot arrest someone whom they merely suspect may commit a crime. Those suspected of having a mental illness should be given at least the same protections.
When the powers of detention are exercised by clinicians, police and ‘authorised mental health practitioners’ there needs to be an automatic process of timely independent review. This will at least ensure there is accountability after the event for the use of these extra-ordinary powers.
Operation of the Mental Health Tribunal
An involuntary in-patient may apply to the Mental Health Tribunal should they be unhappy with their treatment order. However, the draft legislation appears self-contradictory and is unclear as to whether the Tribunal can actually enforce its decisions (section 304). The tribunal can serve compliance orders regarding legislative requirements, but there is no penalty set out in the legislation for service providers who still fail to comply with the legislation (sections 326-327).
Aside from the patient and the mental health advocate, the tribunal is empowered to decide who has a “relevant” interest in the matter in order to apply for an inquiry or be included in an inquiry or review (sections 331 & 332). Guardians (where relevant), or nominated persons should have the automatic right to be included in proceedings. The tribunal is not even required to consider the wishes of a patient or guardian in regards to involuntary treatment orders (section 303). Additionally patient’s rights, including the right to uncensored and private legal conversations, can be overruled by a psychiatrist (sections 228-229).
There are no time limits for seclusion orders (part 11 division 5) or limitations on which physical and mechanical restraint techniques may be used (part 11division 6). There is no differentiation between how adults and children can be restrained.
The use of phrases such as “unreasonably refused treatment”, “risk to the health safety or welfare” (see section 25) and “disturbance of thought, mood, orientation or memory” (section 4) are too broad and therefore open to abuse. Finally, psychiatrists can change a community treatment order to an involuntary in-patient order on the basis of a report from a ‘practitioner’ without personally examining the patient (section 108).
This legislation presents a unique opportunity to balance the rights and freedoms of some of our most vulnerable member of society and the need to occasionally intervene in emergency situations. Whilst virtually all legislation will impact upon individual liberties, it is crucial that government does not give undue and unchecked power to various groups to restrict others freedoms.
Overall the legislation appears to place the burden of proof on the patient to prove they are well, rather than the treating clinician or mental health professional to prove they are ill. It provides inadequate protections to vulnerable individuals and often reverses the responsibility to prove a case from the “accuser” to the “accused”.
I appreciate your taking the time to read this submission and look forward to your detailed response.
Martin Whitely JP MLA
Member for Bassendean
7 March 2012