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Contributed by ShaylaStrapps and LukeCassidy and current to 27 July 2018

The Mental Health Act 2014 (WA) (the Act) came in to force on 30 November 2015. This new legislation brought with it a greater focus on meeting human rights standards for treatment of people with a mental illness. This is reflected by the purpose of the Act, which is:
  • to provide for the treatment, care, support and protection of people who have a mental illness; and
  • to provide for the protection of the rights of people who have a mental illness; and
  • to provide for the recognition of the role of carers and families in providing care and support to people who have a mental illness, and for related purposes.
The Act provides 15 principles for mental health care known as the Charter of Mental Health Care Principles. Regard must be had to these principles when providing treatment and care to any person with a mental illness. The principles outline the standards expected of mental health services to provide treatment with dignity and respect while also respecting a person’s right to make their own decisions within the framework of the Act.

Mental Illness

The Act primarily applies to people with a mental illness for which they are receiving treatment. The Act states that a person has a mental illness if that person has a condition that:

a) is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

b) significantly impairs (temporarily or permanently) the person’s judgment or behavior.

The Act further specifies that a person does not have a mental illness merely because one or more of the following apply:

a) the person holds, or refuses or fails to hold, a particular religious, cultural, political or philosophical belief or opinion;

b) the person engages in, or refuses or fails to engage in, a particular religious, cultural or political activity;

c) the person is, or is not, a member of a particular religious, cultural or racial group;

d) the person has, or does not have, a particular political, economic or social status;

e) the person has a particular sexual preference or orientation;

f) the person is sexually promiscuous;

g) the person engages in indecent, immoral or illegal conduct;

h) the person has an intellectual disability;

i) the person uses alcohol or other drugs;

j) the person is involved in, or has been involved in, personal or professional conflict;

k) the person engages in anti-social behaviour;

l) the person has at any time been
i. provided with treatment; or
ii. admitted by or detained at a hospital for the purpose of providing the person with treatment.

For the purposes of the Act, a person is considered to have a mental illness if the above definition is met regardless of whether a psychiatrist has provided a specific diagnosis.

Acting in Best Interests

Many provisions of the Act, particularly those dealing with patients receiving involuntary treatment, require a decision to be made in the persons best interests. When doing so, the person or body making the decision must have regard to the following:

a) the person’s wishes, to the extent that it is practicable to ascertain those wishes;

b) the views of each of these people —
i. if the person has an enduring guardian or guardian — the enduring guardian or guardian;
ii. if the person is a child — the child’s parent or guardian
iii. if the person has a nominated person — the nominated person;
iv. if the person has a carer — the carer;
v. if the person has a close family member — the close family member;

c) any other matter that the person or body considers relevant to making the decision.

When attempting to ascertain a person’s wishes, all communication with the person must be in a language, form of communication and terms that the person is likely to understand. This may involve use of an interpreter and alternative means of communication if practicable.

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