Shooter Mental Health - The Loose Cannon

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The P650 form is proving to be a major problem for the NSW shooting community, as it seems to be used as a means of preventing people from lodging an application, and therefore placing them into an administrative ‘limbo land’ that prevents them from applying for a licence and thus gaining access to appeal processes.

I have two comments in respect to this.  The first is that there is a way of forcing a bureaucrat to take action that they are reluctant to take, it is to seek a writ of Mandamus from the Supreme Court, and it would require that a bureaucrat do his job and permit an application to be filed.

The problem here is that Supreme Court action is expensive.

The second issue that I wish to raise is the wording of the P650 form itself, as it is often misunderstood by shooters.

It asks:

(e) whether they have ever attempted suicide or self-harm

(f) If in the past 12 months they have been treated for drug dependence, alcoholism or mental illness within the meaning of the Mental Health Act 2007 or mentally disordered within the meaning of that Act.

(e) obviously is easy, and unfortunately catches out a lot of people who have not made serious attempts at suicide or self-harm and who have engaged in a cry for help.

There is a fundamental difficulty with (f) in that most mental illness involves an element of lack of insight- and that is one of the primary functions of psychotherapy. 

Secondly, even if the applicant does have the necessary insight, there is an issue whether they have the medical, psychological or indeed legal qualifications to evaluate whether they are mentally ill or mentally disordered within the meaning of the Mental Health Act, and therefore, unless they have been formally scheduled, and thus have been literally given a certificate to the effect that they meet this standard, they are really not qualified to answer this question.

The Registry practice of accusing people of dishonesty for making a false declaration is therefore often very unfair, and many, who answer the question honestly, without understanding the test, provide a factually and legally incorrect response because they are using a colloquial rather than medical or legal definition being mentally ill or mentally disordered persons.

I have set out the relevant sections and definitions contained in the Mental Health Act 2007 below.  

As many bouts of mental illness, for example those of a short-term adjustment nature, and even depression, may not meet the standard in the Act of ‘serious disorder of thought form’ or ‘serious disturbance of mood’ or ‘sustained or repeated irrational behaviour’, you should consult your Doctor, a psychologist or psychiatrist prior to answering the question, and have your GP file note his or her advice.  

This way, if need be, you can advise that you made due enquiry and answered the question honestly.

The definitions from the Mental Health Act (NSW) are below:

S4 mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a)  delusions,

(b)  hallucinations,

(c)  serious disorder of thought form,

(d)  a severe disturbance of mood,

(e)  sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

 

14   Mentally ill persons

(cf 1990 Act, s 9)

(1)  A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a)  for the person’s own protection from serious harm, or

(b)  for the protection of others from serious harm.

(2)  In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

15   Mentally disordered persons

(cf 1990 Act, s 10)

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a)  for the person’s own protection from serious physical harm, or

(b)  for the protection of others from serious physical harm.

16   Certain words or conduct may not indicate mental illness or disorder

(cf 1990 Act, s 11)

(1)  A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following:

(a)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief,

(b)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief,

(c)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy,

(d)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation,

(e)  the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,

(f)  the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,

(g)  the person engages in or has engaged in a particular sexual activity or sexual promiscuity,

(h)  the person engages in or has engaged in immoral conduct,

(i)  the person engages in or has engaged in illegal conduct,

(j)  the person has an intellectual disability or developmental disability,

(k)  the person takes or has taken alcohol or any other drug,

(l)  the person engages in or has engaged in anti-social behaviour,

(m)  the person has a particular economic or social status or is a member of a particular cultural or racial group.

(2)  Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.

If you wish to lodge an application for a firearms licence and have been in a state mental hospital lodge a GIPAA request (what NSW call Freedom of Information) with the hospital or Department of Health requesting all clinical notes including the induction and discharge assessments.

Generally, all the Firearms Registry have is the notes of the Police Officer who took the person to hospital that is noted on the COPS database, together I understand with the intake medical, as I have never seen reference made to a discharge medical in Registry correspondence.

Secondly, I would contact the Community Mental Health Team for a report addressing your fitness to hold a firearms licence.  They do not prepare these for people who have not been patients of the system, but a NSW Department of Health Psychiatrist told me last week that they have a policy of ‘cleaning up their own mess’ and prepare such reports for patients and former patients.

The Community Mental Health Team could also comment on whether an attempt at suicide was ‘real’ and whether they predict or are able to predict repetition.

If the Registry still fail to issue an Application for a Firearms Licence, and you have mental health issues but do not fall within the test, lodge a complaint with the Human Rights Commission.  This is a Federal body that ensures our Australian compliance with its human rights obligations.

In responses to questions on notice, in the NSW Parliament Thurs 29 Aug 2019, the NSW Police Commissioner responded, at page 69 the Commissioner indicated that the Registry now gave more training to staff on mental health decision making, particularly at induction.  I would love to see the training materials so as to comment upon their adequacy.

My view is that having Clerk assess such material is not appropriate.  It is really a job for an experienced mental health nurse, or a clinical psychologist.

I am sure that if the Police Commissioner were to find himself named as a respondent to a human rights complaint, under circumstances where it was clear that a delegate of his, or a system put into place by a delegate had violated a citizen’s human rights, the system would change rather quickly.

A link for the Australian Human Rights Commission is below.

https://www.humanrights.gov.au

Simon Munslow

National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.

He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.

This article is written for general information only and does not constitute advice. 
He can assist you with:

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