LAWS OF SAMOA

[Reprint 1978-1996]

MENTAL HEALTH ORDINANCE 1961

TITLE
1. Short title
2. Interpretation

PART I
CONTROL AND TREATMENT OF MENTALLY DEFECTIVE PERSONS

3. Authority for detention of mentally defective person
4. Examination of mental defective
5. Procedure when reports made
6. Hearing of application
7. Order of medical custody
8. Renewal, variation, or cancellation of order
9. Arrest and detention of persons committed to medical custody
10. Arrest of person of unsound mind without warrant
11. Insane persons not to be tried for offences
12. Detention of accused persons acquitted on ground of insanity
13. Discharge
14. Orders of medical custody of criminal lunatics
15. Defence of insanity in criminal prosecution

PART II
VISITING BOARDS

16. Appointment of Visiting Boards
17. Copy of order to be forwarded to Director
18. Functions of Boards
19. Visits to be made
20. Report of Board
21. Minister may give directions

PART III
PROPERTY OF MENTALLY DEFECTIVE PERSONS

Administration after Order of Medical Custody

22. Notice to be sent Public Trustee
23. When Public Trustee to administer estate
24. Appointment of committee after order of medical custody

Administration After Inquisition

25. Inquisition
26. Scope of inquisition
27. Appointment of committee after inquisition
28. Provision for committee of estate only
29. Costs of inquisition

Powers of Public Trustee

30. Property of mental defective not to vest in Public Trustee
31. Powers of Public Trustee
32. Powers exercisable with sanction of Count
33. Public Trustee to be subject to orders of Court
34. Certificate by Public Trustee as evidence of appointment as committee, etc.
35. Capital money to form part of common fund of Public Trust Office
36. Contractual powers of person of whose estate a committee or administrator appointed
37. Maintenance payable out of estate
38. Court may appoint committee other than Public Trustee

PART IV

MISCELLANEOUS

39. Letters written by mental defectives
40. False or misleading certificate by medical practitioner
41. Neglect or ill treatment of mentally defective persons
42. Sexual intercourse with a mentally defective female
43. Penalties
44. Regulations
45. New Zealand enactment to cease to be part of the law of Western Samoa.

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No. 24 of 1961

AN ORDINANCE to consolidate and amend the law relating to the care and control of mentally defective persons and to make provisions for the conservation of their property.

(29 December 1961)

1. Short title - This Ordinance may be cited as the Mental Health Ordinance 1961.

2. Interpretation - In this Ordinance, except where the context otherwise requires:

"Board" or "Visiting Boards" means a Visiting Board appointed under this Ordinance.

"Court" means the Supreme Court of Western Samoa.

"Director-General" means the Director-General of Heath.

"Hospital" means the Government Hospital at Motootua, Apia.

"Judge" means a Judge of the Court.

"Medical practitioner" means a person qualified for appointment as a medical officer or to practise medicine or surgery in Western Samoa.

"Mentally defective person" means a person who owing to his mental condition, requires oversight, care, or control of himself or his property for his own good or in the public interest.

"Minister" means the Minister of Health.

"Order of medical custody" means an order of medical custody made under this Ordinance whereby a mentally defective person is required to receive oversight, care or control; and "medical custody" has a corresponding meaning.

"Public Trustee" means the Public Trustee appointed under the Public Trust Office Act 1975.

"Registrar" means the Registrar of the Court, and includes a deputy registrar.

PART I
CONTROL AND TREATMENT OF MENTALLY DEFECTIVE PERSONS

3. Authority for detention of mentally defective person - Subject to the exceptions hereinafter expressed, no person shall be received into any institution or detained as a mentally defective person except under the authority of an order of medical custody made by a Judge.

4. Examination of mental defective - (1) If it appears to any medical practitioner that any person is a mentally defective person, he may conduct or arrange for such person to be conducted to the hospital at Apia, there to be medically examined.

(2) In any case where it appears to such medical practitioner that such person cannot be so conducted without the risk of danger to himself or to the public, such medical practitioner may issue a warrant to any constable requiring him to ensure that such person is safely conducted to the hospital at Apia.

(3) On receipt of any such warrant, it shall be the duty of the constable to whom it is issued to so conduct, or to arrange for such person to be conducted as aforesaid, using the minimum of force necessary to ensure that such person is delivered safely and without delay to the said hospital.

(4) Immediately such person is so delivered to such hospital, it shall be the duty of the Director-General or of the Medical Superintendent of the hospital to arrange for such person to be examined by 2 medical practitioners nominated by the Director-General or whose names are included in a list of medical practitioners approved by the Director-General for the examination of persons alleged to be mentally defective persons. On completion of any such examination, a medical practitioner shall forward his report to the Director-General.

5. Procedure when reports made - On consideration of the reports of the medical practitioners, or of the other medical practitioner if the Director-General himself examined such person, the Director-General may either:

(a) Direct such person to be discharged; or

(b) Apply to a Judge for an order of medical custody.

6. Hearing of application - No order of medical custody shall be made except on examination of the person alleged to be mentally defective, and on production to the Court of the reports referred to in section 4 of this Ordinance, nor, unless the Court is satisfied that his detention in medical custody is necessary in his own interests or for the safety of other persons.

7. Order of medical custody - If the Court is satisfied on the examination of the person so alleged to be mentally defective, and on hearing such further evidence (if any) as the Court thinks necessary, that he is mentally defective and that his detention in medical custody is necessary in his own interests or for the safety of other persons, the Court may make an order of medical custody committing such person to medical custody in the charge of such person, in such place, subject to such conditions, and for such period, not exceeding 6 months, as the Court thinks fit.

8. Renewal, variation, or cancellation of order - Any such order may at any time and from time to time on a further application to the Court, and whether before or after the expiry thereof, be renewed for a further period, not exceeding 6 months, or may be varied, and the Court may at any time cancel such order.

9. Arrest and detention of persons committed to medical custody - Any person against whom an order of medical custody has been made shall submit to the terms of the order and to any treatment directed by any medical practitioner, and if such person absents himself from, or fails to attend, any place where he is required by such order to remain, or to present himself for treatment, he may thereupon be arrested by any constable or medical practitioner.

10. Arrest of person of unsound mind without warrant - Any person believed on reasonable grounds to be of unsound mind and to be dangerous to himself or others may be arrested without warrant by a constable or any other person, and shall be forthwith brought before a Judge or Magistrate, who may from time to time make such order for his custody as is thought fit, pending the making and determination of an application for an order of medical custody.

11. Insane persons not to be tried for offences - If any person on being charged with an offence is found to be of unsound mind so that he cannot understand the nature of the proceedings, he shall not be tried, but on the order of a Judge or Magistrate he shall be detained in prison or in some other place of security until the pleasure of the Minister of Justice, or in the case of a charge of murder or manslaughter the pleasure of the Head of State is known.

12. Detention of accused persons acquitted on ground of insanity - If any person on his trial for an offence is found to have been insane at the time of the commission of the offence he shall be found not guilty on the ground of insanity, and the Court shall order him to be detained in prison or in some other place of security until the pleasure of the Minister of Justice, or in the case of a charge of murder or manslaughter the pleasure of the Head of State, is known.

13. Discharge - (1) Except in the case of a charge of murder or manslaughter, a person shall not be detained under such an order for a longer period than 2 months, and may at any time be discharged by the Minister of Justice.

(2) In the case of a charge of murder or manslaughter any person so detained may be at any time discharged by the Head of State.

14. Orders of medical custody of criminal lunatics - (1) When any person is so detained, whether in the case of a charge of murder or manslaughter or otherwise, the Court shall have the same jurisdiction to make an order of medical custody as in the case of any other person of unsound mind.

(2) Any order of medical custody so made shall supersede the order for detention during the pleasure of the Minister of Justice or the Head of State, save that, in the case of a charge of murder or manslaughter, no person shall be discharged from custody except with the consent of the Head of State or become discharge by operation of law under this Ordinance.

15. Defence of insanity in criminal prosecution - (1) No person charged with any offence shall be acquitted on the ground of insanity unless the offence was committed by him while labouring under natural imbecility or disease of the mind to such an extent as to render him incapable of understanding the nature or quality of the act done by him, or of knowing that such act was wrong.

(2) A person labouring under specific delusions but in other respects sane shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act.

(3) Every one shall be presumed to be and to have been sane unless the contrary is proved.

PART II
VISITING BOARDS

16. Appointment of Visiting Boards - (1) The Minister shall appoint such Visiting Boards as may be necessary to carry out their functions under this Ordinance.

(2) Every Visiting Board shall consist of not less than 3 fit and proper persons, one of whom shall be a medical practitioner employed by the Department of Health. There shall be a Chairman of every such Board, who shall be a member of that Board appointed by the Minister.

17. Copy of order to be forwarded to Director-General - On the making of an order of medical custody pursuant to Part I of this Ordinance, the Registrar shall forward 2 copies of such order to the Director-General, who shall thereupon allocate the supervision of the personal welfare of the person in respect of whom such order was made to a Visiting Board, and shall forward a copy of the order to the chairman of such Board.

18. Functions of Boards - The supervision of the personal welfare of every person in respect of whom an order of medical custody has been made shall be the function of the Visiting Board to whom it has been allocated pursuant to the last preceding section, and in the exercise of such function the Board shall have and exercise the powers conferred on it by this Part of this Ordinance.

19. Visits to be made - (1) Not fewer than 2 members of the Visiting Board shall, together once at least in every 3 months, see and examine every person allocated to that Board, and may visit the place or places where such persons live.

(2) The members of a Visiting Board when visiting under the authority of this section any institution, house, or place may inspect every part thereof and every part of the grounds or appurtenances used or occupied therewith in or to which any person allocated to that Board lives or has access.

(3) The person in charge of such institution or the occupier of any place so visited by a Board and every officer or servant there employed commits an offence who conceals or attempts to conceal, or refuses or wilfully neglects to show any such part of the institution, house or place, or who does not, in every reasonable manner, assist the Board in seeing or examining any person living therein who has been allocated to it.

(4) The Visiting Board may make any visit on such day and at such hour of day or night, and for such length of time as may appear necessary to the Board to ensure the welfare of any person allocated to it.

20. Report of Board - (1) As soon as may be after seeing and examining any person allocated to it or visiting any institution, house or place, the Board shall report to the Minister on such examination or visit.

(2) Every such report shall contain:

(a) The name of the person examined or visited;

(b) The date and the time of the examination or visit;

(c) The views of the Board on the health, welfare and mental condition of the person examined, and the attention being given to him;

(d) The comments of the Board on the suitability and comfort of the place in which the person examined or visited is living;

(e) The names of the members of the Board making the examination or visit.

(3) Every such report shall be signed by the members of the Board making the report, and any member of the Board who disagrees with the views of the other members may make and sign on the report such further comments as he thinks fit.

21. Minister may give directions - On the consideration of any such report, the Minister may give any such directions as he shall think fit, not being inconsistent with the provisions of the order of medical custody or the provisions of this Ordinance, and in particular may:

(a) Direct that the Director-General or any medical practitioner shall see or examine the person reported upon;

(b) Direct that an application for the variation of any order of medical custody be made to the Court.

PART III
PROPERTY OF MENTALLY DEFECTIVE PERSONS

Administration After Order of Medical Custody

22. Notice to be sent to Public Trustee - On the making of any order of medical custody, the Registrar shall forthwith send notice of the order to the Public Trustee.

23. When Public Trustee to administer estate - (1) if and so long as no committee is in office under this Ordinance, the Public Trustee shall have the custody and administration of the estate of every person in respect of whom an order of medical custody is made.

(2) The powers, duties and functions of the Public Trustee under this section shall cease:

(a) When the person of whose estate he has the administration dies; or

(b) When a committee of the estate of that person is appointed; or

(c) When the order of medical custody in respect of that person is cancelled, and the cancellation embodies an order that he is able to manage his own affairs; or

(d) If the Public Trustee is satisfied that the person is able to manage his own affairs.

24. Appointment of committee after order of medical custody - (1) The Court may, on petition by the Public Trustee or any other person, appoint the Public Trustee or any other person or persons as the committee of the estate of any person in respect of whom an order of medical custody has been made.

(2) Any committee so appointed shall have the same powers, duties, and functions as if he had been appointed after inquisition by the Court in accordance with the provisions in that behalf hereinafter contained.

(3) Any committee appointed in pursuance of this section shall continue in office until the person of whose estate he is committee dies, or the order appointing him as such committee is rescinded by the (Court, notwithstanding the fact that the order of medical custody has been cancelled.

(4) The Court may at any time, on the petition of the person of whose estate a committee has been so appointed, or of the committee, or of any other person, rescind the order appointing the committee on proof that such person is of sufficient ability to manage his own affairs, and that the order of medical custody has been cancelled.

(5) The Court may at any time, on the petition of the person of whose estate. a committee has been so appointed, or of the committee, or of any other person, and on proof that there is good cause for so doing, make an order appointing any other person or persons as the committee of the said estate in lieu of the committee so appointed.

Administration after Inquisition

25. Inquisition - (1) The Court may, on the petition of the Public Trustee or of any other person, order an inquisition to be held as to whether any person alleged to be mentally defective, either in or out of Western Samoa, is mentally defective and incapable of managing his affairs.

(2) If the person so alleged to be mentally defective is in Western Samoa, the Judge shall personally examine that person touching his state of mind and his ability to manage his affairs, and for this purpose the Judge may make an order directing that person to attend before him at any time and place for examination, or directing any person having the custody of that person to bring him before the said Judge.

26. Scope of inquisition - The inquisition shall be confined to the question whether or not the person alleged to be mentally defective is mentally defective and is incapable of managing his affairs; and no evidence as to anything done or said by him, or as to his demeanour or state of mind, at any time being more than 2 years before the time of the inquisition shall be receivable in proof of mental defect, unless the Judge holding the inquisition otherwise directs.

27. Appointment of committee after inquisition - If any person is so found to be mentally defective and to be incapable of managing his affairs, the Court may appoint the Public Trustee or any other person or persons whom it thinks fit to be the committee of the estate of that person, and may at any time appoint any other person or persons to be the committee of the estate of any person so found to be mentally defective, in lieu of any committee already appointed.

28. Provision for committee of estate only - (1) Where, on any inquiry under Part I of this Ordinance or any inquisition, it appears that a person alleged to be mentally defective is incapable of managing his affairs, but does not require oversight, care, or control with respect to himself it may be specially so found and certified.

(2) When any person has been found to be mentally defective as aforesaid, the Court may at any time thereafter, on the petition of that person or of the committee of his estate or of any other person, and on proof that the person so found mentally defective is not subject to an order of medical custody, direct an inquisition to be held as to whether that person is still incapable of managing his affairs.

(3) Every such inquisition shall be held in the same manner, with all necessary modifications, as an inquisition under the provisions hereinbefore contained.

29. Costs of inquisition - The Court may order the costs, charges, and expenses of the presentation of any petition for an inquisition under this Ordinance, and of the execution of such inquisition, and of any proceedings consequent on any such inquisition, and of any application for the appointment of a committee, to be paid either by the party or parties presenting the petition or making such application, or by the party or parties opposing the same, or out of the estate of the person in respect of whom the inquisition is held or sought or application made, or partly in one way and partly in another, as the said Court in each case thinks proper.

Powers of Public Trust

30. Property of mental defective not to vest in Public Trustee - When the Public Trustee is appointed as the committee of the estate of a mentally defective person., or becomes authorised by this Ordinance to administer that estate, the estate shall not thereby become vested in the Public Trustee, but he shall be entitled to the possession and management of the same in accordance with the provisions hereinafter contained.

31. Powers of Public Trustee - The Public Trustee, being appointed as the committee of the estate of any mentally defective person, or being authorised by this Ordinance to administer that estate, may, without the leave of the Court, but subject to any order of the said Court to the contrary, do any of the following things:

(a) Take possession of all the property of that person;

(b) Lease or concur in leasing any property of that person for any term not exceeding 2 years (to take effect in possession within 6 months of the date of the lease), or from year to year, or for a weekly, monthly, or other like tenancy, or at will;

(c) Repair, and insure against fire or accident, any property of that person;

(d) Pay all rates, taxes, insurance premiums, or other outgoings payable in respect of the property of that person, or under any policy of insurance of any kind;

(e) Grant powers of attorney to any person in or out of Western Samoa to do any act or thing with respect to the property of such mentally defective person which the Public Trustee can do as committee of the estate of that person, or as authorised to administer that estate;

(f) Institute or defend, in his own corporate name or in the name of the mentally defective person, any action, suit, or other proceeding concerning the property of that person, and suffer judgement to go by default, or consent to any judgment, decree, or order in the action, suit, or proceeding, upon such terms as the Public Trustee thinks fit;

(g) Take criminal proceedings concerning the property of that person;

(h) Demand, receive, and recover all money payable or belonging to that person;

(i) Apply money belonging to that person, whether arising from real or personal property, and whether income or capital, in or towards the payment of any debt, obligation, or liabilities of that person, or incurred by the Public Trustee in exercise of the powers vested in him by this Ordinance;

(j) Surrender, assign, or otherwise dispose of, with or without consideration, any onerous property belonging to that person;

(k) Carry out and perform contracts entered into by that person before the Public Trustee was appointed as the committee of his estate or became authorised to administer it;

(l) Apply, in his discretion, and in such manner and to such extent as he thinks fit, any money belonging to that person, whether arising from real or personal property, and whether income or capital, for the maintenance of that person, or of the husband or wife of that person, or for the maintenance, education, or advancement of the children or grandchildren of that person.

32. Powers exercisable with sanction of Court - The Public Trustee, being appointed as the committee of the estate of a mentally defective person, or being authorised by this Ordinance to administer that estate may, with the sanction of an order of the Court, do any act in relation to that estate which the mentally defective person could do if he were not mentally defective.

33. Public Trustee to be subject to orders of Court - In the exercise of any of the powers conferred by this Ordinance upon the Public Trustee he shall be subject to any orders that may be made in the matter by the Court.

34. Certificate by Public Trustee as evidence of appointment as committee, etc. - A certificate under the hand of the Public Trustee, and sealed with his corporate seal, certifying that he has been appointed under this Ordinance as the committee of the estate of any person, or that he is authorised under this Ordinance to administer the estate of any person, and stating the date at which he was so appointed or became so authorised, and that such appointment or authority is still in force, shall, until the contrary is proved, be accepted by all Courts, officers, and other persons as sufficient evidence of the facts so certified and stated.

35. Capital money to form part of common fund of Public Trust Office - All capital money coming to the hands of the Public Trustee under the provisions of this Ordinance shall form part of the common fund of the Public Trust Office, and shall be entitled to the guarantee which is afforded to that common fund.

36. Contractual powers of person of whose estate a committee or administrator appointed - (1) No person of whose estate the Public Trustee, or any other person has been appointed the committee, or whose estate the Public Trustee is by this Ordinance authorised to administer, shall be capable, without the leave of the Court, of making any transfer, lease, mortgage, or other disposition of his property, or of any part thereof, or of entering into any contract, except for necessaries; and every such transfer, lease, mortgage, or other disposition, and every contract other than for necessaries, shall be voidable by that person or by the Public Trustee or other committee on his behalf.

(2) Nothing in this section shall affect the law relating to the validity of wills or other testamentary dispositions.

(3) Nothing in this section shall invalidate any transfer, lease, mortgage, disposition, or contract made or entered into by any such person if the other party thereto acted in good faith without knowledge that any committee had been so appointed or that the Public Trustee was so authorised to administer the estate.

37. Maintenance payable out of estate - All expenses incurred by the Public Trustee in respect of the maintenance of any mentally defective person, or the administration of his estate, shall be charged against and payable out of that estate; and, in addition, there shall be payable in respect of all money forming part of that estate, and coming under the control of the Public Trustee, the same commissions and other charges as are prescribed by regulations to be paid out of estates placed in the Public Trust Office.

38. Court may appoint committee other than Public Trustee - (1) The Court shall not appoint any person other than the Public Trustee as the committee of the estate of any person in pursuance of this Ordinance, unless it is proved to the satisfaction of the Court that there is some sufficient reason why such person should be so appointed in preference to the Public Trustee.

(2) When any application is made to the Court to appoint any other person than the Public Trustee of the estate of any person, notice of the application shall be given to the Public Trustee by the person making the same, and the Public Trustee shall be entitled to be heard on any such application.

(3) When any person other than the Public Trustee has been appointed committee of an estate under this Ordinance, that person shall have in respect of the estate such powers as the Court in the order so appointing him or in any subsequent order, directs.

(4) Any person so appointed may be required by the Court to give to the Public Trustee such security as the Court directs and approves for the due administration of the estate.

PART IV

MISCELLANEOUS

39. Letters written by mental defectives - (1) Every letter written by any person (in respect of whom an order of medical custody is in force and is, in pursuance of such order, in any institution or in any house or place) addressed to the Minister or other Member of the Executive Council or any Judge of the Supreme Court, shall be immediately forwarded unopened.

(2) The duty of so forwarding any letter shall lie upon the person in charge of the institution or upon the householder.

(3) Any officer or servant employed in any institution or house who is requested to forward any such letter, or has in his possession any such letter shall immediately deliver the same unopened to the person whose duty it is to forward it.

40. False or misleading certificate by medical practitioner - Every medical practitioner who wilfully makes any false or misleading statement in any certificate under this Ordinance, and every person who signs any certificate under this Ordinance in which he describes himself as a medical practitioner, not being such within the meaning of this Ordinance, commits an offence.

41. Neglect or ill-treatment of mentally defective persons - Every Superintendent, licensee, officer, nurse, attendant, householder, or other person having the oversight, care, or control of any mentally defective person, or employed in any institution, house, or place in which any such mentally defective person resides, who strikes, wounds, or ill-treats, or wilfully neglects, any such mentally defective person is guilty of an offence.

42. Sexual intercourse with a mentally defective female - (1) Every person is guilty of an offence who has or attempts to have sexual intercourse with any female who is detained under the provisions of this Ordinance, or is otherwise under oversight, care, or control as mentally defective.

(2) It shall be a good defence in any prosecution for an offence against this section if the defendant proves that at the time of the act committed he did not know and had no reasonable cause to believe or suspect that the female was so detained or was under oversight, care, or control as mentally defective.

(3) The consent of the female shall not be a defence in any prosecution for such offence.

43. Penalties - (1) Every person who is guilty of any act or omission in breach of this Ordinance which is not declared to be an offence, and for which no other penalty is expressly provided, is liable on conviction to a fine not exceeding $40.

(2) Every person who is guilty of an act or omission in breach of this Ordinance which is declared to be an offence is liable to a fine not exceeding $200, or to imprisonment for any term not exceeding one year.

(3) Every information shall be laid by the Director-General or by some other person to be specially authorised by him in that behalf in the particular case by writing under his hand.

44. Regulations - (1) The Head of State, acting by with the advice of Cabinet, may from time to time make regulations for carrying into effect the purposes of this Ordinance in all respects, and prescribing the duties of the Public Trust in connection with the management of the estates of mentally defective persons, and prescribing such forms as may be found necessary or convenient.

(2) When any forms are provided by regulations under this Ordinance, forms to the like effect may be used and shall be sufficient.

(3) It shall be the responsibility of the Minister to lay all regulations made under this section before the Legislative Assembly within 28 days of the making thereof if the Assembly is then in session, and if not, to lay such regulations before the Assembly within 28 days after the commencement of the next ensuing session.

45. New Zealand enactment to cease to be part of the law of Western Samoa - (1) As from the coming into force of this Ordinance, Part XII of the Samoa Act 1921 (NZ) shall cease to be part of the law of Western Samoa.

(2) Notwithstanding that the statutory provisions mentioned in the last preceding subsection shall have ceased to be part of the law of Western Samoa, all applications made, proceedings commenced, and orders made under the said provisions may be continued and completed, and shall ensure as though the said provisions had remained in force.

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The Mental Health Ordinance 1961 is administered in the Department of Health