Page 3972 - Week 13 - Thursday, 17 October 1991
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MR STEFANIAK (4.57): I move:
Page 5, line 20, paragraph 13(1)(n), omit the paragraph, substitute the following paragraph: "(n) to protect the rights of forensic patients;".
Members will see that the current paragraph (n) is one of the duties of the community advocate. One of his functions will be to represent forensic patients before the tribunal or any court. That can cause problems because it necessitates the community advocate representing forensic patients before the tribunal or before any court. That does, in the view of the community groups, impose quite a burden on an already very much overworked community advocate. Indeed, in many instances it is simply not necessary.
By amending the Bill along the lines I have suggested - to protect the rights of forensic patients - it still imposes the proper duty on the community advocate, and included in that duty will be, when appropriate, representation of forensic patients before the tribunal or before any court. That does not make it mandatory on the community advocate to do so. Accordingly, I think that is a more proper function for the community advocate, rather than mandatory representation before the tribunal or any court.
MR COLLAERY (4.59): I do not read it that way, with respect to my colleague Mr Stefaniak. I believe that the amendment he seeks actually narrows the protection for forensic patients. In fact, I would worry about a pejorative term such as a mandatory requirement to protect the rights of forensic patients. In all international documents that I have read there is a very heavy avoidance of terminology that can result in states or governments or persons being alleged to be negligent when the rights of patients sometimes are breached.
The fact is that the word "represent" is broad. It has been well interpreted in law. It means, in the commonly understood common law, powers to delegate, and there are specific delegations in the Bill. The advocate has to represent; Ministers have to represent, but they do not personally go and represent issues. Obviously, if they believe that the advocate has to go and represent everyone before a tribunal or court, they are wrong.
There is a very strong anti-lawyer flavour in the comments from the community. I can understand why; I appreciate why. They do not want to lawyerise this process. They see the word "represent" as feeding the lawyerisation of this role. They believe that the advocate will interpret it as meaning that he or she has to get a lawyer to protect the rights and go before a tribunal or any court.
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