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Legislative Assembly for the ACT: 2004 Week 08 Hansard (Tuesday, 3 August 2004) . . Page.. 3303 ..

It is of some concern that we have not been able to see a full human rights investigation of this bill, or the assurance of the Attorney General that the bill does not infringe human rights by way of compatibility statement, as this bill was tabled before 1 July. At first inspection, the bill as proposed appears to meet the criteria set out in international instruments. Of particular relevance are the Declaration on the Rights of Mentally Retarded Persons and the principles for the protection of persons with mental illness and for the improvement of mental health care.

The principles, which were adopted by the General Assembly of the United Nations on 17 December 1991, contain a number of elements regarding treatment for mental health problems. There are some conditions that I believe are of particular interest. Any decision that a person lacks legal capacity must be established by an independent and impartial tribunal established by domestic law. There should be a right to appeal such a decision to a higher court. Determination that a person has a mental illness shall be made in accordance with internally accepted medical standards and every patient has the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others. Of special note is principle 16, which relates to involuntary admissions. It states:

A person may (a) be admitted involuntarily to a mental health facility as a patient; or (b) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorised by law for that purpose determines, in accordance with Principle 4, that the person has a mental illness and considers:

(a) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

(b) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit and retain that person is likely to lead to a serious deterioration in his or condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

The bill appears to incorporate these ideas into the assessment and treatment of mentally dysfunctional people. It is important to note that the first objective of the act, stated in section 7, is:

to provide treatment, care, rehabilitation and protection for mentally dysfunctional or mentally ill persons in a manner that is least restrictive of their human rights;

With the passage of the Humans Rights Act 2004, the provisions of the legislation must be interpreted in a manner that is most consistent with the person’s human rights. We also need to be aware that international human rights thinking in the area of working with people with mental dysfunction is still developing. The most recent report of the Secretary-General to the UN General Assembly on the progress of efforts to ensure the full recognition and enjoyment of the human rights of persons with disabilities questions whether the principles are adequate for the protection of human rights. Section 47 of the report states:

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