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Legislative Assembly for the ACT: 2004 Week 08 Hansard (Tuesday, 3 August 2004) . . Page.. 3305 ..

Heritage, and Acting Minister for Health) (11.36), in reply: Mrs Cross makes a valid point when she says that sadly some people are unaware of the harm they may cause themselves or others. Therefore, steps have to be taken to protect their interests and the interests of other people. Mr Smyth said that the public interest outweighs other concerns, and he will keep close watch—as we all will—on how this proceeds. It is a difficult area. It has become apparent that while community care orders have been of benefit to most people who have required this involuntary support, a small number of people—and it is only a very small number of people that we have to attend to—with mental dysfunction require closer supervision than currently is the case.

The act presently does not allow for people who are suffering a mental dysfunction who are assessed to be at high risk of harm to themselves or others to be detained in treatment or care facilities until that risk is lessened. So we must move. Often the alternative for these people with mental dysfunction and very complex needs, and who may be assessed as being at high risk to themselves, has been the justice system. In recent times we have heard people in the justice system speaking out, critical of the lack of options for these people. This has come through because there has not been an appropriate legal framework to institute involuntary care and support commensurate to the risk the person presents to either themselves or the community. This bill now provides that appropriate legal framework.

The Mental Health Tribunal presently makes community care orders that include care and support, counselling, training and rehabilitation. The addition to the existing regime is treatment and medication. While most mental dysfunctions are enduring conditions, medication can provide relief to a person when their ability to regulate their emotions is seriously impaired and prolongs their own distress. The involuntary use of medication for the amelioration of mental dysfunction can only be implemented where that medication is properly prescribed by a doctor.

The most significant amendment in this bill is to give the Mental Health Tribunal the authority to make a restriction order that, in addition to a community care order, authorises that a person is detained in a stated community care facility. The Mental Health Tribunal can only make such an order if satisfied that it is in the interests of the person’s health or safety or public safety to do so.

The United Nations resolution on the protection of persons with mental illness and the improvement of mental health care describes the standard that is compatible with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights if a person’s liberties have to be limited to treat mental illness. Principle 17, relating to review bodies, states that the initial review and periodic reviews of a person subject to involuntary retention shall be by a judicial or other independent body. The proposed amendments meet these standards.

A person subject to a mental health restriction order will have that order, and the treatment and care delivered under that order, including detention, reviewed by the tribunal on a three-monthly basis. Community care orders and psychiatric treatment orders are reviewed by the tribunal on a six-monthly basis. The person can at any time request a review of the order by the tribunal and can also appeal directly to the Supreme Court. The care co-ordinator co-ordinates and administers the implementation of the orders. At present the act does not describe the functions of the care co-ordinator nor

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