Page 4106 - Week 13 - Thursday, 6 December 2007
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or activities. Nor can they be regarded as having these conditions merely because of their sexual preference or orientation or because they engage in taking alcohol or other drugs. Most Australian state and territory mental health laws now have similar sections that describe what are not to be regarded as mental health conditions in mental health law.
While the 1994 explanatory memorandum to the act makes it clear that “mental dysfunction” is defined to include “mental illnesses” and hence technically “mental illness” is encompassed in the section, this intention is not clearly expressed in the wording of the act. The amendment bill removes any doubt that section 5 applies to persons who are mentally ill. I propose that the section 5 heading and the first paragraph be amended to read “Persons not to be regarded as mentally dysfunctional or mentally ill”. This clarifies the intent of the section.
Clauses 8 to 14 address the intention of the act to provide for ministerial agreements to be made between the ACT and the other states and territories relating to the interstate application of mental health laws. Most states and territories have similar provisions in their mental health legislation. The intention of these provisions is to make the borders of the jurisdictions more transparent for the movement of people subject to mental health orders. Prior to these provisions, it was very difficult for mental health orders issued in one jurisdiction to be recognised in another. For the ACT, this made accessing specialist mental health services in Sydney or transferring the involuntary care of a person who wished to move to another state very problematic.
The ACT currently has four ministerial mental health interstate agreements, covering Queensland, New South Wales and Victoria. The interstate agreement with New South Wales allows follow-up of people subject to community mental health orders across the border by the treating mental health teams of the issuing jurisdiction. The legislation provides for the Mental Health Tribunal to make psychiatric treatment orders for the care of a person under their jurisdiction. The government recently received legal advice that a PTO is defined as a custodial order in part 5 of the act—interstate applications of mental health law.
In the ACT, psychiatric treatment orders provide the functions of both the custodial in-patient orders and the non-custodial community treatment orders of other jurisdictions. The legal advice the government has received suggests this is not possible in relation to part 5 of the act because in this part a PTO is not a “community” mental health order that the tribunal can make. These amendments will address this issue. This also impacts on the effective use of the ACT-New South Wales mental health interstate agreement.
The amending clauses in the bill remove reference to custodial and non-custodial ACT mental health orders and replace them with the term “psychiatric treatment order”. This makes the original intention clear and enables the community treatment order section of the ACT-New South Wales mental health interstate agreement to be used. Without the amendments, section 48M of the act and the involuntary community treatment sections of the interstate agreements are unusable.
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