Page 1541 - Week 05 - Thursday, 15 May 2014
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Changes in the human rights context include the advent of the ACT Human Rights Act 2004 and the Australian government’s ratification of the United Nations Convention on the Rights of People with Disabilities in 2008. The most significant change happening in mental health internationally is the inclusion of decision-making capacity as a criterion to decide whether people make their own decisions about treatment.
Decision-making capacity is a familiar concept as the basis for deciding guardianship orders. In the ACT risk will continue to be considered but it will need to be at a high level if it is to override an assessment that the person has the capacity to make their own decision.
Similar changes are happening across Australia and elsewhere in the world. In the ACT the proposed amendments provide that the operation of the decision-making capacity criterion will be kept under scrutiny and formally reviewed after three years of operation of the act. Other proposed changes which will increase the consumer’s voice in their own treatment include legal recognition of advanced consent directions and the opportunity to appoint a nominated person who knows the person’s wishes and can advocate for them when they become unwell.
Advance consent directions are an agreement made with the treating team when a person is well and has capacity about the treatment they want and do not want if or when they become unwell. In addition, people who lack decision-making capacity at the time of treatment but who do not refuse the treatment will be treated under guardianship or power of attorney. These provisions avoid placing a person on an involuntary mental health order when they are not refusing treatment.
Other changes support a closer working relationship between clinicians, carers and consumers in delivering mental health services. Carers often have a big role when a family member has a mental illness, particularly if the illness is ongoing or involves repeated episodes of illness. Carers need support including information to enable them to provide safe and effective care. It can be challenging to adequately support carers and at the same time provide necessary protection for a consumer’s right to privacy. We believe the new provisions get this balance right.
New provisions are proposed for people with mental illness who are involved in the justice system either because their illness leads to offending behaviour or because they have become ill while detained. The provisions will help to ensure equal access to treatment for this often stigmatised group and provide greater oversight of treatment.
New forensic mental health orders will provide a high level of oversight including additional opportunity for review by the ACT Civil and Administrative Tribunal where a person’s illness results in offending behaviour that constitutes a significant risk to the public.
Legal protections currently afforded to victims of crime have not previously been available in the ACT to those affected by the offending behaviour of someone found unfit to plead or not guilty because of mental impairment.
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