Page 1578 - Week 05 - Thursday, 5 May 2016
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provided to the Health Directorate has been clear that a restrictive environment such as the secure mental health unit should have legislation to support and guide its operation and that the day-to-day management of the unit should not rely on existing law and common law constructs. This is the purpose of this bill.
The bill has been developed through an extensive policy development process which has involved desktop-based research of interstate and international practice, detailed conversations with colleagues in Tasmania and Victoria and discussions with current mental health clinicians in the ACT. Officials of my directorate have also visited comparable, albeit bigger, facilities in New South Wales and Queensland to understand their operation and have discussed with clinical staff in those jurisdictions their experiences in the operation of such facilities.
Draft iterations of the bill have been discussed at length with senior mental health clinicians in ACT Health and other relevant government agencies such as the Justice and Community Safety Directorate. The bill has also been considered by statutory officials such as the human rights commissioner, the Health Services Commissioner and the Public Advocate. Earlier drafts of the bill have also been discussed with organisations with specific expertise in this field, such as the ACT Mental Health Community Coalition and Mental Health Consumers ACT. These contributions have been of significant assistance to the drafters of this bill. I would like to place on record my thanks to those who have assisted in this work.
Preparing a bill of this nature has been a complex task. People who are considered to be clinically appropriate for the secure mental health unit are already subject to legal mechanisms that facilitate their detention and they will have severe mental illness. They are amongst the most vulnerable in our community and this legislation, amongst other things, seeks to protect their rights and ensure that any restrictions that they face on their liberty have a clear utility, are not punitive and are proportionate to the risks that are presented.
The bill addresses subject matter which involves competing rights and engages the liberal philosophical tradition about the protection of the individual from excessive use of power on behalf of the state and balancing the rights of the individual against the interests and rights of the wider community. As such this bill attempts to strike a balance between these competing priorities and ensures that any restriction placed on the individual at the unit are proportionate to the issues and risks faced. Striking that balance is as much about exercising judgement as about being able to apply any hard-and-fast rules, and it is around these issues of balance that comments on the bill have been particularly useful.
These issues of balance of rights and proportionate restrictions are addressed in such matters as powers of search and the management of contraband. Considering this balance, it is noted that, as the manager of the secure mental health unit, ACT Health has a responsibility to protect the people who receive care in the facility as well as the people who work there and visit there. It is against this backdrop that the balance of rights and interests is considered.
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