Page 1721 - Week 06 - Thursday, 30 July 2020
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circumstances of the case. This amendment promotes the objects and principles contained in the act by ensuring that a person has a right to consent to treatment and that consumers receive treatment in a way that is least restrictive or intrusive to them.
Under section 80 of the act, police officers or authorised ambulance paramedics may currently apprehend a person and take them to an approved mental health facility for assessment if the police or ambulance officer believes, on reasonable grounds, that the person has a mental disorder or mental illness and has attempted, or is likely to attempt, suicide or inflict serious harm on themselves or others. This section is a rare example of legislation that can lead a member of the community to be deprived of their liberty on mental health grounds. For this reason, it is essential that sufficient safeguards are in place to balance what can be competing priorities of safety and liberty.
Should someone be apprehended under section 80, whilst it may be a relatively short period of time, it still represents a deprivation of their liberty and this may have longstanding impacts for their personal matters. When someone agrees that they require immediate health care or assistance, they should not be penalised for their help-seeking behaviour, and a decision to apprehend on those grounds is likely to be disproportionate. The bill seeks to create an additional threshold: that a police officer or authorised paramedic must be satisfied, on reasonable grounds, that there is an immediate risk of harm, the person requires immediate examination and the person does not agree to be examined.
This amendment reflects the urgency of situations often faced by police officers and ambulance paramedics and makes clear that a decision to apprehend is made on reasonable grounds. There is no expectation that police or paramedics conduct any form of mental health assessment. The additional requirement of not agreeing to an examination prior to apprehension allows a person to consent to examination and to be transported voluntarily for this examination, without the requirement for apprehension. This supports the assumption of capacity and consent for persons with a mental disorder or mental illness.
The amendments to section 80 also include provision for a person subject to an apprehension order to seek review by ACAT. The commencement of amendments to section 80 will be delayed to allow sufficient time for ACT Policing and the ACT Ambulance Service to provide education and training to their officers regarding this change.
The purpose of the amendments regarding affected persons are twofold: firstly, the right for an affected person and the Victims of Crime Commissioner to provide their views to the ACAT when orders are being made, and, secondly, the rights of affected persons to the disclosure of information about a forensic patient. Currently, the eligibility to access these rights is dependent on a person being subject to a forensic mental health order.
The amended definition is intended to include all persons who arrive at ACAT through a criminal justice pathway, regardless of the type of order that is made under the act. This will allow affected persons to have access to the affected persons register
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