Page 2068 - Week 07 - Thursday, 20 August 2020
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In my briefing on this bill, for which I thank the minister, I raised concern about giving the chief psychiatrist lawmaking powers. I was also concerned that the chief psychiatrist is effectively given the power to adopt laws from other jurisdictions. This lawmaking power and any scrutiny thereof is removed from the Assembly because the guidelines are issued only by way of notifiable instruments. I also reiterate that compliance with guidelines is mandatory, so they amount to something more than a guideline. Perhaps they are more like directives and should be called as such.
I am concerned that this approach escapes the scrutiny of the Legislative Assembly. I am not convinced that this is a proper approach under the Westminster system of lawmaking. I note that the Assembly’s legislative scrutiny committee is also unconvinced.
I still do not understand why laws of this kind, made on the expert advice of the chief psychiatrist, could not be subject to the Assembly’s scrutiny in our system of democracy. At the very least, these guidelines should be made by way of disallowable instrument so that the Assembly at least has the opportunity to scrutinise them.
The minister has assured me that the policy is largely consistent with that of other jurisdictions. In the case of New South Wales, an official does not have this lawmaking power but the health department can and does make mandatory policy directives. The Northern Territory does not give anyone the power to make guidelines or directives.
Finally, the bill includes a review provision. The review contained in the act is repeated and there is to be a review of the material introduced by this bill. Subject to my reservations about the removal of lawmaking power from the Assembly and the reservations of the scrutiny committee, this bill does pave the way for an improvement in the way that we deal with mental health patients in the ACT. Perhaps the lawmaking powers of the chief psychiatrist will be part of the review process further down the track. Having said that, the Canberra Liberals will support the bill.
MS STEPHEN-SMITH (Kurrajong—Minister for Aboriginal and Torres Strait Islander Affairs, Minister for Children, Youth and Families and Minister for Health) (11.57): This bill is an important piece of work to progress the ACT government’s agenda of better health care when and where Canberrans need it, and, indeed, our support for human rights. I thank Mr Rattenbury for bringing this bill to the Assembly.
The objective of the Mental Health Act 2015 was to promote the capacity of people with a mental disorder or mental illness to determine and participate in their assessment and treatment, care or support, taking into account their rights in relation to mental health under territory law. This act brought the territory’s mental health legislation into line with the Human Rights Act 2004 and the United Nations Convention on the Rights of Persons with Disabilities. The act also included requirements to undertake reviews into section 85 of the act and involuntary orders made under the act.
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