Page 2070 - Week 07 - Thursday, 20 August 2020
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The modern understanding of mental health recognises that mental health consumers can be both a vulnerable population that needs protection and a group that is at particular risk of having their rights infringed. This bill makes our mental health legislation a closer reflection of these two concepts, and in doing so upholds our responsibility as a government and an Assembly to ensure that members of our community receive the treatment they need in the way they need it.
Our mental health legislation is person-centred with a focus on the individuality of the consumers and the need to be responsive to an individual’s specific needs and circumstances. This bill takes this focus forward to ensure that the individuals subject to this legislation know their rights and what to expect as they navigate their treatment, care and support. A simple but important change to section 77 means that more consumers will be able to make choices in relation to how and when they receive care. A consumer who is subject to a contravention order will be able to consent to undergo treatment in their own home or another place of their choosing, rather than being transported to a mental health facility. This is consistent with the preferred compassionate approach of those providing this treatment, while ensuring that the person providing the treatment is able to assess if the place is a suitable place for the treatment to be given.
Another important step that we are taking to embed the human rights of the consumer into the legislation is amending the emergency apprehension power to be abundantly clear that the emergency apprehension power should not be exercised if a consumer consents to treatment. In making this change we are articulating the principle that mental health consumers are entitled to receive treatment, care and support in a way that is least restrictive to them. It embeds the assumption of decision-making capacity that is set out in the principles of the act, while also acknowledging the role that the government plays in protecting the right to life, by having a framework in place when it is necessary to support people to return to a place of wellness.
In addition to this change to the emergency apprehension power, the bill broadens the powers of ACAT to review emergency apprehensions. The act recognised that mental health consumers are not the only vulnerable population that require protection and recognition. In circumstances where the actions of a mental health consumer cause harm to another member of our community, that person should not be disadvantaged because the mental health consumer is appropriately diverted from the criminal justice pathway to a mental health pathway. This disadvantage can occur because no crime is established and therefore the victims of crime scheme does not apply. Instead, the act created a register of persons affected by the actions of a mental health consumer. The bill amends the act to ensure this captures all appropriate matters by reference to their origin in the criminal justice system, rather than the type of order applied for or made. This ensures that affected persons can obtain relevant information about the location of the mental health consumer to enable them to take steps for their own safety, and for the ACT Civil and Administrative Tribunal to hear and consider the perspective of the affected person when making orders.
This is a delicate balance, noting that in these circumstances both parties are vulnerable and require a level of protection. For the mental health consumer, one way
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