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THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
MENTAL HEALTH BILL 2015
EXPLANATORY STATEMENT
Presented by
Mr Simon Corbell
MLA
Minister for Health
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Table of Contents
Glossary.................................................................................................iii
2. What terminology, and ACT, Australian, and international law, are key to understanding the Bill and its Explanatory Statement?................................1
‘Amended Act’.....................................................................................1
‘People with mental illness/es and/or disorder/s’.........................2
‘Subject person’.......................................................................................2
Rights provided by ACT, Australian, and international law..........2
Bill’s Objects and Principles.................................................................4
Right to the highest attainable standard of mental health.............................................6
3. What is this Bill about................................................................8
4. What makes the Bill compatible with the Human Rights Act 1994? (ACT)..........................11
ACT Human Rights Act compatibility test......................................11
Apprehension powers.......................................................................12
Transfer powers.................................................................................13
Involuntary treatment, care and support powers........................14
Psychiatric surgery and electroconvulsive therapy clauses........21
Clauses on electroconvulsive therapy and related safeguards.........................................................21
Table of Contents (continued)
Powers to inspect private psychiatric facilities.............................30
5. What are the Bill clauses about?...........................................32
Chapter 1 Preliminary.......................................................................32
Chapter 2 Objects and important concepts...................................32
Chapter 3 Rights of people with mental disorder or mental illness.................................32
Chapter 4 Assessments....................................................................33
Chapter 5 Mental health orders......................................................33
Chapter 6 Emergency detention.....................................................33
Chapter 7 Forensic mental health...................................................38
Chapter 8 Correctional patients......................................................38
Chapter 9 Electroconvulsive therapy and psychiatric surgery....38
Chapter 10 Referrals by courts under Crimes Act and Children and Young People Act..................................46
Chapter 11 ACAT procedural matters.............................................47
Chapter 12 Administration..............................................................47
Chapter 13 Private psychiatric facilities........................................47
Chapter 14 Mental health advisory council...................................51
Chapter 15 Interstate application of mental health laws.............51
Chapter 16 Notification and review of decisions..........................59
Chapter 17 Miscellaneous................................................................59
Chapter 18 Repeals and consequential amendment...................59
Chapter 40 Transitional....................................................................60
Schedule 1 Reviewable decisions......................................................65
Schedule 2 Legislation amended.....................................................67
Dictionary...........................................................................................78
Glossary
This Glossary is complemented by this Explanatory Statement’s 2. What terms, ACT legislation, and international instruments, are key to understanding the Bill and its Explanatory Statement?, at pages 2 to 7, inclusive.
‘Amended Act’: Mental Health (Treatment and Care) Act 1994 (ACT) as it will be once amended by the Mental Health (Treatment and Care) Amendment Act 2014 (ACT) and by Schedule 2, Part 2.1, of the Mental Health Bill 2015.
CAT: United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment <http://www.legislation.act.gov.au/updates/humanrights/humanrights.asp
>.
CEDAW: United Nations Convention on the Elimination of All Forms of Discrimination Against Women <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx
>.
CERD: United Nations Convention on the Elimination of All Forms of Racial Discrimination <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx
>.
CESCR: International Covenant on Economic, Social and Cultural Rights <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
>.
CRC: United Nations Convention on the
Rights of the Child <http://www.ohchr.org/en/professionalinterest/pages/crc.aspx
>.
CRPD: United Nations Convention on the Rights of Persons with Disabilities <http://www2.ohchr.org/english/law/disabilities-convention.htm
>.
CCPR: International Covenant on Civil and Political Rights <http://www.legislation.act.gov.au/updates/humanrights/humanrights.asp
>.
‘Human Rights Act’: Human Rights Act 2004 (ACT) <http://www.legislation.act.gov.au/a/2004-5/default.asp
>.
‘Legislation Act’: Legislation Act 2001 (ACT) <http://www.legislation.act.gov.au/a/2001-14/default.asp
>.
‘Mental Health Act’ or ‘current Act’: Mental Health (Treatment and Care) Act 1994 (ACT) <http://www.legislation.act.gov.au/a/1994-44/default.asp
>.
‘Mental Health Amendment Act’ or ‘Amendment Act’: Mental Health (Treatment and Care) Amendment Act 2014 (ACT) <http://www.legislation.act.gov.au/a/2014-51/default.asp
>.
1. Introduction
1.1 This Explanatory Statement is on the Mental Health Bill 2015 (‘the Bill’) of the Australian Capital Territory (ACT).
1.2 Apart from this segment, 1. Introduction, the Explanatory Statement is comprised of the following four segments:
• 2. What terminology, and ACT, Australian and international law, are key to understanding the Bill and its Explanatory Statement? This outlines the terms and law that most facilitate comprehension of the Bill and its Explanatory Statement.
• 3. What is the Bill about? sketches the Bill’s structure and the main social advances that culminated in the Bill.
• 4. What makes the Bill compatible with the ACT Human Rights Act 1994? notes how those clauses of the Bill that limit human rights codified in the Human Rights Act 1994 (ACT)[1]
are, nonetheless, compatible with that Act.
• 5. What are the Bill clauses about? summarises the meaning of
each of the clauses, in the order in which they appear in the Bill.
2. What terminology, and ACT, Australian and international law, are key to understanding the Bill and its Explanatory Statement?
‘Amended Act’
2.1 This Explanatory Statement uses ‘amended Act’ to denote the Mental Health (Treatment and Care) Act 1994 (‘the Act’ or ‘the current Act’), as it will be once it is amended by the:
a. Mental Health (Treatment and Care) Amendment Act 2014 (‘the Amendment Act’),[2]
upon its commencement; and
b. Bill Schedule 2 (Legislation Amended),[3] Part 2.1 (Mental Health (Treatment and Care) Act 1994), upon commencement of the Bill’s enactment, if the Bill is enacted.
2.2 Should the Bill be enacted, its clause 2 will commence the Mental Health Act 2015 immediately after commencement of the Amendment Act. The Amendment Act will commence on 12 November 2015, as per its section 2(2).
2.3 This Explanatory Statement uses ‘section’ to denote a relocated provision and ‘clause’ to denote a provision that originated in this Bill. It is necessary to distinguish between the two, in this way, because Bill Schedule 2, Division 2.1.2, relocates sections of the amended Act into the 2015 Act.
‘People with mental illness/es and/or disorder/s’
2.4 The Explanatory Statement recurrently deploys the phrase ‘people with mental illness/es and/or disorder/s’, because many of the people who will be subject to the Bill will have:
a. more than one mental illness or one mental disorder; or
b. plural mental illnesses and plural mental disorders; or
c. one mental illness and one mental disorder; or
d. one mental illness and no mental disorder or vice versa;
or
e. one mental illness and plural mental disorders or vice
versa.
2.5 The meanings of ‘mental illness’ and ‘mental disorder’, here, are those respectively supplied by sections 10 and 9 of the Amendment Act.
‘Subject person’
2.6 ‘Subject person’ is used throughout this Explanatory Statement, for the sake of brevity. This is because ‘person receiving the medication’, ‘person being transferred’, and so on, are unnecessarily cumbersome, whenever the Explanatory Statement need only indicate that the person meant is the subject, not the actor, of an action provided for by a clause of the Bill.
2.7 ‘Subject person’ is also employed in preference to ‘health consumer’. The latter is often used in literature about health service recipients.[4] However, it would seems to deny or obscure the reality of any person who has involuntarily received, is involuntarily receiving, or is about to involuntarily receive, services ordered by a court or tribunal under mental health legislation.
Rights provided by ACT, Australian, and international law
2.8 This Explanatory Statement recurrently refers to human rights supplied by the ACT Human Rights Act, Australian common law, and international law. These rights are fundamental to the Bill’s interpretation, for three main reasons.
2.9 One, Australia has ratified all the international human rights instruments known as ‘treaties’ cited in this Explanatory Statement.[5]
Australian common law holds that those treaties are binding throughout Australia,[6] including in the ACT, in the exercise of any functions, under the enactment of any ACT bill, including the Mental Health Bill 2015.[7]
2.10 Two, the rights in those treaties also apply in the Bill’s interpretation, via section 30 of the Human Rights Act. Section 30 reads: ‘So far as it is possible to do so consistently with its purpose, a territory law must be interpreted in a way that is compatible with human rights’ (emphasis added).[8]
2.11 Three, section 139 of the Legislation Act 2001 (ACT)[9]
dictates that the interpretation of any ACT Act that best achieves the Act’s purpose is to be ‘preferred to any other’, irrespective of whether the interpreted Act expressly states its purpose.
2.12 Four, it is a well-established rule of statutory interpretation in Australian common law that unless legislation curtails a fundamental right or freedom in ‘unmistakable and unambiguous language’, than the legislation is to be interpreted as not curtailing that right or freedom.[10]
Bill’s Objects and Principles
2.13 Of all the Bill’s provisions, its sections 5 (Objects) and 6 (Principles) most manifest the Bill’s purposes.[11]
2.14 As is clearly explained in the High Court of Australia decision, Carr v The State of Western Australia [2007],[12] the objects of a statute can be used to resolve uncertainty and ambiguity in that statute’s interpretation. Further, section 6 dictates that the nine Principles that it enunciates will be applied to the exercise of all the Act’s functions and ‘taken into account’ in ‘exercising’ any one of them. Therefore, if the Bill is enacted, it will be incumbent on anyone exercising a power or discretion, or fulfilling a duty, under the enactment, to do so in a manner that heeds these Objects and Principles.
2.15 Many of the Bill Objects are grounded in rights in the ACT Human Rights Act and in international instruments. For instance the Bill’s section 5(a) Object is to ‘promote the recovery of people with a mental disorder or mental illness’. It closely aligns with Human Rights Act section 9(1) (right to life), which is sourced from Article 6(1) of International Covenant on Civil and Political Rights (‘CCPR’). The section 5(a) Object is reinforced by that CCPR Article, as well as Article 6 of the Convention on the Rights of the Child (‘CRC’) and Article 10 of the Convention on the Rights of Persons with Disabilities (‘CRPD’).
2.16 By way of another example, the Bill’s section 5(b) Object is 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 Object closely aligns with several rights of the Human Rights Act.
2.17 These include Human Rights Act section 10 (Protection from torture and cruel, inhuman or degrading treatment etc.), which is sourced from CCPR Article 7. The interpretation of the Bill’s section 5(b) Object in compliance with section 10 is, therefore, reinforced by CCPR Article 7, as well as Articles 1 to 3, inclusive, and 13 to 16, inclusive, of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and CRC Articles 37 and 39 and CRPD Article 15.
2.18 The section 5(b) Object is also in close alignment with section 16(2) (Freedom of expression) of the Human Rights Act and is reinforced by CCPR Articles 19(2) and (3), from which section 16(2) is sourced, as well as Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), CRC Articles 12 and 13, and CRPD Article 21.[13]
2.19 The Principles provided by section 6 are of two types. Sections 6(a) to 6(i), inclusive, each supply a ‘right’ of a ‘person with a mental disorder or mental illness’. For instance, section 6(f)(i) states that each person has a ‘right to access services that are sensitive and responsive to the person’s individual needs, including in relation to age, gender, culture, language, religion, sexuality, trauma and other life experiences’.[14]
2.20 The section 6(j) Principle differs in that it specifies 13 actions that services to people with mental illness/es and/or disorders ‘should’ do. For example, section 6(j)(viii) commands that such services ‘be provided in a way that ensures that the person is aware of the person’s rights’.[15]
2.21 Sections 6(f)(i) and 6(j) are clearly steeped in, among other provisions of international law, the right to freedom of expression supplied by Human Rights Act section 16(2),[16] sourced from CCPR Articles 19(2) and (3) and additionally reinforced by CRPD Article 9[17].
2.22 All of the section 6 Principles also have deep roots in the right to ‘the highest attainable standard of physical and mental health’.
Right to the highest attainable standard of mental health
2.23 The United Nations (UN) Special Rapporteur on this right has observed that it has migrated ‘from the margins to the human rights mainstream’[18]
.[19] It was established by Article 12 of the International Covenant on Economic, Social and Cultural Rights (CESCR), in 1996, and has been codified since in CERD Articles 5(e)(iv) and 5(d)(vii); Articles 11(1)(f), 12, and 14(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); in CRC Article 24 for all children; and in CRC Articles 3(3), 17, 23, 25, 32 and 283 (3), 17, 23, 25, 32 and 28 for especially vulnerable groups of children[20].
2.24 There is much authoritative case law bearing out that the right to the highest attainable standard of physical and mental health is incorporated in the right to life and the freedom from inhuman or degrading treatment, declared by sections 9(1) and 10 of the Human Rights Act, respectively.[21] For instance, the European Court of Human Rights has held that states have violated the freedom from inhuman or degrading treatment, by failing to deliver:
a. health treatment to a patient with mental illness;[22]
b. immediate health treatment to a person injured while being arrested;[23]
c. health treatment to an ill prisoner;[24] and
d. prenatal genetic testing[25].
2.25 Further, many countries’ most superior courts have found the right to life incorporates a right to health. These include the Columbian Constitutional Court[26] and the respective Supreme Courts of India,[27] Nepal,[28] Bangladesh,[29] Pakistan,[30] and Brazil[31].
2.26 In a case regarding the death of an involuntary psychiatric in-patient, the United Kingdom House of Lords held in Savage v South Essex Partnership NHS Foundation Trust (2008)[32]
that pursuant to the right to life:
a. health authorities have an ‘over-arching obligation to protect the lives of patients in their hospitals’.[33]
b. hospitals have an ‘operational obligation’ to take all reasonable steps to prevent the suicide of any patient they know, or ought to know, is at a ‘real and immediate’ risk of suicide and ‘[i]f they fail to do this...there will...be a violation of the operational obligation under article 2 [right to life of the European Convention on Human Rights][34]
to protect the patient’s life’.[35]
c. health authorities are obliged to have ‘systems in place to
provide access to necessary health care’ and ‘an
obligation actually to provide
it’[36] (emphasis added).
2.27 In 2012, the United Kingdom Supreme Court ruled in Rabone v
Anor v Pennine Care NHS Foundation Trust that this operational duty to
protect a patient’s health and safety is also owed to voluntary
psychiatric patients. In doing so, the Court affirmed that this duty to protect
patient safety is pursuant to the right to
life.[37]
3. What is this Bill about?
3.1 Most of the provisions of the current Mental Health Act commenced in 1997.[38]
Since then, people with mental illness/es and/or disorder/s have becomes increasingly less marginalised by their societies, at least throughout most of the economically developed world, including the ACT.[39]
This has occurred at a time of improved responsiveness to people with mental illness/es and/or disorder/s, in the disability rights movement,[40] community development,[41] psychology,[42] psychiatry,[43] ethics,[44] and the law[45].[46]
3.2 Accordingly, in 2006, the ACT Government launched a public review of the Act lead by the ‘Review Advisory Committee’. The Committee’s membership and activities are described in the Explanatory Statement on the Mental Health (Treatment and Care) Amendment Bill 2014 (ACT) (‘Amendment Bill’).[47]
That Bill[48] was the first to result from the Review. The Legislative Assembly for the ACT (‘the Legislative Assembly’) passed it, on 30 October 2014.
3.3 Enactment of this second Bill, the Mental Health Bill 2015, will complete the legislative reforms that the Review determined necessary.[49]
3.4 More specifically, this second Bill will, if enacted, provide in its Chapter 1 (Preliminary) that the Bill’s enactment will be entitled the Mental Health Act 2015 and that the Act will commence ‘immediately after commencement’ of the Mental Health (Treatment and Care) Amendment Act 2014 (‘the Amendment Act’). The Amendment Act will commence, on 12 November 2015.[50]
3.5 The Mental Health Bill 2015 will also relocate amended Act sections:
a. 5 to 13, inclusive, into Chapter 2 (Objects and important concepts) of the Mental Health Act 2015.
b. 14 to 32, inclusive, into Chapter 3 (Rights of people with mental disorder or mental illness).
c. 33 to 36, inclusive, and 36A to 36M, into Chapter 4 (Assessments).
d. 36N to 36ZQ, inclusive, into Chapter 5 (Mental Health Orders).
e. 37, 38, 38A, 40, 41, 41AA, 42 and 45 into Chapter 6 (Emergency Detention).
f. 48S to 48ZZH, inclusive, into Chapter 7 (Forensic mental health).
g. 48ZZI to 48ZZR, inclusive, into Chapter 8 (Correctional patients).
h. 68 to 75, inclusive, into Chapter 10 (Referrals by courts under Crimes Act and Children and Young People Act).
i. 76 to 87, inclusive, into Chapter 11 (ACAT procedural matters).
j. 112 to 122J, inclusive, into Chapter 12 (Administration).
k. 139 to 139C, inclusive, into Chapter 14 (Mental health advisory council).
l. 139CR to 139CT, inclusive, into Chapter 16 (Notification and review of decisions).
m. 139D to 147, inclusive, into Chapter 17 (Miscellaneous).[51]
3.6 Each section named above addresses the topic indicated by the title of that Chapter into which it will relocate upon enactment of the Bill.
3.7 The Bill also provides for clauses that clarify the provisions, and improve the safeguards, on:
a. the rights and other interests of persons subject to emergency detention, including how they are dealt with during that detention and how they are released from it, via Bill Chapter 6 (Emergency detention).
b. the necessary applications and approvals processes, and consent for, administration of electroconvulsive therapy and psychiatric surgery, via Bill Chapter 9 (Electroconvulsive therapy and psychiatric surgery).
c. the delivery of services by private psychiatric facilities, via Bill Chapter 13 (Private psychiatric facilities).
d. the apprehension, transfer, and mental health treatment, care and
support of people who are under certain other Australian states’ and
territories’ warrants or orders; of people in other states and territories
who need such treatment, care and support in the ACT; and of people subject to
orders under ACT mental health legislation who need treatment in another
Australian state or territory, all via Bill Chapter 15 (Interstate application
of mental health laws).
3.8 The Bill’s Chapter 18 (Repeals and
consequential amendments) provides for:
a. amendment of the current Act, several Acts apart from the amended Act, and several Regulations, in ways necessitated by how those Acts and Regulations need to interact with the new Act, if the Bill is enacted; and
b. repeal of the current Act and the legislative instruments under it, bar a few,[52] because if the Bill is enacted, new instruments can be made under the enactment.
3.9 Finally, the Bill’s Chapter 40 (Transitional) provides for how certain decisions made, and processes in train, under the current Act, are to be treated under the new Act, should the Bill be enacted. Such clauses are necessary, because the authority for the current decisions and processes flows from the current Act, and it will be repealed upon commencement of the enactment of the Bill, if the Bill is enacted.
4. What makes the Bill compatible with the Human Rights Act 2004 (ACT)?
ACT Human Rights Act compatibility test
4.1 Section 28(1) of the Human Rights Act states that laws may reasonably limit the human rights codified in the Act, provided that the limits are ‘reasonable’ ones ‘that can be demonstrably justified in a free and democratic society’.[53] Section 28(2) compels consideration of the following five factors in the assessment of limits required by section 28(1).
4.2 These factors are:
1. the nature of the right affected;
2. the importance of the purpose of the limitation;
3. the nature and extent of the limitation;
4. the relationship between the limitation and the purpose of the limitation; and
5. any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
4.3 This segment of the Explanatory Statement describes the kinds of clauses in the Bill that limit rights that are declared by the Human Rights Act and how the limitations meet the test laid down by section 28. For all the rights-limiting Bill clauses, it is important to hold in mind that:
a. As discussed in segment 2, there are statutory and common law imperatives to interpret the clauses in a manner that is as consistent as possible with the Bill’s Objects and Principles, and with the rights of the Human Rights Act and of treaties that Australia has ratified, and such interpretation lessens the nature and extent of the clauses’ respective limitations on the rights.
b. None of the Bill’s provisions limit what is regarded in international law as an ‘absolute’ right, which is to say a CCPR right that international law forbids limiting.[54]
c. Indeed, as is highlighted later in this segment, many of the Bill clauses protect the two of the five absolute rights that are engaged by the Bill: one, freedom from torture and other cruel, inhuman or degrading treatment or punishment, codified in Article 7 of the CCPR, and in section 10 of the Human Rights Act, and two, the right to recognition before the law, codified in CCPR Article 16 and Human Rights Act section 8(1).
d. None of the Bill provisions limit ‘non-derogable’ rights, the suspension of which is prohibited by CCPR Article 4(2).[55]
e. The Bill’s clauses support many of these non-derogable rights, by supporting the right to health, which international case law states is incorporated in CCPR Article 6 and Human Rights Act section 9(1) (right to life), as well as in CCPR Article 7 and Human Rights Act section 10 (freedom from torture or cruel, inhuman and degrading treatment or punishment and medical or scientific experimentation without consent).
f. All the limitations on (non-absolute and non-derogable) rights are necessary, reasonable, and the least restrictive means reasonably available to achieve two types of expediency that are required by the right to health, as evidenced later in this segment: namely, timely assessment of people’s need for mental health and community care services, and timely delivery of these services to those who need them.
Apprehension powers
4.4 Some Bill clauses empower apprehension of persons. They include, but are not limited to clauses:
a. 139CF (Apprehension of interstate patient in breach of interstate involuntary treatment order); and
b. 139CG (Apprehension of person in breach of mental health order or forensic mental health order).
4.5 These powers limit Human Rights Act sections 11 (Protection of the family and children), 12(a) (Privacy and reputation), 13 (Freedom of movement), 15 (Peaceful assembly and freedom of association), and 18 (Right to liberty and security of person). The reasonability and justifiability of these limitations, under the Human Rights Act, is explored later in this segment, under the heading Reasonableness and justifiability of detention powers, etc..
Transfer powers
4.6 The Bill contains powers allowing for the transfer of a person in need of mental health treatment care and support in another Australian state or territory, from the ACT to that other jurisdiction, for the purposes of them receiving that treatment, care and support. The Bill also contains provisions empowering the transfer of a person in another state or territory into the ACT, for the purposes of receiving mental health treatment, care and support in the ACT.
4.7 The clauses that supply these powers have self-explanatory titles, namely:
a. 139CH (Interstate transfer—person under psychiatric treatment order or community care order);
b. 139CI (Interstate transfer—person under forensic psychiatric treatment order or forensic community care order);
c. 139CJ (Transfer to interstate mental health facility—emergency detention);
d. 139CK (Interstate transfer—when ACT order stops applying);
e. 139CL (Transfer of interstate patient to approved mental health facility);
f. 139CM (Transfer of responsibility to provide treatment, care or support in the community for interstate patient); and
g. 139CN (Transfer of person apprehended in another State to approved mental health facility).
4.8 In their exercise in respect of any one person, these powers potentially limit – while at the same time, supporting – Human Rights Act sections 11 (Protection of the family and children), 12(a) (Privacy and reputation), 13 (Freedom of movement), 15 (Peaceful assembly and freedom of association), and 18 (Right to liberty and security of person). The reasonability and justifiability of these limitations, under the Human Rights Act, is addressed under Reasonableness and justifiability of detention powers, etc..
Involuntary treatment, care and support powers
4.9 In certain narrow circumstances that it specifies, the Bill allows a person to be subjected to the following limitations on their freedoms, even though they have withheld their consent, or lack capacity to consent to these limitations:
a. compulsory assessment for mental illness/es and/or mental disorder/s;
b. non-optional detention for the purposes of the person receiving treatment, care and support for their mental illness/es and/or disorder/s;
c. mandatory restrictions on their movements, and place of residence,
for the purposes of the person receiving treatment, care and support for their
mental illness/es and/or disorder/s; and
d. involuntary treatment,
care and support for their mental illness/es and/or disorder/s.
4.10 For instance, subclause (3) of clause 53 (Adult without decision-making capacity) permits the administration of electroconvulsive therapy (ECT) to a person who lacks the capacity to decide that they will receive ECT, provided that:
a. the ECT administration is in accordance with an ECT order or an
emergency ECT order made by the ACT Civil and Administrative Tribunal (ACAT);
and
b. the person either does not refuse or resist the ECT or they are
subject to a psychiatric treatment order or forensic psychiatric treatment
order.
4.11 The ACT Supreme Court is also permitted, by Bill clause 65, to consent to the performance of psychiatric surgery on a person, upon a doctor’s application, though only if the Court is satisfied of all of the below:
a. the person has a mental illness; and
b. the person lacks the decision-making capacity to consent to the surgery; and
c. the person has not refused to so consent; and
d. there are grounds for believing the surgery is likely to substantially benefit the person; and
e. all alternative and reasonably available treatments have failed, or are likely to fail, to benefit the person.
4.12 The powers enabling involuntary, non-consensual mental health assessment, treatment, care and support engage and limit Human Rights Act section 10(2), the right of a person to not be subjected to medical treatment without their free consent. This right is part of the right to protection from torture and cruel, inhuman and degrading treatment provided by section 10 of the Human Rights Act.
4.13 The powers empowering detention, and restrictions on movement and
place of residence, engage and limit Human Rights Act sections 11 (Protection of
the family and children) 12(a) (Privacy and reputation), 13 (Freedom of
movement), 15 (Peaceful assembly and freedom of association), and 18
(Right to liberty and security of person).
4.14 The reasonability and
justifiability of these limitations, under the Human Rights Act, are discussed
below.
4.15 There is a large body of international human rights case law on the following sorts of powers exercised in jurisdictions across the world:
a. powers to apprehend and remove a person within a jurisdiction, or across jurisdictions, to medically assess them for mental illness/es and/or disorder/s, because they are showing the signs of needing that assessment, even though the person has withheld consent to that apprehension and removal and/or lack the decision-making capacity to do give it;
b. powers to medically assess the person for mental illness/es and/or disorder/s, directly after apprehending and removing them for that purpose, or after they have presented to a health professional qualified to conduct the assessment, even though the person has withheld consent to that assessment and/or lack the decision-making capacity to give it;
c. powers to give the person mental health treatment, care, and
support that a medical assessment establishes they currently need, even though
the person has withheld consent to that treatment, care, and support and/or they
lack the decision-making capacity to give that consent;
d. powers to
restrict the person’s movements and place of residence, detain them, and
forcibly medicate, confine, restrain, and seclude them, if that is necessary to
afford them the treatment, care and support the assessment indicates they
currently need, even though the person has withheld consent to one or more of
these limitations on their freedom and/or they lack the decision-making capacity
to give consent to any of those limitations.
4.16 This body of international case law shows that so long as these powers meet the following eight provisos, they meet the test of compatibility with human rights provided by section 28 of the ACT Human Rights Act, discussed at the beginning of this segment.[56]
4.17 One, all the powers must be exercised only with caution and care and only:
a. if their exercise is determined necessary by a medical assessment of the person being assessed, treated, cared for, or supported necessitates, where the assessment is conducted in accordance with clinically accepted methods by an appropriately qualified doctor.
b. in respect of a person who is, as a result of their mental illness/es and or disorder/s, posing a serious risk to their best interests, by, for example, giving away all their money and/or jeopardising their own health and safety or that of others.
4.18 Two, powers of apprehension and removal within, or across, jurisdictions, and powers of emergency detention, should be exercised only to remove a person to an appropriate therapeutic facility to have them medically assessed for mental illness/es and/or disorder/s soon after arrival.[57]
4.19 Three, powers of medium to long term detention, restrictions on movements or place of residence, and powers of involuntary treatment, care or support, can only be exercised once appropriately qualified doctors, using clinically accepted methods, assess the person, and establish that these powers need to be exercised, the form in which they need to be exercised, and to what extent.[58]
4.20 Four, powers of detention, powers of restriction on movements and place of residence, and powers of involuntary treatment, care and support, can only continue to be exercised in respect of a person, if appropriately qualified doctors, using clinically accepted methods, reestablishes at regular, short intervals:
a. that that person remains in need of mental health treatment, care or support, and whether the powers still need to be exercised to provide that treatment, care or support to that person; and, if the powers do need to be exercised for that purpose,
b. the form in which the powers need to be exercised and to what extent.
4.21 Five, each and every person subjected to these powers must have the right to a court or administrative review body that is independent of the exerciser of the powers reviewing the exercise of the powers in respect of the person. These review rights must be effectively accessible by each person. That is to say, irrespective of whether the person applies for review, the review must occur at regular, short intervals after the initial imposition of the detention, restrictions on movement or residence, and/or involuntary treatment, care or support.[59]
4.22 Six, the powers can only be exercised to provide the person with treatment, care or support for their illness/es and/or disorder/s. Further, that treatment, care or support must not be significantly substandard.[60] The relevant case law gives jurisdictions wide discretion on what medical care is not substandard, given their different levels of available funding and other resources.[61]
4.23 Seven, the exercises of any of these powers must not have the object of humiliating and debasing a person. They must also not severely, adversely affect them[62] in a manner and to a degree incompatible with the international human rights protection against torture and cruel, inhuman and degrading treatment.[63] Further, in assessing whether the person has been so affected, regard must be had to their particular personality and ‘vulnerability and their inability...to complain coherently, or at all, about how they are being affected by any particular treatment’.[64]
4.24 Eight, forced transfer of an ill person to another jurisdiction is prohibited only where that transfer would result in the person no longer receiving life-saving treatment.[65] It must also be remembered that the Bill’s transfer powers are manifestly for the purposes of enabling:
a. a person from the ACT to be treated, cared for, and supported in another Australian state or territory, in which their close friends and/or relatives reside;
b. a person from another state or territory to be treated, cared for, or supported in the ACT, because their close friends and/or relatives reside in the ACT; and
c. a person from the ACT to receive the specialist treatment, care, or support that they need, in another Australian state or territory, because that specialist service is available there, but not in the ACT;
d. a person from another state or territory to receive the specialist treatment, care, or support that they need in the ACT, because that specialist service is available in the ACT, but not in their state or territory.
4.25 In so doing, the Bill’s interstate transfer clauses support:
a. section 11 (Protection of the family and children) of the ACT Human Rights Act, which is sourced from CCPR Articles 17(1) and 23, and is reinforced by those CCPR Articles as well as Articles 5 of CERD, 16 of CEDAW, 16 of CRC, and 23 of CRPD;
b. Human Rights Act section 27 (Rights of minorities), in the case that the patient is from an ethnic, linguisitic, or religious minority, a right that is sourced from CCPR Article 27, and that is reinforced by that CCPR Article as well as Article 1(1) of the Declaration on the Rights of Persons Belonging to National or Ethnic or Religious and Linguistic Minorities;[66]
and
c. the Bill section 5(e) Object to ‘promote the
inclusion of, and participation by, people with a mental disorder or mental
illness in communities of their choice’, recalling that the significance
of the Bill’s Objects to interpretation of the Bill is explained in
segment 2 of this Explanatory Statement, under the heading Bill’s
Objects and Principles.
4.26 All of these powers of apprehension, detention, transfer, restriction, and treatment are circumscribed to being applied in a manner that is the least restrictive of people’s rights, by:
a. the qualification on the uses of these powers in the respective Bill clauses that supply the powers; and
b. the injunctions in the Human Rights Act, common law, and section 6 (Principles) of the Bill to interpret legislation as consistently as possible with the rights in the Human Rights Act, treaties ratified by Australia, and international law created under those treaties, as explained in segment 2; and
c. the Bill’s section 5(c) Object, to ‘ensure that people with a mental disorder or mental illness receive assessment and treatment, care or support in a way that is least restrictive or intrusive to them’, which aligns with Human Rights Act sections 9(1) (right to life), 10 (Protection from torture and cruel, inhuman or degrading treatment etc.), 13 (Freedom of movement), 18 (Right to liberty and security of person), and 19 (Humane treatment when deprived of liberty), as well as with the CCPR rights from which they are sourced and the rights in other treaties that additionally reinforce them.
4.27 When, as the Bill requires, these powers, are exercised in the least restrictive ways, they also expedite people’s access to health and community care services and, thereby, bolster fulfillment of the right to health for people with mental illness/es and/or disorder/s. As discussed in segment 2, international law clearly indicates that the right to health is incorporated in the right to life and the freedom from inhuman and degrading treatment, respectively supplied by sections 9(1) and 10 of the Human Rights Act.
4.28 That mental health services must be promptly accessible to people experiencing mental illness/es, if they are to enjoy the right to health, is underscored by the following links between certain research, and a United Kingdom House of Lords decision, and a UN General Comment which falls within the definition of ‘international law’ that can be relied on to interpret rights in the Human Rights Act:[67]
a. there is a large body of cogent, peer-reviewed research demonstrating that a person may sustain cumulatively diminished capacities to recover from mental illness/es, if they experience long periods of the illness/es being left untreated, and that a person may experience substantially shorter periods of the illness/es, and less long-term, associated disability, if the time between the onset and treatment of the illness/es is reduced;[68]
b. the UN General Comment on the right to health[69] declares that the right includes obligations to provide ‘timely and appropriate health care’,[70] and, more specifically ‘timely access to basic preventive, curative, rehabilitative health services and health education’[71] (emphasis added) and that one of the right’s ‘essential elements’ is its ‘accessibility’, ‘in all its forms’, including ‘health-care facilities’ and ‘services’;[72] and
c. Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate) (2008), a House of Lords case about mental health services, discussed in segment 2, holds that the right to health obliges health authorities to have ‘systems in place to provide access to necessary health care’ and ‘an obligation actually to provide it’[73] (emphasis added).
Psychiatric surgery and electroconvulsive therapy clauses
4.29 The Bill also contains a number of clauses providing for the treatment options of ECT and psychiatric surgery. Today, any discussion of the compatibility of such powers with the ACT Human Rights Act must begin by noting that an exhaustive search of ‘international law’, as broadly defined by the Human Rights Act,[74] reveals that none of it criticises, let alone prohibits, psychiatric surgery or ECT administered in accordance with the relevant internationally agreed, clinical standards.[75]
4.30 Moreover, a large body of peer-reviewed research that is cited
later in this segment rigorously evidences the safety and efficacy of these
treatments. Accordingly, the Bill powers that allow these treatments to be given
to those persons who need them are extending those persons the right to health.
4.31 As discussed in segment 2 of this Explanatory Statement,
international case law holds that the right to life and the freedom from
inhuman and degrading treatment each encompass the right to health. In the ACT,
the right to life, and the freedom from inhuman and degrading treatment, are
respectively supplied by not only the common
law,[76] but also sections 9(1) and
10 of the Human Rights Act.
Clauses on electroconvulsive therapy and related safeguards
4.32 The ECT protocol promulgated by the Royal Australian and New Zealand College of Psychiatrists is explicitly based on the relevant, internationally agreed, clinical standards. It binds psychiatrists practicing anywhere in Australia and New Zealand.[77]
In Australia, psychiatrists who are to administer ECT typically receive ECT training and that training accords with the spirit and letter of the protocol.[78]
4.33 The few criticisms regarding ECT published by the UN, or other authoritative commentators on human rights abuses, are about two scenarios; one, the conversion of ECT into an instrument of torture or punishment[79] and, two, the application of ECT in an ‘unmodified’ form[80]. ECT as torture and ‘unmodified’ ECT are unequivocally alien to the relevant, internationally agreed clinical standards on ECT.
4.34 ‘Unmodified’ ECT is applied to therapeutically treat someone,[81] not torture them, but it is administered without the anaesthesia and muscle relaxants that the international clinical standards make mandatory.[82]
Unmodified ECT, and ECT as torture, are practised in economically developing places of the world, not in the ACT or anywhere else in Australia.[83]
4.35 Nonetheless, the Bill contains many clauses to prevent such abusive uses of ECT, as well as any accidental administration of it without informed consent. These controls include, but are not limited to:
a. clause 50, which requires a particular form of consent for ECT.
b. clause 55B(1), which states that it is an offence for anyone, other than a doctor, to administer ECT to a person, and that the maximum penalty for that offence is 100 penalty units, imprisonment for 1 year, or both.
c. clause 55B(2), which makes it an offence for a doctor to administer ECT contrary to the requirements of Division 9.2.1 (Administration of electroconvulsive therapy), with a maximum penalty of 50 penalty units, imprisonment for six months, or both.
d. clause 55C(1), which dictates an application to make a person subject to an ECT order – whether they are an adult or under 18 years of age – can only be made by a chief psychiatrist or doctor who believes, on reasonable grounds, that the ACAT could subject that person to the order, under the law.
e. clause 55C(3), which stipulates that an application for an ECT order for a person under 18 years of age must have the support of a child and adolescent psychiatrist, who is a different person to the applicant for the order, even if that applicant is also a child and adolescent psychiatrist.
f. clause 55J(a), which declares that when the ACAT is deciding whether or not to make the person the subject of an ECT order, the ACAT will take into account the person’s views and wishes, so far as they can be discovered, including from any advance agreement and consent direction.
g. the stringent requirements of when ECT may, and may not, be administered to young people of 12 years old and more, provided by clauses 54 (Young person with decision-making capacity) and 55 (Young person without decision-making capacity).
h. section 51(3) banning the administration of ECT to people under 12 years of age.
4.36 The Review Advisory Committee decided that the ban, mentioned at h., was prudent, even though ECT is rarely[84]
administered to pre-adolescent children in Australia. The Committee arrived at this decision, because of the:
a. dearth of research evidence recommending ECT for children who have mental illness/es treatable by ECT and are under 12 years of age;[85]
and
b. the general public’s concerns about the administration of ECT to pre-adolescent children[86]
.
4.37 However, the Committee resolved that the Act should allow ECT to be a treatment option for people over 12 years old. They determined this, because there are many contemporary, methodologically rigorous, and peer reviewed studies evidencing that:
a. ECT is safe, effective, and even life-saving, for people with clinical depression, mania, or psychosis;[87]
b. some people are unable to tolerate the medications, or medication dosages, used to treat depression, mania, or psychosis, and their symptoms cannot be relieved by psychotherapy alone;[88]
c. some people have depression, mania, and psychosis that proves
unresponsive to both the medications and
psychotherapy;[89] and
d. some of these people have life-threatening symptoms that direly
need the rapid, significant alleviation that
practitioners[90] and recipients of
ECT, say it affords[91].
4.38 None of this is to deny that it is not also well documented that ECT has some adverse side effects on some people.[92] However, it is to suggest that ECT is often a life-saving treatment. Accordingly, the right to life, provided by section 9 of the Human Rights Act, is bolstered by the Bill clauses that regulate ECT, some of which are cited above.
Clauses on psychiatric surgery and related safeguards
4.39 The other treatment provided for by this Bill is psychiatric surgery.
4.40 Until the 1980s, psychiatric surgery was sometimes misused in Australia.[93]
However, since then, a large body of peer-reviewed research has shown how contemporary psychiatric surgery is safe and, where other less intrusive treatments have failed, it has effectively alleviated the symptoms of certain mental illness/es and/or disorder/s.[94]
4.41 At this stage in history, psychiatrists in Australia rarely treat people by way of psychiatric surgery.[95]
Nevertheless, the Bill contains many clauses to prevent any abuses of it, or any accidental performances of it, without informed consent.
4.42 These controls include, but are not limited to:
a. clause 50, which requires a particular form of consent for psychiatric surgery.
b. clause 60, which states that a doctor commits an offence with a maximum penalty of 100 penalty units, imprisonment for 1 year, or both, if they perform psychiatric surgery on a person and the doctor has no approval to do so from the chief psychiatrist, or the doctor has been told that the person refuses to have the surgery.
c. clause 61, which compels a doctor who proposes to perform psychiatric surgery on a person to apply to the chief psychiatrist for approval to perform it and requires that application to be in writing, and to include a copy of the consent of the person or of an order of the ACT Supreme Court that supplies consent for that person.
d. clause 65, which forbids that Court from supplying that consent,
unless four conditions obtain: one, the consent is for a person with a mental
illness; two, the person lacks the decision-making capacity to consent to the
surgery, and has not refused that consent; three, there are grounds for
believing that the surgery is likely to substantially benefit the person; and,
four, all reasonably available, alternative treatments have failed, or are
likely to fail.
e. clause 66(3), which provides for a maximum penalty
of 50 penalty units, imprisonment for six months, or both, for a person
failing to tell the chief psychiatrist that someone has said they refuse to have
psychiatric surgery, even if they or the Court previously consented to it.
4.43 Some of the Bill’s clauses stipulate that, in certain circumstances, the person with mental illness/es and/or disorders will be consulted or given information by certain people, and that certain people will record whether they consulted with the person, and if not, why not. For instance:
a. clause 55D compels the ACAT to consult with specified people when it is determining whether to make a person subject to an ECT order; and
b. clause 62(2) dictates that a specified committee will consult with specified people about a doctor’s application to perform psychiatric surgery on a person.
4.44 These provisions counter a person being given treatment that is contrary to their wishes, except in narrow circumstances expressly permitted by the Bill. In so doing, they foster observance of Human Rights Act:
a. section 19 (humane treatment when deprived of liberty);
and
b. section 10 (freedom from torture and cruel, inhuman and
degrading treatment).
4.45 The right to health is also directly protected by the Bill’s information and consultation requirements. As discussed in segment 2, international case law indicates that the right to health is incorporated in the right to life and the freedom from inhuman and degrading treatment, respectively supplied by Human Rights Act sections 9 and 10.
4.46 Further, in its General Comment No. 14 on the right to health, the UN Committee on Economic, Social and Cultural Rights states that there is a tight nexus between it and the ‘right to seek, receive and impart information and ideas concerning health issues’.[96] The Committee describes this latter right as foundational to what it characterises as the essential ‘accessibility’ element of the right to health, as well as to the freedom of expression, declared by CCPR Article 19(2).[97] Article 19(2) is the source of Human Rights Act section 16(2). Section 16(2) declares:
Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.
4.47 International law makes clear that the right to fair trial, supplied by section 21 of the Human Rights Act, applies not only to criminal, but also civil, proceedings.[98]
The Bill, like the current Act, contains many clauses that:
a. empower ACAT to conduct civil proceedings to make or review orders;[99] and
b. impose duties on ACAT that are ancillary to its order making and reviewing[100].
4.48 ACAT is not a court and its members have no tenure. Rather, it is a tribunal comprised of members whose respective terms vary in length, depending on what kind of member they were appointed as, under the ACT5 Civil and Administrative Tribunal Act 2008 (ACAT Act).[101]
Further, as section 8 of the ACAT Act states, the ACAT is not bound by the rules of evidence.
4.49 Nonetheless, those above cited Bill provisions that enable or require ACAT proceedings, and impose ancillary duties on ACAT, are compatible with the right to a fair trial.[102]
4.50 Further, the same Bill provisions are also compatible with the right to recognition and equality before the law, provided by section 8 of the Human Rights Act.
4.51 The compatibility of these provisions is clearly borne out by, among other things, a part of international law and a case of the United Kingdom High Court.[103]
4.52 In the case, H v MHRT, North and East London Region (2000), the Court held that ‘there was nothing unlawful [under the United Kingdom Human Rights Act 1998] about a tribunal system that was of an inquisitorial nature...’[104] The tribunal which the case challenged was the United Kingdom’s Mental Health Review Tribunal. There has been no overruling of this case, or of any analogous case, by a superior appellate court of any common law country.
4.53 The part of international law relevant here is Principle 17 of the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (‘the Mental Health Principles’). While these Principles do not form a treaty, they were agreed with Australia’s full support.[105]
Further, they do give valuable guidance on how the CCPR[106] and CESCR[107]
apply, in respect of people with mental illness/es and/or disorder/s, regardless of whether they are adult, juvenile, or imprisoned people.
4.54 Principle 17 declares:
The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.[108]
4.55 The Definitions in the Principles include a definition of ‘review body’. It is: ‘the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility’.[109]
4.56 In this way, the Principles expressly approve of administrative bodies being the makers of orders for the treatment, care and support of persons who have, or appear to have, mental illness/es, on three conditions: one, so the administrative bodies are constituted under law; two, they are independent of the Executive; and, three, they conform with due process rights.
4.57 Certain provisions of the ACAT Act mandate that the ACAT conforms with due process rights. Section 21(1) of the Human Rights Act explicitly declares that such rights are part of the Human Rights Act section 21 right to a fair trial.[110] They are also a part of the right to recognition and equality before the law, which is supplied by section 8 of the Human Rights Act.
4.58 Certain Bill clauses are also express responses to the due process protections required by Principle 17 and by Human Rights Act sections 21 and 8. These include, but are not limited to:
a. clause 55E which compels ACAT to hold a hearing into an electroconvulsive therapy (ECT) order matter; and
b. clause 139CH(3), which dictates that ACAT will hold a hearing into an interstate transfer order matter.[111]
Powers to inspect private psychiatric facilities
4.59 Bill clause 135B(1) (Powers of inspection) supplies inspectors, who are appointed under clause 135, with powers to inspect private psychiatric facilities for compliance with patient safety and other relevant standards. More specifically, clause 135B(1) enables such an inspector to, at any reasonable time, enter premises licensed as a private psychiatric facility, and:
a. inspect them, and any equipment used there, in connection with treatment, care or support of the kind provided for by the Bill; and
b. inspect books, documents or other records that relate to the conduct of the private psychiatric facility at the premises; and
c. require the premises’ occupier to give the inspector copies of information, books, documents or other records relating to the conduct of the facility at the premises.
4.60 These powers pass the section 28 test set by the Human Rights Act, for at least five main reasons.
4.61 First, the UN Human Rights Committee has emphasised that it is unacceptable for States to fail to meet CCPR Article 10 (1),[112] which reads: ‘1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. Further, that Committee states in its latest General Comment on Article 10 that ‘Article 10, paragraph 1...applies to any one deprived of liberty under the laws and authority of the State who is held in prisons, hospitals - particularly psychiatric hospitals - detention camps or correctional institutions or elsewhere’.[113]
4.62 Second, Article 10 is much reflected in:
a. section 19 (Humane treatment when deprived of liberty) of the Human Rights Act;
b. the section 5(d) Object of the Bill, which is to ‘facilitate access by people with a mental disorder or mental illness to services provided in a way that recognises and respects their rights, inherent dignity and needs’; and
c. the section 6(e) Principle of the Bill, which is that ‘a person with a mental disorder or mental illness has the right to access the best available treatment, care or support relating to the person’s individual needs’.
4.63 Third, people reasonably expect facilities that deliver health and/or community care services to be safe,[114] because they exist to provide a therapeutic environment, not a potentially injurious or fatal one.
4.64 Fourth, there are many international human rights law cases that declare people should have a low expectation of privacy in spaces outside of regular, private residences.[115] These include cases which found no violations of the right to privacy where transport inspectors, authorised to do so by law, have entered the sleeping spaces of boats[116] and trucks[117].
4.65 Fifth, there is also a large body of international case law that states it is permissible to conduct entries, searches, and seizures, without warrants, if these two conditions obtain:
a. a statute expressly enables those warrantless entries, searches, and seizures, in exigent situations that cannot be anticipated with any certainty and do not allow a warrant to be obtained in the time in which the entries, searches and seizures need to occur for urgent safety reasons; and
b. each entry, search, and seizure, must be performed only to the
extent necessary and in accordance with the statutory requirements that allow
them.[118]
5. What are the Bill clauses about?
Chapter 1 Preliminary
1 Name of Act simply provides that, if enacted, the Bill will be entitled Mental Health Act 2015.
2 Commencement provides that if the Bill is enacted, it will commence immediately after the commencement of the Mental Health (Treatment and Care) Amendment Act 2014. The commencement of the Mental Health (Treatment and Care) Amendment Act 2014 is scheduled to be 12 November 2014.
3 Dictionary states that the Dictionary at the end of the Bill is part of the Bill.
4 Notes states that all of the Bill’s Notes are explanatory only, and not a part of the Bill.
4A Offences against Act—application of Criminal Code etc states that there is legislation that will apply to the enactment’s offences, including both:
- section 133 of the Legislation Act 2001 (ACT) (‘Legislation Act’), which defines the worth of a penalty point; and
- Chapter 2 of the Criminal Code 2002 (ACT) (‘Criminal Code’), which lays down general principles of criminal responsibility, such as burdens of proof and general defences, and defines terms used for offences to which the Criminal Code applies.
Chapter 2 Objects and important concepts is where sections 5 to 13 from the Mental Health (Treatment and Care) Act 1994, as amended by the Mental Health (Treatment and Care) Amendment Act 2014 (‘the Amendment Act’) and by the enactment of the Bill (‘the amended Act’), will be relocated, by Amendment 2.33 Schedule 2 of the Bill.
The Bill provides for no amendments to sections 5 to 13. As the title of Chapter 2 indicates, these relocated sections regard the Objects of the Bill or concepts that underpin many Bill clauses.
Chapter 3 Rights of people with mental disorder or mental illness is where Parts 3.1 to 3.3 of the amended Act, will be relocated into the 2015 Act, by Amendment 2.34 in Schedule 2 of the Bill. As the title of this Chapter indicates, all these provisions regard the rights of people with mental disorder/s and/or illness/es as defined by sections 9 and 10, respectively, of the amended Act.
Note that Schedule 2 provides for amendments in respect of these three provisions within Parts 3.1 and 3.3 of the amended Act:
- sections 15(1)(b)(vi) and 15(4)(g), in Part 3.1, which regard the information people are to be provided by the person responsible for a mental health facility or community care facility, as soon as practicable after it is decided to give those people treatment, care or support at the facility; and
- section 27(4) and its Note, in Part 3.3, which regard an advance consent direction that gives consent to electroconvulsive therapy (ECT).
For more details on these three amendments, see Schedule 2 Legislation amended, Part 2.1 Mental Health (Treatment and Care) Act 1994, Division 2.1.1 Amendments, provided by Bill clause 149.
Chapter 4 Assessments will contain Parts 4.1 and 4.2 relocated from the amended Act, by Amendment 2.35 in Schedule 2 of the Bill. Note that Schedule 2 of the Bill provides for amendments to the two following provisions that fall within Part 4.2:
- section 36H (Executing removal order); and
- section 36M(2) (Notice of outcome of assessment).
For more details on these two amendments, see Schedule 2 Legislation amended, Part 2.1 Mental Health (Treatment and Care) Act 1994, Division 2.1.1 Amendments, provided by Bill clause 149.
Chapter 5 Mental health orders will contain Parts 5.1 to 5.7 relocated from the amended Act, by Amendment 2.36 in Schedule 2. Note that Schedule 2 provides for amendments to the following sections within Parts 5.1 to 5.7:
- sections 36R(1)(g), 36R(1)(h), and 36R(2) (Consultation by ACAT —mental health order);
- section 36Z(5)(a)(viii) (Role of chief psychiatrist—psychiatric treatment order);
- section 36ZC(5) (Powers in relation to psychiatric treatment order);
- section 36ZH(3)(a)(viii) (Role of care coordinator—community care order); and
- section 36ZK(5) (Powers in relation to community care order).
For more details on these seven amendments, see Schedule 2 Legislation amended, Part 2.1 Mental Health (Treatment and Care) Act 1994, Division 2.1.1 Amendments, provided by Bill clause 149.
Chapter 6 Emergency detention will contain the following sections relocated from the amended Act to this Chapter, by Amendment 2.37 in Schedule 2 of the Bill:
- section 37 (Apprehension);
- section 38 (Detention at approved mental health facility); and
- section 38A (Copy of court order).
Schedule 2 provides for no amendments to these sections.
39 Statement of action taken differs from the current Act’s section 39 Statement of action requirements, by adding:
- ‘authorised ambulance paramedic’ to subsection (1) to acknowledge that authorised ambulance paramedics - not only police officers, mental health officers, and doctors - can be undertaking the section 37 apprehensions and removals of people to an approved mental health facility, upon which the section 39 Statements need to be made.
- paragraph (1)(d) which adds ‘nature and’ before the word ‘extent’ in that paragraph’s requirement that there be recording in the section 39 statement of ‘the nature and extent of the force or assistance used to enter any premises, or to apprehend the person and take the person to the facility;’.
- paragraph (1)(e), which requires the exerciser of the section 37 power to write into the Statement the nature and extent of any restraint, involuntary seclusion, or forcible giving of medication, that was used when apprehending the person or taking them to the facility.
- paragraph (1)(f), which requires that the exerciser of the section 37 power to write into the Statement anything else that happened when the person was being apprehended and taken to the facility that may affect the person’s physical or mental health.
- paragraph (2)(b), which requires the person in charge of the facility who receives the Statement to keep a register of any restraint, involuntary seclusion or forcible giving of medication included in Statements.
These additions to section 39 serve four main purposes. One, they ensure that the mental health facility professionals to whom the person is delivered, under section 37, are informed of any event the person experienced during that section 37 apprehension and removal, which the professionals need to know to appropriately care for the person. Such events might include:
- the person dropped a package of a powder as they were apprehended and removed;
- while the person was being apprehended and removed, they could, or would, not cease assaulting their apprehenders, so the person was involuntarily secluded in the back of a paddy wagon for the duration of their transport to the facility; and
- the person was noisy during their apprehension and for most of the journey, but since they hit their head against the paddy wagon, they have been conscious, but silent.
The mental health professionals are likely to need such information about the person’s condition, if they are to:
- calm and reassure the person;
- maintain the safety of the person and those around them; and
- arrange timely and otherwise appropriate assessment and treatment of any mental or physical deterioration, intoxication, injury or illness, that became apparent to those people who executed the apprehension and removal.
Two, these changes to section 39 mean that, if a person is injured, during a section 37 apprehension and removal of them, the associated section 39 statement is more likely to well inform those individuals and authorities, who can lawfully be told, or who the law requires to be told, how the person came to be injured.
The said individuals would include the person injured and might include, say, the person’s carer or guardian. The said authorities might be ones to whom the person or their representative has complained about their injury, such as the Ombudsman for the ACT.
Three, the new section 39 means that, if a person dies, during, or shortly after, their section 37 apprehension and removal, the associated section 39 statement is more likely to be useful to any close friends and relatives of the deceased person and to authorities who investigate the person’s death.
Four, section 39’s newly required register of all incidences of restraint, involuntary seclusion, or forcible giving of medication that are reported in section 39 statements will enable:
- identification of any apparently anomalous occurrence of restraint, involuntary seclusion, or forcible giving of medication during a section 37 apprehension and removal, so that, if warranted, there can be inquiry into whether that occurrence involved any unlawful or unsafe conduct; and
- identification and monitoring of any trends in the frequency, duration, and other characteristics of section 37 incidences of restraint, involuntary seclusion, or forcible giving of medication, including the extent to which these restrictions are:
1) only used to the degree necessary to conduct an apprehension and removal that is safe for the apprehended and removed person, for the person or people apprehending and removing them, and for anyone else within the vicinity of the apprehension and removal, and,
2) only when there is no less restrictive, reasonable way of apprehending and removing the person that is commensurate with maintaining the safety of all those people mentioned in 1).
Such tracking will be instructive of:
- root cause analysis of any trends in unlawful or unsafe uses of restraint, involuntary seclusion, and forcible giving of medication, during section 37 apprehensions and removals;
- design and implementation of any training and procedures that bears on section 37 apprehensions and removals; and
- evaluation of that training and of those procedures, and of any
changes made to them, in terms of impacts on the frequency, duration, safety
levels, and other characteristics of section 37 uses of restraint, involuntary
seclusion, and forcible giving of medication.
Chapter 6 will also contain the
following sections relocated into it from the amended Act, by Amendment 2.38 in
Schedule 2:
- section 40 (Initial examination at approved mental health facility);
- section 41 (Authorisation of involuntary detention); and
- section 41AA (Medical examination of detained person).
The Bill provides for no amendments to these three provisions. For explanation of any of them, see the Explanatory Statement on the Amendment Act.
41A Notification of Magistrates Court about emergency detention or release from emergency detention adds a subsection (2) to the current Act’s section 41A. (The Amendment Act does not amend section 41A.)
This added subsection provides that if the person who is referred by the Court is detained at the facility under section 38 (Detention at approved mental health facility) or section 41 (Authorisation of involuntary detention), the person in charge of the facility must notify the court of the reasons for that detention.
The current section 41 only requires that the Court is notified of the results of an examination conducted by a doctor under an order under the section 309(1) of the Crimes Act. This requirement, in subsection (1) of the current section 41A is preserved in subsection (1) of clause 41A of the Bill.
41AB Treatment during detention remakes section 44 (Treatment during detention) of the Amendment Act, without changing its meaning.
Section 42 (Notification of certain people about detention) is relocated to this chapter from the amended Act, by Amendment 2.39 in Schedule 2 of the Bill.
There are also some amendments of sections 42(3) and (4) by Bill Schedule 2, [2.14].
Section 17 of the Amendment Act 2014 omits section 43.
Section 45 (Offence—communication during detention) is relocated to this chapter from the amended Act, by Amendment 2.40 in Schedule 2 of the Bill.
For an explanation of section 45, see the Explanatory Statement on the Amendment Act and the Explanatory Statement on the current Act.
46 Order for release differs from section 46 of the current Act as amended by the Amendment Act, in two main ways.
First, it is worded differently to make it easier to read and comprehend.
Second, it provides that the doctor’s examination of the detained person occurs under section 41AA (Medical examination of detained person). Section 41AA is a new provision supplied by the Amendment Act. The current Act’s section 46 states that this examination occurs under the current Act’s section 43 (Medical examination).
Third, new clause 46 provides that the doctor who examined the person under section 41AA, the chief psychiatrist, or the ACAT, must, as soon as practicable, order the release of the person, if their detention is no longer justified under any provision of section 41.
The current section 46 only provides that the doctor who examined the person, the chief psychiatrist, or the ACAT, must make that order, if the person’s detention is no longer justified under sections 41(1) or (2).
47 Duty to release imposes on the person in charge of an approved mental health facility the duty of releasing a person detained under section 41, in accordance with an order under clause 46.
Clause 47(1)(b) mandates that if no order for release is made under clause 46, then, subject to any other ACAT order, the person is to be released at the end of the period of detention authorised under section 41 (Authorisation of involuntary detention). Section 41 is relocated into the Bill from the amended Act, by Amendment 2.38 in Schedule 2.
See the Amendment Act’s Explanatory Statement on section 41 for explanation of the terms of detention it permits and in what circumstances and on whose authority.
Chapter 7 Forensic mental health will contain Part 7.1 (Forensic mental health orders) and Part 7.2 (Affected people) relocated from the amended Act, by Amendment 2.41 in Schedule 2 of the Bill.
Note that Schedule 2 provides for amendments to these provisions of Parts 7.1 and 7.2:
- section 48S (Definitions—pt 7.1);
- the heading of section 48T to change it to ‘Applications for forensic mental health orders—detainees etc’;
- sections 48T(1) and (2) (Applications for forensic mental health orders—detainees etc);
- section 48Y(1)(b) (What ACAT must take into account—forensic mental health order);
- section 48ZA(1)(b) (Forensic psychiatric treatment order);
- section 48ZC(6)(a)(vii) (Role of chief psychiatrist—forensic psychiatric treatment order);
- section 48ZG(5) (Powers in relation to forensic psychiatric treatment order);
- section 48ZH(1)(b) (Forensic community care order);
- section 48ZJ(4)(a)(vii) (Role of community care coordinator—forensic community care order); and
- section 48ZN(5) (Powers in relation to forensic community care order).
Chapter 8 Correctional patients will contain Parts 8.1 (Preliminary) to 8.4 (Leave for correctional patients) relocated from the amended Act, by Amendment 2.42 in Schedule 2 of the Bill.
The Bill provides for no amendments to any of the provisions in Parts 8.1 to 8.4.
Chapter 9 Electroconvulsive therapy and psychiatric surgery
Part 9.1 Preliminary—ch 9
49 Definitions brings certain definitions to the beginning of this Part, from within several provisions of this Chapter, from the beginning of several of this Chapter’s Divisions, or the Dictionary at the end of the Chapter.
These definitions are for the terms:
- electroconvulsive therapy;
- electroconvulsive therapy order;
- emergency electroconvulsive therapy order;
- neurosurgery; and
- psychiatric surgery.
All of these terms are defined with the same content as the same definitions within the current Act, except for psychiatric surgery, which is redefined as ‘specialised neurosurgery for psychiatric conditions’.
50 Form of consent is a far more concise provision than the equivalent one in the current Act. This concision is permitted by the new section 8 decision-making capacity principles, supplied by the Amendment Act.
However, clause 50 preserves the safeguard in the current equivalent provision that the consent must be indicated in writing, and with a signature, provided by the person giving consent, in the presence of a witness apart from:
- the doctor proposing to perform the ECT or psychiatric surgery; and
- the person seeking the consent, should they be a different person to the doctor.
Part 9.2 Electroconvulsive therapy
Division 9.2.1 Administration of electroconvulsive therapy
The Amendment Act does not address the provisions regarding ECT administration, which is why all references, below, are to provisions of the current Act.
51 When electroconvulsive therapy may be administered provides that ECT may be administered to an adult only:
- via the procedures dictated by clauses 52 (Adult with decision-making capacity) and 53 (Adult without decision-making capacity); and
- to a person who is at least 12 years of age, but under 18 years of age, as provided by clauses 54 (Young person with decision-making capacity) and 55 (Young person without decision-making capacity).
Clause 51 also expressly prohibits the administration of ECT to a person under 12 years old.
The current Act provides for no limits on the age of a person to whom ECT may
be administered, except in so far as it allows an emergency ECT order to be made
only for a person who is at least 16 years old.
52 Adult with
decision-making capacity permits ECT to be administered to a person 18 years
or over, if they have:
- consented to that;
- not withdrawn that consent, orally or in writing; and
- not had ECT administered 9 or more times since giving the consent, or, if the consent was for less than 9 times, not had ECT administered for that number of times or more.
The decision-making capacity principles at section 8 of the amended Act are critical to the interpretation of this provision.
The current Act only refers to a person’s decision-making capacity in relation to ECT when it comes to the ACAT making an emergency ECT order for a person over 16 years of age, who lacks the capacity to make decisions about ECT.
53 Adult without decision-making capacity allows ECT administration to a person who is 18 years of age or more who:
- lacks decision-making capacity to consent to ECT; but
- has an advance consent direction consenting to it;
- does not refuse or resist ECT administered in accordance with the direction; and
- is administered the ECT in accordance with the direction.
It also permits ECT to be administered to adults lacking the capacity to make decisions about ECT, if:
- the ECT is administered in accordance with an ECT order or an emergency ECT order in force in relation to the person and the person either does not refuse or resist that administration; or
- the person is subject to a psychiatric treatment order or forensic psychiatric treatment order.
The decision-making capacity principles at section 8 of the amended Act are critical to the interpretation of this provision.
54 Young person with decision-making capacity permits the administration of ECT to a person who has consented to that and not withdrawn that consent, orally or in writing, and is:
- 12 to 15 years old, if the ECT is administered in accordance with an ECT order in force in relation to that person; and
- 16 or 17 years old, if the ECT is administered in accordance with an ECT order or emergency ECT order in force in relation to that person.
The decision-making capacity principles at section 8 of the amended Act are critical to the interpretation of this provision.
55 Young person without decision-making capacity permits the administration of ECT to a person who lacks decision-making capacity to consent to that, so long as:
- for a 12 to 15 year old, the ECT is administered in accordance with an ECT order; or
- for a 16 or 17 year old, the ECT is administered in accordance with
an ECT order or emergency ECT order; and
- either the person does
not refuse or resist, or the person is subject to a psychiatric treatment order
or a forensic psychiatric treatment order.
The decision-making capacity principles at section 8 of the amended Act are critical to the interpretation of this provision.
55B Offence—unauthorised administration of electroconvulsive therapy provides in its:
- subclause (1) that it is an offence for anyone other than a doctor to administer ECT to a person and that the maximum penalty for that offence is 100 penalty units, imprisonment for 1 year, or both; and
- subclause (2), that it an offence for the doctor to administer ECT contrary to the requirements of Division 9.2.1 (Administration of ECT) and that the maximum penalty for that offence is 50 penalty units, imprisonment for 6 months, or both.
Division 9.2.2 Electroconvulsive therapy orders
55C Application for electroconvulsive therapy order permits the chief psychiatrist or doctor to apply to the ACAT for an ECT order in relation to a person, if the chief psychiatrist or doctor believes, on reasonable grounds, that the ACAT could make such an order for that person.
If the person is under 18 years of age, clause 55C also requires that:
- the application is supported by the evidence of another doctor; and
- at least one of the applicants is a child and adolescent psychiatrist.
Clause 55C(4) defines child and adolescent psychiatrist.
55D Consultation by ACAT—electroconvulsive therapy order specifies a list of people who the ACAT ‘must, as far as practicable’ consult, before making an ECT order in relation to a person who is not subject to a mental health order.
55E ACAT must hold hearing—electroconvulsive therapy order dictates that the ACAT cannot make an ECT order, without holding a hearing into the matter.
55F What ACAT must take into account—electroconvulsive therapy order dictates that the ACAT will, before making an ECT order, take into account all of a number of considerations that clause 55F specifies. These considerations include, among many others, whether the person:
- consents to ECT;
- refuses to consent to ECT; or
- has the decision-making capacity to consent to ECT.
Accordingly, the section 8 decision-making principles are critical to the interpretation of this clause.
55G Making of electroconvulsive therapy order specifies a number of matters of which the ACAT must be satisfied, before making an ECT order for a person, on an application under section 55C, when the person is of at least:
- 12 years old; or
- 12 years old, but under 18 years old.
The matters specified are different for a person who is at least 12 years old to those specified for a person who is of at least 12 years old, but under 18 years old.
One of the matters for both age cohorts turns on the person’s decision-making capacity to consent to ECT. Accordingly, the section 8 decision-making principles are critical to the interpretation of this clause.
Paragraph (3) of this clause compels ACAT to, as soon as practicable after it has made an ECT order under clause 55G, give a copy of the order to the:
- person in relation to whom the order is made;
- person who applied for the order;
- people consulted under section 55D (Consultation by
ACAT—electroconvulsive therapy order).
55H Content of
electroconvulsive therapy order provides that the ECT order must
specify:
- the matters, under sections 55G(1) or (2) (Making of electroconvulsive therapy order), of which the ACAT is satisfied; and
- the maximum number of times ECT may be administered to the person under the order.
Clause 55H also places certain conditions on the number of times the order may authorise ECT administration.
55I Person to be told about electroconvulsive therapy order compels the person in charge of the facility to ensure a person is:
- told about their ECT order, and the procedures authorised under it, before the person receives ECT, under the order, in that facility; and
- told in a ‘language and way of communicating that the person is most likely to understand’.
Clause 55I also stipulates that both of these requirements are to be fulfilled, irrespective of whether the person was present when the ECT order was made.
Division 9.2.3 Emergency electroconvulsive therapy orders
55J Application for emergency electroconvulsive therapy order permits the chief psychiatrist and doctor to jointly apply to the ACAT for an emergency ECT order in relation to a person, if a certain condition obtains. That condition is that the chief psychiatrist and doctor believe on reasonable grounds that the ACAT could reasonably make an ECT order for the person.
Clause 55J also requires that an application for an ECT order for the person accompany the application for an emergency ECT order.
Note this clause importantly interrelates with sections:
- 79 (Applications);
- 80 (Appearance);
- 53(3)(b) (Adult without decision making capacity); and
- 55(2)(b) (Young person without decision-making capacity).
55JA What ACAT must take into account—emergency electroconvulsive therapy order dictates that before making an ECT order, the ACAT will take into account all of a number of considerations that specified by clause 55F.
Note that section 79A(3) (Notice of hearing) does not apply in relation to the making of an emergency ECT order.
55K Making of emergency electroconvulsive therapy order specifies a number of matters of which the ACAT must be satisfied, before making an emergency ECT order for a person, on an application under section 55J, when the person is of at least 16 years old.
Some of these matters turn on the person’s decision-making capacity to consent to ECT. Accordingly, the section 8 decision-making principles are critical to the interpretation of this clause.
55L Content of an emergency electroconvulsive therapy order provides that the emergency ECT order must state the number of times ECT may be administered to a person, being not more than 3 times and the number of days in which the order expires, being not more than 7 days, after the order is made.
Note that under section 87, the ACAT must give a copy of the order to certain people within 24 hours.
56 Effect of later order terminates an emergency ECT order in relation to a person, if the ACAT makes an ECT order in relation to the same person.
Division 9.2.4 Records of electroconvulsive therapy
57 Doctor must record electroconvulsive therapy compels, in its subsection (1), a doctor who administers ECT to make a record of that administration, including whether it was:
- in accordance with an ACAT order; and
- with the person’s consent.
It also dictates in its subsection (2) that the doctor must give the record to the person in charge of the facility where the ECT was administered.
A doctor’s failure to comply with either requirement is an offence, with a maximum penalty of 20 penalty units.
58 Electroconvulsive therapy records to be kept for 5 years provides that a maximum penalty of 20 penalty units will apply, if the person in charge of a psychiatric facility fails to keep the record of ECT required by section 57(2) for at least 5 years after the day the record is given.
Part 9.3 Psychiatric surgery
59 Performance on people subject to orders of ACAT permits the performance of psychiatric surgery on a person, irrespective of any order that the ACAT may have made in relation to that person.
60 Psychiatric surgery not to be performed without approval or if person refuses makes it an offence for a doctor to perform psychiatric surgery on a person, if the doctor does not have the chief psychiatrist’s approval to do so, or if the doctor has been told, under section 66, that the person refuses to have the surgery.
This clause also provides that the maximum penalty for this offence is 100 penalty units, imprisonment for 1 year, or both.
61 Application for approval permits a doctor who proposes to perform psychiatric surgery on a person to apply to the chief psychiatrist for their approval to do so.
It requires that this application be in writing and accompanied by either:
- a copy of the person’s consent; or
- a copy of an order of the Supreme Court’s consent under section 65.
It further requires that the doctor give a copy of that application to the person, as soon as practicable after giving the application to the chief psychiatrist.
62 Application to be considered by committee mandates that the chief psychiatrist will, as soon as practicable after receiving an application under section 61, give a copy of it to the chairperson of the committee appointed under section 67.
Clause 62 also compels that chairperson to:
- give written notification of the application to a number of specified people, as soon as practicable after receiving it;
- convene a meeting of the committee to consider the application; and
- give a written report to the chief psychiatrist that includes a number of items specified in clause 62.
Clause 62 forbids the committee recommending that the chief psychiatrist approve the performance of psychiatric surgery, unless certain conditions specified by clause 62 obtain.
Finally, clause 62 dictates that the chief psychiatrist will ensure a copy of the committee’s report is placed on the subject person’s record.
63 Requirement for further information mandates that if the committee that is considering an application to perform psychiatric surgery requests further information or documents relevant to the application, the chief psychiatrist will require, by written notice, that the applicant doctor give that information or documents to the chief psychiatrist.
Clause 63 also relieves the committee of having to consider the application, until the required information or documents are given to the chief psychiatrist.
Finally, clause 63 compels the chief psychiatrist to give the committee chairperson any information or documents given to the chief psychiatrist pursuant to the committee’s request for them.
64 Application to be decided in accordance with committee’s recommendation dictates that the chief psychiatrist will decide an application, under section 61 (Application for approval), in accordance with the committee’s recommendation on it.
65 Consent of Supreme Court allows the Supreme Court to consent to the performance of psychiatric surgery on a person, on a doctor’s application to the Court for that consent, but only if the Court is satisfied of all the matters clause 65 specifies.
One of those matters turns on the person’s decision-making capacity to consent to psychiatric surgery. Accordingly, the section 8 decision-making principles are critical to the interpretation of this clause.
66 Refusal of psychiatric surgery pertains to a person who has consented to psychiatric surgery, or for whom the Supreme Court has made an order consenting to the psychiatric surgery under clause 65.
Clause 66 makes clear that the person may, before the surgery is performed, tell the chief psychiatrist or anyone else, that the person refuses to have psychiatric surgery. It also expressly permits the person to tell their refusal, orally or in writing.
If the person told is not the chief psychiatrist, clause 66 compels whoever is told to inform the chief psychiatrist of the refusal. It also makes failing to do so on pain of a maximum penalty of 50 penalty units, imprisonment for 6 months, or both.
Clause 66 also dictates that if the chief psychiatrist approved the psychiatric surgery, under section 64, and the chief psychiatrist is told of a person’s refusal, the chief psychiatrist must immediately:
- tell the doctor who is to perform the psychiatric surgery of the refusal; and
- ensure that written documentation of the refusal is placed on the person’s record.
Clause 66 stipulates that if the chief psychiatrist is told that a person refuses to have psychiatric surgery performed, any consent to the psychiatric surgery given by the person, or any Supreme Court order under section 65, ceases to have effect.
It further stipulates that if immediately before the date of the refusal, an application for the approval of the psychiatric surgery has been made, but has not been decided, the application is taken to have been withdrawn on that date, and any approval given by the chief psychiatrist for the psychiatric surgery ceases to have effect.
67 Appointment of committee specifies how the:
- committee referred to in the above clauses will be constituted;
- questions arising at the committee are to be decided; and
- committee members are to be remunerated.
Part 19.3 of the Legislation Act is relevant, here, because it contains certain requirements for the making of appointments, including acting appointments.
Chapter 10 Referrals by courts under Crimes Act and Children and Young People Act will contain the amended Act’s sections 68 to 75 relocated from the amended Act, by Amendment 2.43 of Bill Schedule 2.
Note that Schedule 2 of this Bill inserts a new section 72(6).
Section 72 of the amended Act makes certain requirements, and gives certain permissions, in respect of ACAT periodically reviewing:
- a court order, under the Crimes Act, Part 13 (Unfitness to plead and mental impairment), that requires a person to be detained in custody until the ACAT orders otherwise; or
- an ACAT order requiring a person to be detained in custody under the Act’s section 74 (Breach of conditions of release).
Chapter 11 ACAT procedural matters will contain the amended Act’s sections 76 (Meaning of subject person—ch 11) to 87 (Who is given a copy of the order), relocated from the amended Act, by Amendment 2.44 in Schedule 2 of the Bill.
Of these sections, Schedule 2 provides for amendments to:
- 78(1)(g) and (h) (When ACAT must be constituted by more members);
- 79A (3)(e) (Notice of hearing); and
- 87 (1)(ga) (Who is given a copy of the order).
Chapter 12 Administration will contain Parts 12.1 (Chief psychiatrist and mental health officers) to 12.5 (Sharing information—government agencies) of the amended Act relocated into this Bill, by Amendment 2.45 of Bill Schedule 2.
Schedule 2 contains no amendments to any provisions in Parts 12.1 to 12.5.
Chapter 13 Private psychiatric facilities
Part 13.1 Preliminary
123 Definitions—ch 13 defines, for Chapter 13, the terms:
- inspector;
- licence;
- licensed premises;
- licensee, and
- private psychiatric
facility.
Part 13.2 Licences
124 Meaning of eligible person—pt 13.2 defines the term eligible person for Part 13.2.
125 Licence—requirement to hold provides for two offences.
One is that a person commits an offence, if they operate a private psychiatric facility, and do not hold a licence to do so. The maximum penalty for this offence is 50 penalty units, imprisonment for 6 months, or both.
The second is that a person commits an offence, if they are a partner in a partnership operating a private psychiatric facility, and no partner in the partnership holds a licence to operate the facility. This offence has a maximum penalty of 50 penalty units, imprisonment for 6 months, or both.
126 Licence—application permits a person to apply to the Minister for a licence to operate a private psychiatric facility and lays down the conditions of operating such a facility.
It also allows the Minister to:
- write a request asking the applicant to give additional information or documents reasonably needed to decide the application; and
- refuse to further consider the application, if the applicant does not fulfill that request from the Minister.
127 Licence—decision on application enables the Minister to issue a licence to operate a private psychiatric facility, on application under section 126, if the Minister is satisfied on reasonable grounds of all of a number of matters specified in clause 127.
Further, clause 127:
- stipulates that the licence must state conditions about the maximum number of people for whom treatment, care or support may be provided at the licensed premises; and
- allows the licence to include a number of particular conditions enumerated in the clause, as well as anything else that the Minister is satisfied on reasonable grounds is appropriate.
128 Licence—term and renewal of licence requires that the licence state a term for the licence that is up to 3 years. It also:
- allows a licensee to apply for renewal of licence, in writing, to the Minister; and
- enables the Minister to renew the licence for a up to 3 years if satisfied on reasonable grounds of the matters regarding the applicant and premises that are mentioned in section 126(2).
129 Licence—transfer of licence permits a licensee to apply to the Minister to transfer a licence to someone else and specifies the conditions of applying.
It also empowers the Minister to:
- write a request asking the proposed new licensee to give additional information or documents reasonably needed to decide the application and to refuse to consider the application further, if the proposed new licensee does not fulfill that request;
- transfer the licence to the proposed new licensee, if the Minister is satisfied on reasonable grounds of two matters specified in the clause; and
- amend the transferred licence’s conditions, if the Minister is satisfied on reasonable grounds that the amendment is in the best interests of the people to whom treatment, care or support will be provided under the licence.
130 Licence—amendment initiated by Minister permits the Minister to amend a licence, by written notice, on the Minister’s own initiative, if satisfied on reasonable grounds that the amendment is in the best interests of people to whom treatment, care or support will be provided under the licence.
Clause 130 also:
- specifies the conditions on the Minister being allowed to do so, none of which apply if the licensee agrees, in writing, to the amendment; and
- declares that the amendment takes effect, on the day the amendment notice is given to the licensee, or a later day stated in the notice.
131 Licence—amendment on application by licensee allows the licensee to apply for an amendment to their licence. It also:
- stipulates what the Minister must do in response to such an application;
- permits the Minister to do so, if satisfied on reasonable grounds that the amendment is in the best interests of people to whom treatment, care or support will be provided under the licence; and
- declares that the amendment takes effect on the day the amendment notice is given to the licensee or a later day stated in the notice.
132 Licence—surrender allows a licensee to surrender their licence to the Minister, by giving the Minister the licence and written notice of its surrender. It also provides that the surrender takes effect, on the day the notice is given to the Minister, or a later day stated in the notice.
133 Licence—cancellation by notice empowers the Minister to cancel a licence, by written notice, if satisfied, on reasonable grounds, that the licensee has failed to comply with a condition of the licence. The clauses states several conditions on the Minister being allowed to do so, none of which apply if the licensee agrees, in writing, to the cancellation.
The clause also provides that the cancellation takes effect on the day the cancellation notice is given to the licensee or a later day stated in the notice.
134 Licence—emergency cancellation permits the Minister to make an emergency cancellation of a licence, by written notice, so long as the Minister is satisfied on reasonable grounds that circumstances exist in relation to the licence that give rise to an immediate risk of harm to the health or safety of people to whom treatment, care or support is provided under the licence.
The clause also specifies:
- a number of matters which must be stated in the emergency cancellation notice.
- that the cancellation takes effect on the day after the day the emergency cancellation notice is given to the licensee.
Part 13.3 Private psychiatric facilities—enforcement
135 Appointment of inspectors permits the Director-General to appoint inspectors for this Chapter.
It also compels such an inspector to exercise their functions under this chapter in accordance with the conditions of their appointment and any directions that the chief psychiatrist gives them.
135A Identity cards compels the Director-General to give an inspector an identity card that states and shows certain items specified in the clause.
It also provides that it is an offence for a person who stops being an inspector to not return their identity card to the Director-General, as soon as practicable, but not later than 7 days, after the day the person stops being an inspector. The maximum penalty for this offence is 1 penalty unit.
135B Powers of inspection empowers an inspector to enter licensed premises, at any reasonable time, and to do certain activities there that the clause specifies. These activities include, but are not limited to, requiring the occupier of the premises to give a copy of the records related to the conduct of the private psychiatric facility at the premises.
This clause provides two qualifications on the exercise of these powers. They are that if the inspector fails to show their identity card, when the occupier asks the inspector to do so:
- the inspector cannot remain on the premises; and
- the person is not required to give records to the inspector.
Finally, this clause defines occupier of licensed premises as including a person reasonably believed to be an occupier of the premises and a person apparently in charge of the licensed premises.
The privilege against self-incrimination, dealt with by section 170 of the Legislation Act, is relevant here.
135C Failing to comply with requirement of inspector makes it an offence for a person to not fulfill an inspector’s requirement that the person give the inspector a copy of records, or access to records, under section 135B(1)(c). The maximum penalty for this offence is 50 penalty units.
Chapter 14 Mental health advisory council will contain sections 139 (Establishment of mental health advisory council) to 139C (Procedures of mental health advisory council) relocated from the amended Act, by Amendment 2.46 in Bill Schedule 2.
Schedule 2 contains no amendments to these sections.
Chapter 15 Interstate application of mental health laws
Part 15.1 Preliminary
139CA Purpose—ch 15 states four purposes for Chapter 15, namely:
- the apprehension of people subject to certain warrants or orders made in other states and territories of Australia, or who may otherwise be apprehended, under mental health legislation;
- the interstate transfer of people under such legislation;
- the treatment, care or support in the ACT of people subject to mental health orders or similar orders made in other states and territories of Australia; and
- the operation of certain mental health orders between the ACT and other states and territories, and vice versa.
139CB Definitions—ch 15 states that for Chapter 15:
- authorised officer means an authorised ambulance paramedic; doctor; mental health officer; or police officer.
- community care service is a service that provides treatment, care or support for a person with a mental disorder living in the community.
- corresponding law means a law of another State that provides for the treatment, care or support of a person with a mental disorder or mental illness and includes a law of another State, including a law prescribed by regulation. Note that Part 1 of the Dictionary of the Legislation Act, provided by sections 2 and 144 of the Legislation Act, states that for ACT legislation ‘State means a State of the Commonwealth, and includes the Northern Territory’.
- interstate authorised person is a person prescribed by regulation.
- interstate community care facility is a facility that, under a corresponding law, provides treatment, care or support for a person with a mental disorder.
- interstate community care service is a service that, under a corresponding law, provides treatment, care or support for a person with a mental disorder.
- interstate involuntary treatment order is an order made under a corresponding law for the involuntary treatment of a person with a mental disorder or mental illness at an interstate mental health facility or in the community.
- interstate mental health facility means a mental health facility in another State to which a person may be admitted under a corresponding law for treatment, care or support for mental illness.
- interstate mental health service is a service in another State that, under a corresponding law, provides treatment, care or support for a person with mental illness living in the community.
- interstate patient means a person subject to an interstate involuntary treatment order.
- mental health service is a service in the ACT that provides treatment, care or support for a person with mental illness who is living in the community.
139CC Authority to enter into agreements authorises the Minister to enter into agreements with a Minister of another state or territory of Australia about any matter relating to the operation of Chapter 15 or a corresponding law.
It also stipulates that any such agreements will be notifiable instruments.
139CD Authorised officer and interstate authorised person may exercise certain functions allows an authorised officer or an interstate authorised person to exercise any function conferred on the officer or person, under a corresponding law, or under an involuntary treatment order made in another state, in relation to an interstate patient in the ACT.
This clause also supplies a power to make regulations that impose limits on the people who may act under the clause and the treatment that may be given, or functions exercised, under it.
139CE Medication for person being transferred allows a person being transferred under this Chapter to be given medication by an appropriately trained person, if they believe on reasonable grounds both that giving the medication is in the best interests of the safe and effective treatment, care or support of the person and that the medication has been prescribed by a doctor.
The clause also requires details about any medication given under this clause to be included in the person’s record.
Part 15.2 Apprehension of people in breach of certain orders
139CF Apprehension of interstate patient in breach of interstate involuntary treatment order permits an authorised officer or interstate authorised person to apprehend, in the ACT, an interstate patient in breach of an interstate involuntary treatment order, but only if:
- they would be subject to apprehension under a corresponding law of the State that issued their interstate involuntary treatment order, or
- if a warrant or another document, issued under a corresponding law, authorises their apprehension.
It compels the apprehender to, as soon as reasonably practicable:
- tell the patient why they are being apprehended;
- ensure the patient has adequate opportunity and assistance to notify a relative or friend of the apprehension;
- tell an interstate mental health facility in the State that issued
the interstate involuntary treatment order about the apprehension;
and
- transfer the patient either to:
• an ACT approved mental health facility to determine whether the patient requires treatment before being transferred; or
• to an interstate mental health facility in the State that issued the patient’s order.
Sections 139F (Powers of entry and apprehension) and 140 (Powers of search and seizure) apply here.
139CG Apprehension of person in breach of mental health order or forensic mental health order permits an authorised officer or interstate authorised person to apprehend an ACT patient, in another State, of an ACT patient in breach of a mental health order or forensic mental health order, so long as the ACT patient would be subject to apprehension, under this Act, if the patient were in the ACT and the apprehension is allowed under a corresponding law of the other State.
It compels the apprehender to as soon as reasonably practicable:
- tell the patient why they are being apprehended; and
- transfer the person either to an interstate mental health facility to determine whether the patient requires treatment before being transferred to an ACT approved mental health facility or community care facility.
Further, clause 139CG requires that, as soon as reasonably practicable after the ACT patient is transferred to an ACT facility, that the person in charge of that facility must:
- ensure that the patient has adequate opportunity and assistance to notify a relative or friend of the apprehension and transfer; and
- take all reasonable steps to tell at least 1 of a number of people clause 139CG lists.
Sections 139F (Powers of entry and apprehension) and 140 (Powers of search and seizure) apply here.
Part 15.3 Transfer of certain people from ACT
139CH Interstate transfer—person under psychiatric treatment order or community care order provides that the relevant person may apply to ACAT to subject a person to an interstate transfer order, if the person is:
- already subject to a psychiatric treatment order, or community care order; and
- receiving treatment, care or support under that order, in or from an approved mental health facility, a mental health service, an approved community care facility, or a community care service.
The clause states that the relevant person may only make this application, if the relevant person believes, on reasonable grounds, that the ACAT could reasonably subject that person to an interstate transfer order under this clause. The relevant person is the chief psychiatrist, in respect of a person subject to a psychiatric treatment order, and the care coordinator, in respect of a person subject to a community care order.
The clause defines interstate transfer order as an order to transfer:
- a person to an interstate mental health facility or an interstate community care facility; or
- the responsibility to provide treatment, care or support for a person to an interstate mental health service or interstate community care service.
The clause compels the ACAT to hear and decide such an application, as soon as practicable.
It dictates that ACAT cannot make an interstate transfer order, unless it believes, on reasonable grounds, all of the following:
- it is in the best interests of the safe and effective treatment, care or support of the person; and
- the transfer is allowed under a corresponding law; and
- the person in charge of the interstate facility or service has agreed to the transfer.
The clause requires that in satisfying itself that it is in the best
interests of the person, ACAT must take into account the person’s views
and wishes and, as far as practicable, the other people nominated in clause
139CH(4)(b).
The clause mandates that if ACAT makes an order under this
clause, ACAT will:
- as soon as practicable, after making it, give a copy of the order to the person, the relevant person, and the person in charge of the relevant interstate facility or service; and
- as far as practicable, notify the people enumerated in subclause (4)(b).
The clause permits an authorised officer, or an interstate authorised person, to take the subject person to the interstate facility or service.
Sections 139F (Powers of entry and apprehension) and 140 (Powers of search
and seizure) apply here.
139CI Interstate transfer—person under
forensic psychiatric treatment order or forensic community care order
largely replicates the process provided by clause 139CH. It differs from it in:
- providing for an interstate transfer order for a person who is subject to an ACT forensic psychiatric treatment order or forensic community care order; and
- requiring that ACAT, as far as practicable, consult with, and notify, certain people involved in serving persons who have become subject to bail and community-based sentences in the justice system.
As clause 139CH requires, the person must also be receiving treatment, care or support under that order, in an approved mental health facility or from a mental health service or in an approved community care facility or from a community care service.
Clause 139CI defines interstate transfer order in the same way as clause 139CH.
Clause 139CI provides that the relevant person may apply to the ACAT to subject the person to an interstate transfer order, if the relevant person believes on reasonable grounds that the ACAT could reasonably do so. The relevant person is the chief psychiatrist, in respect of a person subject to a forensic mental health order, and the care coordinator, in respect of a person subject to a forensic community care order.
The clause requires the ACAT to hear and decide such an application, as soon as practicable. It also dictates that ACAT cannot make an interstate order, under this clause, unless it believes, on reasonable grounds, all of the following:
- it is in the best interests of the safe and effective treatment, care or support of the person; and
- the transfer is allowed under a corresponding law; and
- the person in charge of the interstate facility or service has agreed to the transfer.
The clause requires that in satisfying itself that it is in the best interests of the person, ACAT must take into account the views and wishes of the person and, as far as practicable, of the other people nominated in the clause’s subclause 4(b).
The clause mandates that if ACAT makes an order under this clause, ACAT will:
- as soon as practicable, after making it, give a copy of the order to the person, the relevant person, and the person in charge of the relevant interstate facility or service; and
- as far as practicable, notify the people enumerated in subclause 4(b).
The clause permits an authorised officer, or an interstate authorised person, to take the subject person to the interstate facility or service.
Sections 139F (Powers of entry and apprehension) and 140 (Powers of search and seizure) apply here.
139CJ Transfer to interstate mental health facility—emergency detention permits the chief psychiatrist to direct the transfer to an interstate mental health facility of a person detained under Chapter 6 (Emergency detention), who is being assessed, or receiving treatment, care or support under that Chapter.
However, the clause proscribes the chief psychiatrist making this direction, unless:
- the chief psychiatrist believes on reasonable grounds that the transfer is in the best interests of the safe and effective treatment, care or support of the person;[119] and
- such a transfer is allowed under a corresponding law; and
- the person in charge of the interstate mental health facility agrees to the transfer; and
- before giving the direction, the chief psychiatrist has, as far as practicable, notified certain people specified by subclause (3)(a) that a direction under this clause is being considered; and
- taken into account the views of those specified people, as far as practicable, as well as the person’s views and wishes, in respect of the proposed direction.
The clause mandates that if the chief psychiatrist gives such a direction, under this clause, they will:
- as soon as practicable, after giving it, give a copy of it to the person, the relevant person, and the person in charge of the relevant interstate facility or service; and
- as far as practicable, notify the people enumerated in subclause (3)(a).
The clause permits an authorised officer, or an interstate authorised person, to take the subject person to the interstate facility or service.
Sections 139F (Powers of entry and apprehension) and 140 (Powers of search
and seizure) apply here.
139CK Interstate transfer—when ACT
order stops applying provides that a person stops being subject to a
psychiatric treatment order, or a community care order, made under this Act,
when the person, or responsibility for them, is transferred under this Part and
the person is:
- admitted to an interstate mental health facility or an interstate community care facility; or
- accepted into the care of an interstate mental health or community care service; or
- made the subject of an interstate involuntary treatment order.
Part 15.4 Transfer of certain people to ACT
139CL Transfer of interstate patient to approved mental health facility permits the chief psychiatrist for an interstate patient to transfer that patient to an approved mental health facility in the ACT, if the person is subject to an interstate involuntary treatment order that allows for detention at an interstate mental health facility.
The clause allows the ACT chief psychiatrist to agree to the transfer, if the ACT chief psychiatrist believes, on reasonable grounds, that the interstate patient’s transfer to the ACT is both:
- in the best interests of that patient’s safe and effective treatment, care or support; and
- allowed under a corresponding law.
139CM Transfer of responsibility to provide treatment, care or support in the community for interstate patient permits the chief psychiatrist for an interstate patient to transfer responsibility for that patient to the ACT chief psychiatrist, if the person is subject to an interstate involuntary treatment order that allows treatment in the community.
The clause allows the ACT chief psychiatrist to agree to the transfer, if the ACT chief psychiatrist believes, on reasonable grounds, that the patient’s transfer to the ACT is both:
- in the best interests of that patient’s safe and effective treatment, care or support; and
- allowed under a corresponding law.
139CN Transfer of person apprehended in another State to approved mental health facility permits an authorised officer, or an interstate authorised person, to take a person apprehended in another State, under a corresponding law, to an approved mental health facility in the ACT.
However, it only so permits, if that authorised officer or person believes, on reasonable grounds, that taking the person to the ACT facility is both:
- in the best interests of the person’s safe and effective treatment, care or support; and
- allowed under a corresponding law.
This clause applies Chapter 6 (Emergency detention) to a person apprehended under this clause, as if the person had been apprehended under section 37 (Apprehension).
Sections 139F (Powers of entry and apprehension) and 140 (Powers of search and seizure) also apply here.
Part 15.5 Interstate operation of certain orders
139CO Mental health order relating to interstate person permits a person who does not usually live in the ACT to be subject to a mental health order, under this Act, but only if both of two conditions obtain.
These conditions are that:
- the facility or service that is treating, caring for, or supporting, the person is located in the ACT; and
- the order is allowed under a corresponding law of the State in which the person usually lives.
The clause provides one qualification to a restriction order mentioned in section 36X (Criteria for making restriction order with psychiatric treatment order) that is made for a person who does not usually live in the ACT. That qualification is that the order may only impose restrictions on the person’s actions within the ACT.
139CP Implementing interstate involuntary treatment order for temporary ACT resident permits a person who is temporarily living in the ACT to be given treatment, care and support in the ACT, if they are subject to an interstate involuntary treatment order that makes provision for treatment, care or support in the community. However, the clause makes this contingent on the ACT chief psychiatrist being satisfied, on reasonable grounds, that:
- the person has a ‘mental illness’, a term defined in section 10 of the Act; and
- the person accepts the treatment, care or support; and
- that treatment, care or support in the ACT is in the person’s best interests and it is expected to be needed for a period not exceeding 4 weeks at a time.
The clause allows that treatment, care or support to be given by:
- an authorised officer, if they are permitted to do so under a corresponding law of the State that issued the interstate involuntary treatment order; or
- an interstate authorised person.
Chapter 16 Notification and review of decisions will contain sections 139CR (Meaning of reviewable decision) to 139CT (Applications for review) relocated from the amended Act, by Amendment 2.47 in Bill Schedule 2.
Chapter 17 Miscellaneous will contain sections 139D (Approval of mental health facilities) to 147 (Regulation making power), relocated from the amended Act, by Amendment 2.48 in Bill Schedule 2.
Schedule 2, [2.29] to [2.32], also respectively:
- amend sections 139F(1)(e) and (f);
- insert new section 139F(1)(l) to (q);
- insert new section 140(1)(o) to (t); and
- insert new section 140AA.
Chapter 18 Repeals and consequential amendment provides two clauses:
- one that will repeal the current Act and legislative instruments under it, because the Bill, if enacted, will be the Mental Health Act 2015, and new legislative instruments will be made under that Act, if need be; and
- a second that provides for the amendments to legislation that are specified in Schedule 2 of the Bill.
The amendments specified in Schedule 2 are to:
- the Mental Health (Treatment and Care) Act 1994, as amended by the Amendment Act;
- several Acts, apart from the Mental Health (Treatment and Care) Act 1994; and
- several Regulations.
All these amendments are necessitated by how these Acts and Regulations need to be able to rely on provisions of the Bill’s enactment.
Chapter 40 Transitional
Part 40.1 General
400 Definitions—ch 40 defines, for this Chapter:
- commencement day as ‘the day this chapter commences’; and
- repealed Act as ‘the Mental Health (Treatment and Care) Act 1994 as in force immediately before the commencement day’.
401 Transitional regulations empowers the making of regulations that prescribe transitional matters necessary, because of the Amendment Act or this Bill’s enactment. This clause also specifies that:
- a regulation may modify this Chapter (Transitional), including in relation to another ACT law, to make provision for anything that is not, or is not adequately or appropriately, dealt with by this Chapter.
- a regulation modifying this Chapter has effect despite anything elsewhere in this Bill’s enactment.
402 Expiry—ch 40 makes this Chapter expire 2 years after
‘commencement day’, as defined at the beginning of this Chapter.
As per section 88 of the Legislation Act, a transitional provision is
repealed on its expiry, but continues to have effect after its repeal.
Part 40.2 Transitional—rights of people with mental disorder or mental illness
403 Rights in relation to information and communication puts beyond doubt that the responsible person for a facility must comply with section 15 (Information to be given to people) in relation to a person receiving treatment, care or support, even if they began receiving that at the facility, before the commencement day.
Note that ‘responsible person’, here, has the same meaning as that given to this term by section 14 of the amended Act, which provides that the responsible person is the:
- facility owner, for a mental health facility not conducted by the Territory;
- chief psychiatrist, for a psychiatric facility conducted by the Territory; and
- director-general of the administrative unit responsible for the conduct of the facility.
Part 40.3 Transitional—mental health orders
Division 40.3.1 Applications
404 Application by person with mental illness or mental dysfunction— unfinished applications is about what occurs if a mental health order application is made under the repealed Act’s section 10 (Application by mentally dysfunctional or mentally ill people), and is not decided by ACAT before commencement day.
The clause provides that such an application is to be dealt with as an assessment order application, under Bill section 33 (Applications by people with mental disorder or mental illness—assessment order).
405 Application by chief psychiatrist or care coordinator—unfinished applications is about what occurs if, before commencement day, the chief psychiatrist or care coordinator applies for a mental health order, under the repealed Act’s section 11 (Applications by other people), and ACAT has not decided that application before commencement day.
The clause provides that such an application it is to be dealt with as one that was made under Bill section 36O (Applications for mental health orders).
406 Application by certain other people—unfinished applications is about what occurs if, before commencement day, a person, other than the chief psychiatrist or the care coordinator, makes a mental health order application, under the repealed Act’s section 11 (Applications by other people) and ACAT has not decided the application.
The clause provides that the applications then must be dealt with as an assessment order application, under Bill section 34 (Applications by other people—assessment order).
407 Application by referring officers—unfinished referrals provides that, if before commencement day, ACAT has not decided a referral to it for a mental health order, made under the repealed Act’s section 13 (Referrals to ACAT), the referral is to be dealt with as an assessment order application, under Bill section 35 (Applications by referring officers—assessment order).
Division 40.3.2 Psychiatric treatment orders
408 Psychiatric treatment order—in force before commencement day regards a person subject to a psychiatric treatment order under the repealed Act’s section 28 (Criteria for making psychiatric treatment order), immediately before commencement day.
The clause provides that, on and after commencement day, the order is to be dealt with, in accordance with its particular terms, as an order under Bill section 36V (Psychiatric treatment order).
409 Restriction order with psychiatric treatment order—in force before commencement day regards a person subject to a restriction order, under the repealed Act’s section 30 (Criteria for making restriction order with psychiatric treatment order), immediately before commencement day.
The clause provides that on and after commencement day, that order is to be dealt with, in accordance with its particular terms, as a restriction order under Bill section 36X (Criteria for making restriction order with psychiatric treatment order).
410 Chief psychiatrist role—determination in force before commencement day regards a person subject to a psychiatric treatment order, under the repealed Act’s section 28 (Criteria for making psychiatric treatment order), and a determination, under the repealed Act’s section 32 (Role of chief psychiatrist), immediately before commencement day.
The clause provides that on and after commencement day, the determination is to be dealt with, in accordance with its particular terms, and as a determination under Bill section 36Z (Role of chief psychiatrist—psychiatric treatment order).
411 Action if psychiatric treatment order no longer appropriate—notice given but not considered by ACAT provides that a notice given under the repealed Act’s section 34 (Action if psychiatric treatment order no longer appropriate) ceases to have effect, if:
- before commencement day, the chief psychiatrist has given notice, under section 34, on a person’s psychiatric treatment order; and
- immediately before commencement day, ACAT has not finalised that order’s review, under the repealed Act’s section 36L (Review, variation and revocation of orders).
This clause also provides that, as soon as practicable after commencement day, the chief psychiatrist must give notice about the person’s psychiatric treatment order, under Bill section 36ZB (Action if psychiatric treatment order no longer appropriate—no longer person in relation to whom ACAT could make order).
Division 40.3.3 Community care orders
412 Community care order—in force before commencement day provides that, if immediately before commencement day, a person is subject to a community care order, under the repealed Act’s section 36 (Criteria for making community care order), then, on and after commencement day, that order is to be dealt with, in accordance with its particular terms, and as an order under Bill section 36ZD (Community care order).
413 Restriction order with community care order—in force before commencement day provides that if, immediately before commencement day, a person is subject to a restriction order under the repealed Act’s section 36B (Criteria for making restriction order with community care order), then, on and after commencement day, the restriction order is to be dealt with, in accordance with its particular terms, and as a restriction order under Bill section 36ZF (Criteria for making restriction order with community care order).
414 Care coordinator role—determination in force before commencement day if, immediately before commencement day, a person is subject to a community care order and is also subject to a determination under the repealed Act’s section 36D (Role of care coordinator), then, on and after commencement day, the determination is to be dealt with, in accordance with its particular terms, and as a determination under Bill section 36ZH (Role of care coordinator—community care order).
415 Action if community care order no longer appropriate—notice given but not considered by ACAT provides that on commencement day, a notice given under the repealed Act’s section 36F (Action if community care order no longer appropriate) ceases to have effect, if:
- before commencement day, the care coordinator has given notice under section 36F; and
- immediately before commencement day, ACAT has not finalised the order’s review under the repealed Act’s section 36L (Review, variation and revocation of orders).
The clause also dictates that, as soon as practicable after commencement day, the care coordinator must give notice about the person’s community care order, under Bill section 36ZJ (Action if community care order no longer appropriate—no longer person in relation to whom ACAT could make order).
Division 40.3.5 Other matters
416 Forensic mental health orders—people required to submit to ACAT jurisdiction before commencement day is about a person required by a court, before commencement day, to submit to ACAT’s jurisdiction, under Part 13 (Unfitness to plead and mental impairment) of the ACT Crimes Act, or Part 1B (Sentencing, imprisonment and release of federal offenders) of the Crimes Act 1914 (Cwlth).
The clause removes any doubt that sections 48ZA (Forensic psychiatric treatment order) and 48ZH (Forensic community care order) apply in relation to such a person.
Part 40.4 Transitional—emergency detention
417 Apprehension before commencement day provides that if, before commencement day, a person is apprehended under the repealed Act’s section 37 (Apprehension), then on and after commencement day, the apprehension is taken to be an apprehension under Bill section 37 (Apprehension).
418 Authorisation of involuntary detention before commencement day regards a person who is involuntarily detained at an approved mental health facility, under an authorisation under the repealed Act’s section 41(1) (Authorisation of involuntary detention).
The clause provides that if the person is so detained, before commencement day, then, on and after commencement day, then the authorisation under the repealed Act is to be dealt with, in accordance with its particular terms, and as an authorisation under Bill section 41(1) (Authorisation of involuntary detention).
This clause also provides for when, before commencement day, an application for further detention has been made under the repealed Act’s section 41(2)(b) (Authorisation of involuntary detention), and, immediately before commencement day, ACAT has not decided the application. It states that, on and after commencement day, such an application is to be dealt with as an application under Bill section 41(2) (Authorisation of involuntary detention).
Finally, this clause provides for when, before commencement day, ACAT orders a further period of involuntary detention under the repealed Act’s section 41(2) (Authorisation of involuntary detention). The clause states that, on and after commencement day, such an order is to be dealt with, in accordance with its particular terms, as an order under Bill section 41(3) (Authorisation of involuntary detention).
Part 40.5 Transitional—interstate application of mental health laws
419 Interstate agreements notified before commencement day provides that the following instruments are to be taken as entered into, and notified under, Bill clause 139CC (Authority to enter into agreements):
- Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2002 (No 1) (NI2002-405);
- Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2002 (No 2) (NI2002-406);
- Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2003 (NI2003-523);
- Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2004 (NI2004-500); and
- Mental Health (Treatment and Care) Interstate Application of Mental Health Laws Agreement 2011 (NI2011-196).
These instruments were originally entered into, and notified, under section 48C of the repealed Act. Clause 419 ‘saves’ them.
Schedule 1 Reviewable decisions
The Bill relocates, into Chapter 16, sections 139CR (Meaning of reviewable decision – ch 16), 139CS (Reviewable decision notices), and 139CT (Applications for review), all of which refer to ‘Schedule 1 Reviewable decisions’.
Schedule 1 (Reviewable decisions) provides a table of the:
- decisions that Bill section 139CR makes reviewable;
- persons that Bill section 139CS dictates must be given a reviewable decision notice; and
- persons that Bill section 139CT empowers to apply to ACAT for review of a reviewable decision.
In the case of each reviewable decision provided by these three sections and Schedule 1, the Bill requires a reviewable decision notice to be given to the person who the Bill permits to apply to ACAT for the decision’s review.
Schedule 1 lays this out in a table, which enumerates the following:
- The applicant for leave is the person who can apply to ACAT for review of a decision to refuse to grant leave, made under section 48ZU (Grant of leave for person detained by relevant official). This section is one that the Bill relocates into Chapter 7 (Forensic mental health).
- The applicant for leave is the person who can apply to ACAT for review of a decision to refuse to grant leave, made under section 48ZV (Leave in emergency or special circumstances). This section is one that is one that the Bill relocates into Chapter 7 (Forensic mental health).
- The applicant for leave is the person who may apply to ACAT for review of the decision to revoke leave, made under section 48ZW (Revocation of leave granted by relevant official). This section is one that the Bill relocates into Chapter 7 (Forensic mental health).
- The applicant for leave is the person who may apply to ACAT for review of the decision to refuse to grant leave, made under section 48ZZQ (Grant of leave for correctional patients). This section is one that the Bill relocates into Chapter 8 (Correctional patients).
- The applicant for leave is the person who may apply to ACAT for review of the decision to revoke leave, made under section 48ZZR (Revocation of leave for correctional patients). This section is one that the Bill relocates into Chapter 8 (Correctional patients).
- The applicant for the licence is the person who may apply to ACAT for review of the decision to refuse to issue a licence, made under clause 127 (Licence – decision on application), in Bill Chapter 13 (Private psychiatric facilities).
- The applicant for renewal of the licence is the person who may apply to ACAT for review of the decision to refuse to renew a licence, made under clause 128 (Licence – term and renewal of licence), in Bill Chapter 13 (Private psychiatric facilities).
- The licensee and the proposed new licensee are the persons who may apply to ACAT for review of the decisions to refuse to transfer a licence, made under clause 129 (Licence – transfer of licence), in Bill Chapter 13 (Private psychiatric facilities).
- The licensee is the person who may apply to ACAT for review of the decision to amend a licence, made under clause 130 (Licence – amendment initiated by Minister), in Bill Chapter 13 (Private psychiatric facilities).
- The licensee is the person who may apply to ACAT for review of the decision to refuse to amend a licence, made under clause 131 (Licence – amendment on application by licensee), in Bill Chapter 13 (Private psychiatric facilities).
- The licensee is the person who may apply to ACAT for review of the decision to cancel a licence, made under clause 133 (Licence – cancellation by notice), in Bill Chapter 13 (Private psychiatric facilities).
- The licensee is the person who may apply to ACAT for review of the decision to cancel a licence, made under clause 134 (Licence – emergency cancellation), in Bill Chapter 13 (Private psychiatric facilities).
Schedule 2 Legislation amended
Part 2.1 Mental Health (Treatment and Care) Act 1994
Division 2.1.1 Amendments
[2.1] Section 15 (1) (b) (vi) omits this section from the current Act.
[2.2] New section 15(4)(g) inserts ‘(g) if the person has a carer—the carer’ into the list of persons to whom the responsible person for a mental health facility or community care facility, or mental health professional, must take reasonable steps to give a copy of the information required by 15(1)(b) (Information to be given to people).
[2.3] Section 27 (4) and note adds:
- that an advance consent direction, which gives advance consent for ECT, must state the maximum number of times, not exceeding 9 times, that ECT may be administered to the person under that consent; and
- a note that if a form is approved under section 146A for this provision, the form must be used.
[2.4] Section 36H states that as well as a police officer, an authorised ambulance paramedic, doctor or mental health officer may execute a removal order in relation to a person, under section 36G(2). The current section 36G(2) only permits a police officer to execute a removal order.
[2.5] Section 36M(2) corrects a grammatical error, by omitting ‘ACAT, must’ and substituting it with ‘ACAT must,’.
[2.6] Section 36R(1)(g) inserts ‘parole or’ before ‘licence’, so that the ACAT is required to consult, as far as practicable, with the corrections director-general, before ACAT makes a mental health order in relation to a person who is on parole.
[2.7] Section 36R(1)(h) removes the erroneous, redundant article ‘a’, from section 36R(1)(h).
[2.8] Section 36R(2) replaces ‘if the ACAT has contact details for the carer’ with ‘as far as practicable’. The outcome of this is that ACAT is required to, as far as practicable’ consult with a person’s carer, before making a mental health order in relation to the person, rather than this consultation being contingent on the ACAT having the carer’s ‘contact details’.
[2.9] Section 36Z(5)(a)(viii) inserts ‘parole or’ before ‘licence’, so that the section now requires the chief psychiatrist to consult with the corrections director-general, as far as practicable, before the chief psychiatrist makes a determination in relation to a person who is subject to a psychiatric treatment order and on parole.
[2.10] Section 36ZC(5) omits all instances of ‘confinement or’, from this provision, as they are errors.
[2.11] Section 36ZH(3)(a)(viii) inserts ‘parole or’ before ‘licence’, so that the section now requires the care coordinator to consult with the corrections director-general, as far as practicable, before the care coordinator makes a determination in relation to a person who is subject to a community care order and on parole.
[2.12] Section 36ZK(5) omits all instances of ‘confinement or’, from this section, as they are errors.
[2.13] Section 42(2) omits ‘at least 1 of’ from this section, because it is inappropriate and not in the interests of patient safety, for a doctor or mental health officer to advise that a person has been involuntarily detained under sections 38 or 41, and where and for what reasons, to say, the person’s nominated person, but not the person’s parent, if the person is a child, or the person’s nominated person, but not their guardian, if the person has a guardian, and so on.
[2.14] Sections 42(3) and (4) newly requires that:
- the ACAT, as soon as practicable after ordering under section 41(3) that a period of involuntary detention be extended, take all reasonable steps to give the name of the person, where they are being detained, and why to the people mentioned in subsections (2)(a) to (e).
- the doctor or mental health officer to advise the public advocate if they were unable to give the name of the detained person, where they are being detained, and why, to no one connected to the person.
- the doctor or mental health officer to advise the public advocate if they were unable to give the name of the detained person, where they are being detained, and why, to:
• a person with parental responsibility for the detained person, should the detained person be a child, and who the information on the detained person was given to, if anyone;
• the detained person’s guardian under the Guardianship and Management of Property Act 1991, if the detained person has a guardian, and who the information on the detained person was given to, if anyone; and
• the detained person’s enduring power of attorney under the Powers of Attorney Act 2006, if the detained person appears to have impaired decision-making capacity within the meaning of that Act, and who the information on the detained person was given to, if anyone.
[2.15] Section 48S, definition of community-based sentence omits this definition, as this is now in the Dictionary to the Bill, supplied by Bill clause 3.
[2.16] Section 48T heading shortens the heading section 48T ‘Applications for forensic mental health orders—detainees and people under community-based sentences’ to ‘Applications for forensic mental health orders—detainees etc’.
[2.17] Section 48T(1) and (2) is comprised of two subsections.
Subsection (1) extends the application of section 48T from only people on community based sentences to people on those sentences, as well as people released on parole or on licence under section 299 of the Crimes (Sentence Administration) Act 2005 and to young detainees and offenders.
Subsection (2) makes the relevant person applying to the ACAT for a forensic mental health order in relation to a person contingent on the relevant person believing, on reasonable grounds that the subject person is someone in relation to whom the ACAT could reasonably make an order under sections 48ZA (Forensic psychiatric treatment order) or 48ZH (Forensic community care order). This threshold test in not in the current section 48T(2).
[2.18] Section 48Y(1)(b) removes the requirement, from this section, that the ACAT consider ‘(b) whether the person consents, refuses to consent or has the decision-making capacity to consent, to proposed treatment, care or support’, in making a person subject to a forensic mental health order.
[2.19] Section 48ZA(1)(b) extends the application of section 48ZA(1)(b) from only people on a community based order referred to the ACAT for a forensic mental health order under division 7.1.2 to anyone so referred. This corrects an error issuing from the Amendment Act.
[2.20] Section 48ZC(6)(a)(vii) inserts ‘parole or’ before ‘licence’, so that the section now requires the chief psychiatrist to consult with the corrections director-general, as far as practicable, before the chief psychiatrist makes a determination in relation to a person who is subject to a forensic psychiatric treatment order and on parole.
[2.21] Section 48ZG(5) omits all instances of ‘confinement or’, from this provision, as they are errors.
[2.22] Section 48ZH(1)(b) extends the application of section 48ZH(1)(b) from only people on a community based order referred to the ACAT for a forensic mental health order under division 7.1.2 to anyone so referred. This corrects an error issuing from the Amendment Act.
[2.23] Section 48ZJ(4)(a)(vii) inserts ‘parole or’ before ‘licence’, so that the section now requires the care coordinator to consult with the corrections director-general, as far as practicable, before the chief psychiatrist makes a determination in relation to a person who is subject to a forensic community care order and on parole.
[2.24] Section 48ZN(5) omits all instances of ‘confinement or’, from this provision, as they are errors.
[2.25] New section 72(6) inserts subsection (6) to ensure the ACAT, as far as practicable, advises a list of people specified in subsection (6) that a person’s detention, initiated by a court order under Part 13 of the Crimes Act, has been continued, because the ACAT has decided to continue it, on conducting the review of that detention required by subsection (2).
[2.26] Section 78(1)(g) and (h) replaces paragraphs (g) and (h) of section 78(1) with: ‘(g) an ECT order under section 55G (Making of electroconvulsive therapy order);
(h) an emergency ECT order under section 55K (Making of emergency electroconvulsive therapy order);’.
This change is to align this section’s mentions of ECT clauses with how those ECT clauses now read in this Bill.
[2.27] Section 79A(3)(e) replaces paragraph (e) of section 79A(3) with: ‘(e) the making of an emergency ECT order under section 55K (Making of emergency electroconvulsive therapy order);’.
Again, this change is to align this section’s mentions of ECT clauses with how those ECT clauses now read in this Bill.
[2.28] Section 87(1)(ga) extends the coverage of paragraph (ga) to all people who are now covered by section 48T, rather than only people on community-based sentences. For more on this, see Amendment [2.17] to section 48T, above.
[2.29] Section 139F(1)(e) and (f) removes ‘(e) section 48ZG (Powers in relation to forensic psychiatric treatment order)’ and ‘(f) section 48ZN (Powers in relation to forensic community care order)’ from the list of powers to which the section 139F powers of entry and apprehension apply. Sections 48ZG and 48ZN do not need to be in this section 139F list.
For a person subject to a forensic psychiatric treatment order, the chief psychiatrist will have determined whether the person:
- may live in the community and, if so, when and where they will attend to receive treatment, care and support; or
- must be admitted to an approved mental health facility, and, if so, whether the person is permitted to have leave from the facility.
That is because the chief psychiatrist is required to do so, under section 48ZC(2) (Role of chief psychiatrist – forensic psychiatrist treatment order).
Similarly, for a person subject to a forensic community care order, the care coordinator will have determined when and where the person is required to attend to receive treatment care or support or undertake a counseling, training, therapeutic or rehabilitation program. That is because the care coordinator is required to so, by section 48ZJ(2).
Accordingly, the section 139F powers of entry and apprehension will not need to be used in respect of persons subject to forensic psychiatric treatment or community care orders, because they will be:
- in attendance at treatment; or
- absconding from a facility, in which case an authorised person can rely on the section 48ZY (Contravention of forensic mental health order – absconding from a facility) already listed in section 139F(1) to apprehend, remove and take the person to a facility; or
- in the community contravening their order, in which case an authorised person can rely on the section 48ZX (Contravention of forensic mental health order) already listed in section 139F(1) to apprehend, remove and take the person to a facility.
[2.30] New section 139F(1)(l) to (q) extends the section 139F powers of entry and apprehension, and its safeguards on those powers, to exercises of functions under the following clauses:
- 139CF (Apprehension of interstate patient in breach of interstate involuntary treatment order);
- 139CG (Apprehension of person in breach of mental health order or forensic mental health order);
- 139CH (Interstate transfer—person under psychiatric treatment order or community care order);
- 139CI (Interstate transfer—person under forensic psychiatric treatment order or forensic community care order);
- 139CJ (Transfer to interstate mental health facility— emergency detention); and
- 139CN (Transfer of person apprehended in another State to approved mental health facility).
[2.31] New section 140(1)(o) to (t) extends the section 140 powers of search and seizure, and its safeguards, to the exercise of functions under these clauses:
- 139CF (Apprehension of interstate patient in breach of interstate involuntary treatment order);
- 139CG (Apprehension of person in breach of mental health order or forensic mental health order);
- 139CH (Interstate transfer—person under psychiatric treatment order or community care order);
- 139CI (Interstate transfer—person under forensic psychiatric treatment order or forensic community care order);
- 139CJ (Transfer to interstate mental health facility— emergency detention);
- 139CN (Transfer of person apprehended in another State to approved mental health facility).
- 48ZN (Powers in relation to forensic community care order);
- 48ZT (Revocation of leave granted by ACAT); and
- 48ZW (Revocation of leave granted by relevant official).
[2.32] New section 140AA inserts a new provision entitled ‘Report and record of use of restraint etc’. This provision requires an authorised person who exercises a power under sections 139F or 140 to take a person to a facility to report to the person in charge of the facility, if, in the course of exercising the power the authorised person—
- restrains, involuntary secludes or forcibly gives medication to the subject person; or
- becomes aware of anything else that may have an adverse effect on the subject person’s physical or mental health.
This new provision also compels the person in charge of the facility to:
- enter the report in the subject person’s record; and
- keep a register of any restraint, involuntary seclusion or forcible giving of medication included in the report, if the facility is a community care facility or mental health facility.
The new provision states that for the purposes of interpreting it:
- facility means a community care facility, mental health facility and an interstate facility.
- interstate facility means an interstate community care facility and an interstate mental health facility under chapter 15 (Interstate application of mental health laws).
Division 2.1.2 Relocations
[2.33] This amendment relocates sections 5 to 13, inclusive, of the amended Act, into Chapter 2 (Objects and important concepts).
[2.34] This amendment relocates sections 14 to 32, inclusive, of the amended Act, into Chapter 3 (Rights of people with mental disorder or mental illness).
[2.35] This amendment relocates sections 33 to 36, inclusive, and 36A to 36M of the amended Act, into Chapter 4 (Assessments).
[2.36] This amendment relocates sections 36N to 36ZQ, inclusive, of the amended Act, into Chapter 5 (Mental Health Orders).
[2.37] This amendment relocates sections 37, 38, and 38A of the amended Act, into Chapter 6 (Emergency Detention).
[2.38] This amendment relocates sections 40, 41, and 41AA of the amended Act, into Bill Chapter 6 (Emergency Detention).
[2.39] This amendment relocates section 42 of the amended Act, into Chapter 6 (Emergency Detention).
[2.40] This amendment relocates section 45 of the amended Act, into Chapter 6 (Emergency Detention).
[2.41] This amendment relocates sections 48S to 48ZZH, inclusive, of the amended Act, into Chapter 7 (Forensic mental health).
[2.42] This amendment relocates sections 48ZZI to 48ZZR, inclusive, of the amended Act, into Chapter 8 (Correctional patients).
[2.43] This amendment relocates sections 68 to 75, inclusive, of the amended Act, into Chapter 10 (Referrals by courts under Crimes Act and Children and Young People Act).
[2.44] This amendment relocates sections 76 to 87, inclusive, of the amended Act, into Chapter 11 (ACAT procedural matters).
[2.45] This amendment relocates sections 112 to 122J, inclusive, of the amended Act, into Chapter 12 (Administration).
[2.46] This amendment relocates sections 139 to 139C, inclusive, of the amended Act, into Chapter 14 (Mental health advisory council).
[2.47] This amendment relocates sections 139CR to 139CT, inclusive, of the amended Act, into Chapter 16 (Notification and review of decisions).
[2.48] This amendment relocates sections 139D to 147, inclusive, of the amended Act into Chapter 17 (Miscellaneous).
Part 2.2 Mental Health Act 2015
[2.49] Act—renumbering provides for the renumbering of provisions in the Mental Health Act 2015, when it is next republished under the Legislation Act.
Part 2.3 Other legislation
Division 2.3.1 Bail Act 1992
[2.50] Section 2, note 1 substitutes a note that uses ‘bail order’, as an example of a ‘signpost definition’, for a note that uses ‘mental dysfunction’ as a ‘signpost definition’ example. The term ‘mental dysfunction’ will no longer be used in this Act or other ACT statutes, including the enactment of Bill. Instead the term ‘mental disorder’, will be used.
Division 2.3.2 Children and Young People Act 2008
[2.51] Section 491, definition of ACAT mental health provision replaces ‘has a mental illness or mental dysfunction’, in this section, with ‘has a mental disorder or mental illness’.
[2.52] Section 545 replaces ‘is suffering from a mental illness or mental dysfunction’, in this section, with ‘has a mental disorder or mental illness’.
[2.53] Section 545, note replaces ‘is not suffering from a mental illness or mental dysfunction’, in this section, with ‘does not have a mental disorder or mental illness’.
[2.54] Section 549(e)(i) substitutes ‘is not suffering from a mental illness or mental dysfunction’, in this section, with ‘(i) does not have a mental disorder or mental illness; or’.
[2.55] Section 549(e)(ii) and note replaces ‘is suffering from a mental illness or mental dysfunction’, in this section, with ‘has a mental disorder or mental illness’.
[2.56] Section 562(1)(d) replaces ‘is suffering from a mental illness or mental dysfunction’, in this section, with ‘has a mental disorder or mental illness’.
[2.57] Dictionary, new definition of mental disorder inserts the new definition ‘mental disorder—see the Mental Health Act 2015, section 9’ into the Dictionary.
[2.58] Dictionary, definition of mental dysfunction removes this definition from the Dictionary.
[2.59] Further amendments replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in:
- the Note on section 161(2);
- section 186(8) definition of relevant director-general;
- section 530(1); and
- section 863(2).
Division 2.3.3 Coroners Act 1997
[2.60] Section 3C(1)(d) replaces ‘Mental Health (Treatment and Care) Act 1994’, in this section, with ‘Mental Health Act 2015’.
[2.61] Dictionary, definitions of chief psychiatrist and mental health officer replaces ‘Mental Health (Treatment and Care) Act 1994’, in these two definitions, with ‘Mental Health Act 2015’.
Division 2.3.4 Corrections Management Act 2007
[2.62] Section 54A etc replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in:
- section 54A (Transfer to mental health facility—transfer direction);
- Note 2 on section 68(3) (Health assessment); and
- section 77(8) (Health reports), definition of relevant director-general.
Division 2.3.5 Court Procedures Act 2004
[2.63] Section 15(2)(c) replaces ‘Mental Health (Treatment and Care) Act 1994’, in this section, with ‘Mental Health Act 2015’.
Division 2.3.6 Crimes Act 1900
[2.64] Section 300(1) etc replaces ’Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in all of the following sections of the Crimes Act 1900 (ACT):
- 300(1) (Definitions for pt 13);
- 309(4) (Assessment whether emergency detention required);
- 318(2) (Non-acquittal at special hearing—non-serious offence);
- 319(2) (Non-acquittal at special hearing—serious offence);
- 323(3) (Supreme Court orders following special verdict of not guilty because of mental impairment—non-serious offence);
- 324(2) (Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence);
- 328(3) (Magistrates Court orders following finding of not guilty because of mental impairment—non-serious offence); and
- 329(2) (Magistrates Court orders following finding of not guilty because of mental impairment—serious offence).
[2.65] Section 334(3)(d) replaces section 334(3)(d) with ‘(d) whether the ACAT could make an order under the Mental Health Act 2015, section 48ZA (Forensic psychiatric treatment order) or section 48ZH (Forensic community care order); and’.
[2.66] Section 335A(1) replaces ‘Mental Health (Treatment and Care) Act 1994, s 68’, in this section, with ‘Mental Health Act 2015, s 68’.
Division 2.3.7 Crimes (Child Sex Offenders) Regulation 2005
[2.67] Section 12(1)(d)(ii) replaces ‘Mental Health (Treatment and Care) Act 1994’, in this section, with ‘Mental Health Act 2015’.
Division 2.3.8 Crimes (Sentence Administration) Act 2005
[2.68] Sections 57A(1)(b) and 92(3)(b)(ii) replaces ‘Mental Health (Treatment and Care) Act 1994’, in this section, with ‘Mental Health Act 2015’.
[2.69] Section 321AA replaces ’a detainee’, in this section, with ’a detainee, a person released on parole, a person released on licence or’.
[2.70] Section 321AA(2) replaces ‘Mental Health (Treatment and Care) Act 1994’, in this section, with ‘Mental Health Act 2015’.
Division 2.3.9 Criminal Code 2002
[2.71] Section 712A (5), definition of childrens proceeding replaces ‘Mental Health (Treatment and Care) Act 1994’, in this definition, with ‘Mental Health Act 2015’.
Division 2.3.10 Guardianship and Management of Property Act 1991
[2.72] Section 7(3) etc replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’, in sections 7(3), 19 (2A), 32A, 32D, 32J(1), 32JA(1), and 70A.
[2.73] Dictionary, definitions of electroconvulsive therapy, mental illness and psychiatric surgery substitutes those three definitions with, respectively:
- electroconvulsive therapy—see the Mental Health Act 2015, section 49.
- mental illness—see the Mental Health Act 2015, section 10.
- psychiatric surgery—see the Mental Health Act 2015, section 49.
Division 2.3.11 Medicines, Poisons and Therapeutic Goods Regulation 2008
[2.74] Schedule 3, part 3.2, item 3, column 2 replaces ‘Mental Health (Treatment and Care) Act 1994’, with ‘Mental Health Act 2015’, in part 3.2, item 3, column 2 of the Schedule.
Division 2.3.12 Official Visitor Act 2012
[2.75] Section 7(e) etc replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in:
- section 7(e);
- section 10(1)(e); and
- section 50, definition of operational Act, paragraph (c).
[2.76] New part 11 supplies a new Part 11 entitled ‘Transitional—Mental Health Act 2015’ to continue the appointment of a person under section 10(1)(e) as an official visitor for the repealed Mental Health (Treatment and Care) Act 1994, if the appointment is in force immediately before the day that section 3 of the Mental Health Act 2015 commences.
This amendment clause saves the appointee, under section 10(1)(e), as an official visitor for the Mental Health Act 2015, on the same conditions that applied to the person’s appointment, immediately before the commencement day.
This amendment clause also sunsets the whole of new Part 11, 6 months after the day that section 3 of the Mental Health Act 2015 commences.
Under section 88 of the Legislation Act, this transitional provision is repealed on its expiry, but continues to have effect.
Division 2.3.13 Planning and Development Act 2007
[2.77] Section 85A, definition of mental health facility replaces ‘Mental Health (Treatment and Care) Act 1994’, in this definition, with ‘Mental Health Act 2015’.
Division 2.3.14 Powers of Attorney Act 2006
[2.78] Section 37 (2), definitions of electroconvulsive therapy and psychiatric surgery substitutes these two definitions with the following two:
- electroconvulsive therapy—see the Mental Health Act 2015, section 49; and
- psychiatric surgery—see the Mental Health Act 2015, section 49.
[2.79] Section 46A replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in this section.
[2.80] Dictionary, definition of mental health facility replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in this definition.
Division 2.3.15 Public Advocate Act 2005
[2.81] Section 10(j) replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in this section.
[2.82] Dictionary, definition of forensic patient, paragraph (a) replaces ’be suffering from a mental dysfunction or mental illness’ with in paragraph (a) of this definition with ’have a mental disorder or mental illness’.
[2.83] Dictionary, definition of forensic patient, paragraph (d) substitutes paragraph (d) in this definition with ’(d) found guilty of a criminal offence and is, or while serving a sentence of imprisonment has become, a person with a mental disorder or mental illness’.
[2.84] Dictionary, definitions of mental disorder and mental illness replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in these two Dictionary definitions.
Division 2.3.16 Victims of Crime Act 1994
[2.85] Section 11 (ba) replaces ‘Mental Health (Treatment and Care) Act 1994’ with ‘Mental Health Act 2015’ in section 11(ba).
Dictionary is provided by Bill clause 3 and defines the following:
- ACAT mental health provision.
- advance agreement.
- advance consent direction.
- affected person.
- affected person register.
- approved community care facility.
- approved mental health facility.
- assessment.
- assessment order.
- authorised ambulance paramedic.
- authorised officer.
- care and protection order.
- care coordinator.
- carer.
- close relative or close friend.
- community-based sentence.
- community care facility.
- community care order.
- community care service.
- coordinating director-general.
- correctional patient.
- corrections director-general.
- corrections order.
- corresponding law.
- Crimes Act.
- CYP director-general.
- decision-making capacity.
- detainee.
- director-general, for Part 7.2 (Affected people).
- electroconvulsive therapy.
- electroconvulsive therapy order.
- eligible person, for Part 13.2 (Licences).
- emergency assessment order.
- emergency electroconvulsive therapy order.
- entitled person.
- forensic community care order.
- forensic mental health order.
- forensic patient, for Part 7.2 (Affected people).
- forensic psychiatric treatment order
- general president, of the ACAT.
- health attorney.
- information sharing entity, for Part 12.5 (Sharing information—government agencies).
- information sharing protocol, for Part 12.5.
- information statement.
- inspector, for Chapter 13 (Private psychiatric facilities).
- interim care and protection order.
- interim therapeutic protection order.
- interstate authorised person, for Chapter 15 (Interstate application of mental health laws).
- interstate community care facility, for Chapter 15.
- interstate community care service, for Chapter 15.
- interstate involuntary treatment order, for Chapter 15.
- interstate mental health facility, for Chapter 15.
- interstate mental health service, for Chapter 15.
- interstate patient, for Chapter 15.
- licence, for Chapter 13—see section 123 (Definitions—ch 13).
- licensed premises, for Chapter 13.
- licensee, for Chapter 13.
- mental disorder.
- mental health facility.
- mental health officer.
- mental health order.
- mental health professional.
- mental health service, for Chapter 15.
- mental illness.
- mental impairment.
- nominated person.
- non-presidential member, of the ACAT.
- official visitor.
- presidential member, of the ACAT.
- principal official visitor.
- private psychiatric facility, for Chapter 13.
- psychiatric surgery.
- psychiatric treatment order.
- psychiatrist.
- publish, for Part 7.2 (Affected people).
- registered affected person, in relation to a forensic patient.
- referring officer.
- psychiatric facility.
- relative.
- relevant information, for Part 12.5 (Sharing information—
government agencies).
- relevant official for a mental health order, for Chapter 5 (Mental health orders) and for a forensic mental health order, for Part 7.1 (Forensic mental health orders).
- relevant person for a mental health order application, for Chapter 5 and for a forensic mental health order application, for Part 7.1.
- representative, of a treating team, for Part 3.3 (Advance agreements and advance consent directions).
- responsible person, for Part 3.1 (Rights in relation to information and communication).
- restriction order.
- reviewable decision, for Chapter 16 (Notification and review of decisions).
- subject person, for Chapter 11 (ACAT procedural matters).
- transfer direction—see section 48ZZJ(3) (Transfer to mental health facility).
- treating team, for a person with a mental disorder or mental illness, for Part 3.3.
- treatment, care or support, for a mental disorder or mental illness.
- victims of crime commissioner.
- visitable place.
- young detainee.
- young offender.
- young person.
[1] Human Rights Act 2004
(ACT) <http://www.legislation.act.gov.au/a/2004-5/default.asp>,
accessed 25 Jan. 2015.
[2] Those
sections may be read on the ACT Legislation Register: Mental Health Treatment
and Care Amendment Act 2014 <http://www.legislation.act.gov.au/a/2014-51/default.asp>,
accessed 13 March 2015.
[3] Bill Schedule 2 is provided by Bill clause 149.
[4] Sterling, E. et al (2010) ‘Integrating Wellness, Recovery, and Self-management for Mental Health Consumers’, Community Mental Health Journal, April 2010, vol. 46, issue 2, pp. 130-138.
[5] United Nations (UN) International Covenant on Economic, Social and Cultural Rights (CESCR), ratified by Australia on 10 Dec. 1975; UN Convention on the Elimination of all Forms of Racial Discrimination (CERD), ratified by Australia on 30 Sept. 1975; UN International Covenant on Civil and Political Rights (CCPR), ratified by Australia on 13 Aug. 1980; UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), ratified by Australia on 28 July 1983; UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), ratified by Australia on 8 Aug. 1989; UN Convention on the Rights of the Child (CRC), ratified by Australia on 17 Dec. 1990; and UN Convention on the Rights of Persons with Disablities (CRPD), ratified by Australia on 17 July 2008 and Australia acceded to the Optional Protocol to that Convention on 21 August 2009. All treaties and dates are from Australia’s Treaties Database <http://www.info.dfat.gov.au/Info/Treaties/treaties.nsf>, accessed 1 Jan. 2015.
[6] In Minister for Immigration and Ethnic Affairs v Ah Hin Teoh, the High Court of Australia held that where:
...a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument...such ratification requires the Executive to ‘act in conformity’ with the ratified international instrument (1995) 183 CLR 273 at p. 287).
[7] Authoritative case law states
that Australia has a single common law, not a separate common law for each state
and territory. This conclusion is derived from Australia having received the
common law of the United Kingdom (UK), upon the Commonwealth of Australia
Constitution Act 1900 (UK) establishing the federation of Australia on 1
January 1901 (<http://www.foundingdocs.gov.au/item-sdid-82.html>,
accessed 12 March 2015); clause 73 of the Australian statute, the Commonwealth
of Australia Constitution Act establishing the High Court of Australia as the
appellate court for all Australia’s state and territory supreme courts
(the Constitution of Australia <http://www.comlaw.gov.au/Details/C2013Q00005>,
accessed 12 March 2015); and authoritative commentaries and case law, which
indicate that while Australia’s common law of may be differentiated by
state and territory courts, it is ultimately subject to the High Court’s
decisions (Lipohar v The Queen (1999) 200 CLR 485, 505-510
[43]–[57]; Commonwealth v Mewitt (1997) 191 CLR 471, 522; Kable
v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 112; and John
Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. Also, in Lange v
Australian Broadcasting Corporation (1997) 189 CLR 520, the Court rules it
is doctrinal in Australia’s common law that there is a single common law
throughout Australia, and not a separate common law for each State, and to
support this, cites, at 563, fn 259, the comments of Sir Owen Dixon in
‘The Common Law as an Ultimate Constitutional Foundation’, read on
16 July 1957 at the tenth convention of the Law Council of Australia, quoted in
Judge Woinarski (ed) (1965) Jesting Pilate and Other Papers and
Addresses, p. 205. At the time Sir Dixon so commented, he was Chief Justice
of the High Court of
Australia).
[8] As the Act states
at its Schedule 2, and Note to Part 3A, all of its rights are sourced from the
International Covenant on Civil and Political Rights (CCPR), bar its right to
education which is sourced from the International Covenant on Economic, Social
and Cultural Rights (CESCR), as the Act states at its Schedule 1, and Note to
Part 3. Further, its section 31(1) states: ‘International law, and the
judgments of foreign and international courts and tribunals, relevant to a human
right may be considered in interpreting the human right’. The Dictionary,
provided by section 3 of the Act, defines ‘international law’
as:
(a) the International Covenant on Civil and Political Rights and other
human rights treaties to which Australia is a party; and
(b) general
comments and views of the United Nations human rights treaty monitoring bodies;
and
(c) declarations and standards adopted by the United
Nations/General Assembly that are relevant to human rights.
It should also be noted that Human Rights Act section 40B prohibits an ACT public authority – any ACT public body, bar the legislature or a court – acting incompatibly with a right or rights in the Act, unless it is complying with legislation that cannot be interpreted consistently with that right or rights.
[9] Legislation Act 2001 (ACT), ACT Legislation Register <http://www.legislation.act.gov.au/a/2001-14/default.asp>, accessed 25 Jan. 2015.
[10] Nationwide News Pty Ltd v Wills [1992] 177 CLR 1, 43 per Brennan J; Re Bolton; ex parte Beane (1987) HCA 12, 162 CLR 514, 523 per Brennan J; and Coco v The Queen (1994) 179 CLR 427, p. 437 per Mason CJ, Brennan, Gaudron and McHugh JJ).
[11] The Objects and Principles are relocated into the Bill, by Bill Schedule 2, Amendment [2.33], provided by clause 149 of the Bill.
[12] Carr v The State of Western Australia HCA 47 (23 Oct. 2007), as per Chief Justice Glesson, para. 5 and 7.
[13] Full citation for Human Rights Act, at footnote 2, and for international instruments at footnote 6. The Amendment Bill contained far more clauses than this Bill. Consequently, there was not the scope to comprehensively canvas in its Explanatory Statement the articles of international instruments incorporated in its Objects and Principles. The above explanation equally applies to the Amendment Bill and Amendment Act.
[14] Full citation for Amendment Act, at footnote 3.
[15] ibid.
[16] Full citation for Human Rights Act, at footnote 2.
[17] Full citation for international instruments at footnote 6.
[18] UN Special Rapporteur on the right to the highest attainable standard of health, Hunt, P. (2006) ‘The human right to the highest attainable standard of health: new opportunities and challenges’, Transactions of the Royal Society of Tropical Medicine and Hygiene (2006) 100, pp.603—607, 604. The right is not only in the abovementioned treaties, it is explicitly proclaimed in many regional treaties, such as Article 16 of African Charter on Human and Peoples’ Rights, Article 10 of Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, known as ‘Protocol of San Salvador’, and Article 11 of European Social Charter, and in over sixty national constitutions (UN Commission on Human Rights (2003) The right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, P. Hunt, submitted in accordance with Commission resolution 2002/31, E/CN.4/2003/58, 13 February 2003, p.7). Under these constitutions, there has been a proliferation of case law affirming the right. In Mariela Viceconte v Argentinian Ministry of Health and Social Welfare, Argentina’s Federal Administrative Court of Appeals found a violation of CESCR Article 12 and ordered production of a vaccine (Poder Judicial de la Nación, Causa no. 31.777/96, 2 June 1998). In Campodónico de Beviacqua, Ana Carina c/ Ministerio de Salud y Acción Social – Secretaría de Programas de Salud y Banco de Drogas Neoplásicas, Argentina’s Supreme Court held that CESCR Article 12 and Argentina’s Constitution required the Government to continue providing a certain drug to a child (Supreme Court of Argentina, 24 October 2000, No. 823 XXXV). In Mendoza and others v Ministry of Public Health and the Director of the HIV-AIDS National Programme, Ecuador’s Constitutional Court ruled the right to health must be safeguarded by the State and that it is a part of the right to life (Tribunal Constitucional, 3ra. Sala, Ecuador, Resolucion No. 0749-2003-RA, 28 Jan. 2004). There is no right to health in either of Australia’s two human rights bills: the ACT Human Rights Act (full citation, at footnote 2) or Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic.) <http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/ltobjst8.nsf/DDE300B846EED9C7CA257616000A3571/E42FBB83DE048B6FCA257C2F0015C5BB/$FILE/06-43aa011%20authorised.pdf>, accessed 13 Jan. 2014). However, this right was commonly requested, during the federal government human rights consultation in 2009 (Commonwealth of Australia (2009) National Human Rights Consultation <http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/HumanRightsconsultationreport.aspx>, accessed 17 Jan. 2014). Further, in late 2009, the said Rapporteur toured Australia, and in 2010, recommended that the federal parliament enact an enforceable, justiciable right to health (Grover, A. (2010) Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum, Mission to Australia, presented to the UN General Assembly on 3 June 2010, A/HRC/14/20/Add.4).
[19] The Amendment Bill contained far more clauses than this Bill. Consequently, there was not the scope to comprehensively canvas the right to health in its Explanatory Statement. This Explanatory Statement’s explanation of it equally applies to how this right bears on the Amendment Bill and Amendment Act.
[20] Full citation of all international instruments, at footnote 6.
[21] Full citation for Human Rights Act, at footnote 2.
[22] Riviere v France, No. 33834/03 Eur. Ct. H.R. (2006).
[23] Hurtado v Switzerland, No. 17549/90 Eur. Ct. H.R. (1994).
[24] Holomiov v Moldova, No. 30649/05 Eur. Ct. H.R. (2006).
[25] R.R. v Poland, No. 27617/04 Eur. Ct. H.R. (2011).
[26] A. Yamin and O. Parra-vera (2009) ‘How Do Courts Set Health Policy? The Case of the Columbian Constitutional Court’, 6 PLoS Med 147, p. 147.
[27] Consumer Education and Research Centre v Union of India (1995) 1 SCR 626 (SC, India); Paschim Banga Khet Majoor Samity v State of West Bengal (1996) 4 SCC 37 (SC, India).
[28] Maharjan v His Majesty of Government NKP, 2053, vol. 8, 627 (SC, Nepal).
[29] Mohiuddin Farooque v Bangladesh (1996) 48 DLR 438 (HC, Bangladesh).
[30] General Secretary West Pakistan Salt Miners Labour Union, Khewra, Jhelum v Director Industries and Mineral Development, Punjab Lahore [1994] SCMR 2061 (SC, Pakistan).
[31] Piovesan, F. (2008) ‘Impact and Challenges of Social Rights in the Courts’, in M. Langford (ed.) Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, CUP, pp.136-7.
[32] Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate) [2008] UKHL 74 on appeal from:[2007] EWCA Civ 1375 <http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd081210/savage-1.htm>, accessed 2 April 2015.
[33] ibid., per Lord Rodger, at para. 72.
[34] European Convention on Human Rights <http://www.echr.coe.int/Documents/Convention_ENG.pdf>, accessed 2 April 2015.
[35] Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate) [2008] UKHL 74, per Lord Rodger, at para. 72.
[36] ibid., per Baroness Hale, at para. 98. See also Keenan v United Kingdom (2001) 33 EHRR 913, para. 110.
[37] Rabone v Anor v Pennine Care NHS Foundation Trust [2012] UKSC 2 (8 February 2012). Savage v South Essex Partnership NHS Foundation Trust (2008) regarded an involuntary psychiatric patient.
[40] For instance, Rosen, A., Rosen, T. and McGorry, P. D. (2012) The human rights of people with severe and persistent mental illness: can conflicts between dominant and non-dominant paradigms be reconciled?', in M. Dudley, F. Gale & D. Silove (eds), Mental Health and Human Rights: Vision, praxis, and Courage, Oxford University Press, United States of America, pp.297-320.
[42] For instance, Nelson, G., Kloose, B. and Ornelas, J. (eds) (2014) Community Psychology and Community Mental Health: Towards Transformative Change (Advances in Community Psychology), Oxford University Press, Oxford, United Kingdom.
[43] For instance, Roy, A.K., Lopes, V. and Klein, R.G. (2014) ‘Disruptive Mood Dysregulation Disorder: A New Diagnostic Approach to Chronic Irritability in Youth’, American Journal of Psychiatry, vol. 171, issue 9, pp.918-924.
[46] As noted by the then Minister for Health, Katy Gallagher MLA, in the ACT Legislative Assembly debate in which the Mental Health (Treatment and Care) Amendment Act 2014 (ACT) was passed, on 30 Oct. 2014, Debates, Weekly Hansard, Legislative Assembly for the ACT, Eight Assembly, 30 October 2014, p.3848 <http://www.hansard.act.gov.au/hansard/2014/pdfs/20141030.pdf>, accessed 25 Jan. 2015.
[47] Explanatory Statement for Amendment Bill: ACT Legislation Register <http://www.legislation.act.gov.au/a/2014-51/default.asp>, accessed 25 Jan. 2015.
[48] ibid.
[49] For more on the Review and Review Advisory Committee, see 5. Who and what informed these changes?, in the Explanatory Statement on the Mental Health (Treatment and Care) Amendment Bill 2014: ACT Legislation Register <http://www.legislation.act.gov.au/a/2014-51/default.asp>, accessed 25 Jan. 2015.
[50] Commencement on 12 November 2015 is as per section 2(2) of the Mental Health (Treatment and Care) Amendment Act 2014: ACT Legislation Register <http://www.legislation.act.gov.au/a/2014-51/default.asp>, accessed 25 Jan. 2015.
[51] These relocations are provided for by amendments in Bill Schedule 2. For which amendments, please see the relocation explanations in 5. What are the Bill clauses about?. Schedule 2 is provided by Bill clause 149.
[52] The Bill provides for preservation of the instruments that are interstate agreements under the current Act via Bill clause 419 (Interstate agreements notified before commencement day), in Chapter 40 (Transitional), Division 40.3.5 (Other matters), Part 40.5 (Transitional—interstate application of mental health laws).
[53] Full citation of Human
Rights Act, at footnote 2.
[54]
The rights that are absolute are:
a. freedom from torture and other cruel,
inhuman or degrading treatment or punishment, codified in CCPR Article 7 and
Human Rights Act section 10;
b. freedom from slavery and servitude, codified
in CCPR Articles 8(1), (2), (3)(a) and (c) and Human Rights Act section
26;
c. freedom from imprisonment for inability to fulfill a contractual
obligation, codified in CCPR Article 11 and Human Rights Act section
18(8);
d. prohibition against the retrospective criminal laws, codified in
CCPR Article 15 and Human Rights Act section 15(1); and
e. right to
recognition before the law, codified in CCPR Article 16 and Human Rights Act
section 8(1).
[55] These non-derogable rights are the rights to:
a. life, codified in CCPR Article 6 and Human Rights Act section 9(1);
b. freedom from torture or cruel, inhuman and degrading treatment or punishment and medical or scientific experimentation without consent, codified in CCPR Article 7 and Human Rights Act section 10;
c. freedom from slavery and servitude, codified in CCPR Articles 8(1), (2), (3)(a) and (c) and Human Rights Act section 26;
d. freedom from imprisonment for inability to fulfill a contractual obligation, codified in CCPR Articles 11 and Human Rights Act section 18(8);
e. prohibition against retrospective criminal laws, codified in CCPR Article 15(1) and Human Rights Act section 25;
f. right to recognition before the law, codified in CCPR Articles 16 and Human Rights Act section 8(1); and
g. freedom of thought, conscience and religion, codified in CCPR Article 18(1) and (3) and Human Rights Act section 14(1).
[56] Naumenko v. Ukraine [2004] Application no. 42023/98, 10th February; Herczegfalvy v. Austria [1992] 15 EHRR 437; R(B) v. S & Others [2006] EWCA Civ 28; and R (Wilkinson) v. Broadmoor Special Hospital Authority [2002] EWCA CIV 1545.
[57] A (name withheld) v. New Zealand, Communication No. 754/1997, U.N. Doc. CCPR/C/66/D/754/1997 (3 August 1999); and R (on the application of A) v. North West Lancashire Health Authority [2000] 1 WLR 977; A v. United Kingdom (1981) 4 EHRR 188, European Court of Human Rights.
[58] Nevmerzhitsky v. Ukraine [2005] Application no. 54825/00, 5th April; and Winterwerp v Netherlands [1979] 2 EHHR, 387.
[59] See A (name withheld) v. New Zealand, Communication No. 754/1997, U.N. Doc. CCPR/C/66/D/754/1997 (3 August 1999); Lines (Pauline) v UK [1997] EHRLR, 297; Roux (Joseph) v. United Kingdom [1996] 22 EHRR, CD 196; Johnson (Stanley) v. United Kingdom [1997] EHRLR, 105; and E v Norway [1990] 17 EHRR 30. Few cases in relation to the rights of people with mental illness/es and/or disorders have reached courts of law in Australia, other than in criminal cases that involve fitness to stand trial arguments and insanity pleas. An important exception to this rule was In the Matter of XY (1992) 2 MHRBD 501, decided by the Victorian Court of Appeal on 6 March 1992. The Court held that a person who had been involuntarily detained in a technically incorrect way, under mental health legislation, still had a right of review of their detention by the Victorian Mental Health Review Board. In deciding that the Board had this jurisdiction, the Court had no overt recourse to international or local human rights law. Nonetheless, In the Matter of XY is a precedent from an Australian appellate court that endows a right on persons to have the propriety of their detention, under mental health legislation, reviewed by an administrative review body. Further, the case stipulates that this right of review remains, even when the original decision to detain was made incorrectly under certain statutory provisions, and the statutory entitlement to review states that a decision made under those provisions can be reviewed by the administrative review body.
[60] Hurtado v. Switzerland [1994] Application No. 1754/90, 28 January; Riviere v. France (2006) Application no. 33834/03, 11th July; Holomiov v. Moldova [2006] Application no. 30649/05, 7th November; and Tanko v. Finland (1994) Application no. 23634/94, unreported. However, a case of clinical negligence does not automatically bear out violation of the protection: R (Howard) v. Health Secretary [2002] 3 WLR 738, at 759.
[61] This on pain of violating the protection from torture and cruel, inhuman or degrading treatment, provided by several international instruments and section 10 of the Human Rights Act: Matencio v. France [2004] Application no. 58749/00, 15th January; Sentges v. Netherlands (2003) Application no. 27677/02, 8th July; R (on the application of A) v. North West Lancashire Health Authority, ex parte A [2000] 1 WLR 977.
[62] Ireland v. The United Kingdom [1978] 2 EHRR 25; Herczegfalvy v. Austria [1992] 15 EHRR 437; Kudla v. Poland 30210/96 [2000] ECHR 512 (26 October 2000); and Pretty v. United Kingdom [2002] 35 EHRR 1.
[63] Keenan v. United Kingdom 27229/95 (2001) ECHR 242.
[64] Hurtado v. Switzerland [1994] Application No. 1754/90, 28 January.
[65] D v United Kingdom 1997-III (ECtHR), where the European Court of Human Rights found a violation of the right to freedom from inhuman treatment was found in respect of deporting a man to his country of origin where this would have resulted in the withdrawal of treatment and a painful death and Henao v The Netherlands App No 13669/03 (ECtHR 24 June 2003), where the same Court held that a violation of the same right would not occur, if the person’s illness had not reached an advanced stage. Also see that Bensaid v United Kingdom (2001) 33 EHRR 205 found no violation of rights in the European Convention on Human Rights in deporting a person with mental illness to another country. However, the judgement states at pp. 219 - 220, para. 47, that the preservation of mental stability can be regarded as a right protected by article 8, the right to respect for one's ‘private and family life, his home and his correspondence’, which right aligns closely with section 12(a) of the Human Rights Act 2004 (ACT).
[66] UN General Assembly, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 3 February 1992, A/RES/47/135 <http://www.ohchr.org/Documents/Publications/GuideMinoritiesDeclarationen.pdf>, accessed 14 Jan. 2015. This Declaration was adopted by General Assembly Resolution 47/135, 18 December 1992.
[67] See footnote 9.
[68] For example, Dunitz, Martin and McGlashan, T. H. (1999) ‘Duration of untreated psychosis in first-episode schizophrenia: marker or determinant of course?’, Biological Psychiatry, Vol. 46, pp.899-907; McGorry, P.D., Purcell, R., Hickie, I.B., Jorm, A.F (2007) ‘Investing in youth mental health is a best buy’, Medical Journal of Australia, Vol. 187, pp.5-7; Norman, R.M. and Malla, A.K. (2001) ‘Duration of untreated psychosis: A critical examination of the concept and its importance’, Psychological Medicine, vol. 31, pp.381-400.
[69] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12), 22nd sess, UN Doc E/C.12/2000/4, 11 August 2000.
[70] Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate) [2008] UKHL 74, para. 11.
[71] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12), 22nd sess, UN Doc E/C.12/2000/4, 11 August 2000, para. 17.
[72] Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate) [2008] UKHL 74, para. 12.
[73] ibid., per Baroness Hale at para. 98; see also Keenan v United Kingdom (2001) 33 EHRR 913, para. 110.
[74] See footnote 9.
[75] For example, UN General Assembly, Torture and other cruel, inhuman or degrading treatment or punishment : Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 28 July 2008, A/63/175 <http://unispal.un.org/UNISPAL.NSF/0/707AC2611E22CE6B852574BB004F4C95>, accessed 14 Jan. 2015, in which, on page 15, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment objects not to ECT per se, but ECT deployed as torture, punishment, or in unmodified form, and, on page 14, the Special Rapporteur objects not to psychosurgery, per se, but its performance on a person without their ‘free and informed consent’.
[76] See, for example, in Australian Capital Territory v JT [2009] ACTSC 105, the then Chief Justice of the ACT Supreme Court confirmed that nutrition could not be withheld from a patient who strongly objected to being fed but lacked the capacity to make this decision, as a consequence of their mental illness. His Honour held, at para. 63, that the right to humane treatment did not override the basic duty to preserve life where a patient is not capable of making his own decisions. See, also, the wide coverage of fundamental human rights in Australian common law by the ‘principle of legality’, as discussed in D.C. Pearce and R.D. Geddes (2006), Statutory Interpretation in Australia, LexisNexis, Butterworths, 6th ed, 165 [5.2]; Robin Creyke, ‘The Performance of Administrative Law in Protecting Rights’ cited in T. Campbell, J. Goldsworthy and A. Stone (eds) (2006), Protecting Rights Without a Bill of Rights, Ashgate Publishing, pp.101 and 113; Chief Justice J.J.Spigelman (2008) Statutory Interpretation and Human Rights, University of Queensland Press, p.23.
[77] Royal Australian and New Zealand College of Psychiatrists (2013) Position Statement 74, Electroconvulsive Therapy (ECT) August 2013, p.1 <https://www.ranzcp.org/Files/ranzcp-attachments/Resources/College_Statements/Position_Statements/74-Electroconvulsive-Therapy-GC2012-3.aspx>, accessed 14 Jan. 2015.
[78] See directly under the
heading ‘ECT Practice’ in Leiknes, K.A., Jarosh-von Schweder, L. and
Hoie, B. (2012) ‘Contemporary use and practice of electroconvulsive
therapy worldwide’, Brain Behaviour, May, vol. 2, no. 3,
pp.283–344 <http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3381633/>,
accessed
14 Jan. 2014.
[79] E/CN.4/1986/15, para. 119 and Amnesty International, Arming the Torturers, Electro-Shock Torture and the Spread of Stun Technology, 1997, AI Index ACT 40/001/1997. See also CAT/C/75, para. 143 and Human Rights Committee, views on communication No. 11/1977, Grille Motta v. Uruguay, adopted on 29 July 1980 (CCPR/C/10/D/11/1977) and communication No. 366/1989, Kanana v. Zaire, adopted on 2 November 1993 (CCPR/C/49/D/366/1989).
[80] For instance, UN General Assembly, Nowack, M. (2008) Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, cites CPT/Inf (2006) 30, paras. 58-68 and CPT/Inf (99) 2, paras. 178-182, reports the European Committee for the Prevention of Torture has documented the administration of ‘electro-convulsion therapy’, in its unmodified form, in psychiatric establishments in Turkey, showing that ‘Out of the total of 15,877 ‘electro-convulsion therapy’ sessions administered at Bakirkoy, only 512 (3.2 per cent) were modified’.
[81] ibid, p.15.
[82] See, for instance, James, B. et al (2009) ‘Unmodified electroconvulsive therapy: changes in knowledge and attitudes of Nigerian medical students’, African Health Sciences, December 2009, vol. 9, no. 4, pp.279–283. <http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3074393/> and Rajkumar, R.P. (2014) ‘Unmodified electroconvulsive therapy: a false dilemma’, Indian Journal of Medical Ethics, April 2014, vol. 11, no. 2, pp.89-93 <http://ijme.in/index.php/ijme/article/view/1933/4199>, both accessed 14 January 2014.
[83] For evidence of unmodified ECT uses, see, for instance, Leiknes, K.A., Jarosh-von Schweder, L. and Hoie, B. (2012) (full citation at footnote 189); James, B. et al (2010) ‘Unmodified Electroconvulsive Therapy: The Perspective of Patients From a Developing Country’, Journal of ECT, September 2010, vol, 26, issue 3, pp 218-222 >, accessed 14 Jan. 2015. For uses of EC as torture, see E/CN.4/1986/15, para. 119 and CAT/C/75, para. 143 and Human Rights Committee, Views on Communication No. 11/1977, Grille Motta v. Uruguay, adopted on 29 July 1980 (CCPR/C/10/D/11/1977) and Communication No. 366/1989, Kanana v. Zaire, adopted on 2 November 1993 (CCPR/C/49/D/366/1989).
[88] Frederikse, M., Petrides, G., and Kellner, C. (2006) ‘Continuation and maintenance electroconvulsive therapy for the treatment of depressive illness: a response to the National Institute for Clinical Excellence report’, The Journal of ECT, vol. 22, no. 1, pp.13–17; Royal Australian and New Zealand College of Psychiatrists (2013) Position Statement 74 Electroconvulsive Therapy (ECT), August; Greenhalgh, J. et al (2005) ‘Clinical and cost-effectiveness of electroconvulsive therapy for depressive illness, schizophrenia, catatonia and mania: systematic reviews and economic modelling studies’, Health Technology Assessment, vol. 9, no. 9, pp.1-156.
[89] ibid.
[90] Royal Australian and New Zealand College of Psychiatrists (2013) Position Statement 74 Electroconvulsive Therapy (ECT), August.
[91] Rose, D. et al (2003) ‘Patients' perspectives on electroconvulsive therapy: systematic review’, British Medical Journal, 326, pp. 1363-5; Behrman, A. (2003). Electroboy: A Memoir of Mania. Random House, New York, USA Hartmann, C.E. (2002) ‘Personal Accounts: Life As Death: Hope Regained with ECT’, Psychiatric Services, vol. 53, no. 4, pp. 413–4; Callard, B. (2010) Unbroken, Hodder & Stoughton, London, United Kingdom; Dukakis, K. and Tye, L. (2007), Shock: The Healing Power of Electroconvulsive Therapy, Avery Trade, New York, USA; Fisher, C. (2008) Wishful Drinking, Simon & Schuster, New York, New York, United States of America; Fisher, C. (2011) Shockaholic, Simon & Schuster, New York, USA; Manning, M. (1996) Undercurrents: A Therapist's Reckoning with Her Own Depression, HarperCollins, New York, USA.
[92] Rajagapol, R. et al (2012) ‘Knowledge, experience & attitudes concerning electroconvulsive therapy among patients and their relatives’, Indian Journal of Medical Research, vol. 135, no. 2, pp.201–210; Cristancho, M.A. et al. (2008) ‘Uncommon but serious complications associated with electroconvulsive therapy: recognition and management for the clinician’, Current psychiatry reports, vol. 10, no. 6, pp.474–80.
[93] White, R. (2011) ‘The Banning of Psychosurgery in NSW’, Australasian Psychiatry, April 2011, vol. 19, no. 2, p.179 <http://m.apy.sagepub.com/content/19/2/179.2.extract>, accessed 1 March 2015 and its references to White, R. and Williams, S. (2009) ‘Amygdaloid neurosurgery for aggressive behaviour, Sydney, 1967–1977 : chronological narrative’, Australasian Psychiatry, 2009, vol. 17, no. 5, pp. 405-409 and White, R. and Williams, S. (2009) ‘Amygdaloid neurosurgery for aggressive behaviour, Sydney, 1967–1977: societal, scientific, ethical and other factors’, Australasian Psychiatry, vol. 17, no. 5, pp.410-416.
[94] See, for instance, Chapter 8, section 8.4, of National Collaborating Centre for Mental Health (United Kingdom) (2006) Obsessive-Compulsive Disorder: Core Interventions in the Treatment of Obsessive-Compulsive Disorder and Body Dysmorphic Disorder, NICE Clinical Guidelines, No. 31, British Psychological Society, Leicester, United Kingdom < http://www.ncbi.nlm.nih.gov/books/NBK56463/>; Matthews, K. and Eljamel, M.S. (2003) ‘Status of neurosurgery for mental disorder in Scotland: Selective literature review and overview of current clinical activity’, The British Journal of Psychiatry 182: pp. 404-411 <http://m.bjp.rcpsych.org/content/182/5/404.full>; Nuttin, B. et al (2013) ‘Consensus on guidelines for stereotactic neurosurgery for psychiatric disorders’, Journal of Neurology, Neurosurgery and Psychiatry <http://m.jnnp.bmj.com/content/early/2014/01/20/jnnp-2013-306580.full>. All accessed 1 March 2015.
[95] See the Royal Australian and New Zealand College of Psychiatrists (2009) Position Statement 29 Neurosurgery for mental disorders, October <https://www.ranzcp.org/Files/Resources/College_Statements/Position_Statements/ps29-pdf.aspx>, accessed 2 March 2015.
[96] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12), 22nd sess, UN Doc E/C.12/2000/4 (11 August 2000), para. 12.
[97] ibid.
[98] For instance, in its latest General Comment on Article 14, the UN Human Rights Committee states in its third paragraph under ‘I. General comments’ that: ‘The first sentence of paragraph 1 [of Article 14] sets out a general guarantee of equality before courts and tribunals that applies regardless of the nature of proceedings before such bodies’ (United Nations Human Rights Committee, General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32 <http://www1.umn.edu/humanrts/gencomm/hrcom32.html>, accessed 19 March 2015).
[99] These clauses include, but are not limited to: 46 (Order for release); 55G (Making of electroconvulsive therapy order); 55G (Making of electroconvulsive therapy order); 55H (Content of electroconvulsive therapy order); 55JA (What ACAT must take into account - emergency electroconvulsive therapy order); 55K (Making of emergency electroconvulsive therapy order); 55L (Content of emergency electroconvulsive therapy order); new section 72 (6) (Review of detention under court order), provided by Amendment [2.25] in Bill Schedule 2 (Legislation amended) Part 2.1 (Mental Health (Treatment and Care) Act 1994); 139CH (Interstate transfer – person under psychiatric treatment order or community care order); and 139CI (Interstate transfer – person under forensic psychiatric treatment order or forensic community care order).
[100] These clauses include, but are not limited to: clause 55D (Consultation by ACAT - electroconvulsive therapy order); clause 55E (ACAT must hold hearing - electroconvulsive therapy order); clause 55F (What ACAT must take into account - electroconvulsive therapy order); and those clauses in Chapter 11 (ACAT procedural matters).
[101] Section 98 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), ACT Legislation Register <http://www.legislation.act.gov.au/a/2008-35/default.asp>, accessed 19 March 2015.
[102] Full citation for Human Rights Act, at footnote 2.
[103] unreported, Queen’s Bench, 15 November 2000.
[104] Garwood-Gowers, A., Tingle, J., and Lewis, T. (2001) Healthcare Law: The Impact of the Human Rights Act 1998, London, United Kingdom, p.182.
[105] Mr Chris Sidoti, Australian Human Rights Commissioner 1995-2000, ‘Mental Health For All: What’s the Vision?’, Speech to National Conference on Mental Health Services, Policy and Law Reform into the Twenty First Century, 13-14 February 1997, Newcastle, Australia <https://www.humanrights.gov.au/news/speeches/mental-health-all-whats-vision>, accessed 10 Jan. 2014.
[106] Full citation of CCPR, at footnote 45.
[107] UN International Covenant on Economic, Social and Cultural Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with Article 27. <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx>, accessed 13 March 2015. Ratified by Australia on 10 December 1975, Australian Treaties Database webpage, <http://www.info.dfat.gov.au>, accessed 13 March 2015.
[108] UN General Assembly Resolution 46/119, 17 December 1991.
[109] ibid.
[110] These ACAT Act provisions include, but are not limited to, sections 7, which requires ACAT to ‘ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice and observe natural justice and procedural fairness’; 30, which allows a person appearing before ACAT to be represented by a lawyer or another appropriate advocate; 41A, which gives a witness before ACAT the same protection as a witness in an ACT Supreme Court proceeding, and gives a lawyer or anyone else representing a party before ACAT, the same protection and immunity as a party, or a party’s barrister, appearing before the Supreme Court; 22B and 60, which dictate that the reasons for an ACAT decision must be given to the parties to that decision, if they so request; 90, which states that before allocating an ACAT member to an application, the general president must consider its nature and complexity, whether to allocate a member with special qualifications or experience, and any other consideration stated in a law that authorises ACAT proceedings; 86(1), which enables a party to an application to appeal to the Supreme Court on a question of fact or law; and 83, which holds that if the parties to an application or an appeal jointly apply to have the matter removed to the Supreme Court, ACAT must order that, and if one party applies to have a matter so removed, ACAT may so order, if it considers that appropriate.
[111] These provisions include sections:
a. 36S, which compels ACAT to hold a hearing before making anyone subject to a mental health order. As stated in the Bill’s Dictionary provided by Bill clause 3, ‘mental health order means a psychiatric treatment order, a community care order, or a restriction order’. Section 36S is relocated into Chapter 6 (Emergency detention) by Schedule 2, Amendment [2.37].
b. 48X, which dictates that ACAT will hold a hearing before making anyone subject to a forensic mental health order. As stated in the Bill Dictionary provided by clause 3, ‘forensic mental health order means a forensic psychiatric treatment order or a forensic community care order’. Section 48X is relocated into Chapter 7 (Forensic mental health) by Schedule 2, Amendment [2.39].
c. 78, which reinforces section 90 of the ACAT Act by providing that for several kinds of proceedings authorised by the Mental Health Act, such as those on mental health and forensic mental health orders, the ACAT must be constituted by ‘a presidential member and a non-presidential member with a relevant interest, experience or qualification’. Section 78 is relocated into the Bill, by Schedule 2, Amendment [2.42].
d. 141, which provides that an appeal to the Supreme Court from an ACAT decision may be brought by someone in relation to whom the decision was made, or someone who appeared, or was entitled to appear, under section 80(1) of the current Act, the discrimination commissioner, or anyone else with the Court's leave. Section 141 is relocated into the Bill, by Schedule 2, Amendment [2.46].
[112] UN Human Rights Committee, International Covenant on Civil and Political Rights General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), UN Doc HRI\GEN\1\Rev.1, 10 April 1992, para. 4.
[113] ibid, para.2.
[114] In R (Wilkinson) v. Responsible Medical Officer Broadmoor Hospital [2002] WLR 419, the United Kingdom Court of Appeal suggests that an express power of detention includes, where necessary, a power to search, because it is necessary to the hospital’s primary function of treating patients and its duty to provide a safe environment for patients and staff. This part of the decision has been subsequently reapplied in the United Kingdom High Court case R. v Home Secretary, ex parte Leech [1994] QB 198. Osman v. United Kingdom (2000) 29 EHRR 245 also states that, under the right to life, there is an obligation on authorities to take preventative measures to protect those at risk from the criminal acts of another person.
[115] See, for example, the Supreme Court of Canada case R. v. Suberu (2009) SCC 33 and the New Zealand Court of Appeal decision R. v. Grayson & Taylor [1997] 1 NZLR 399.
[116] In Canada, a New Brunswick appeal court held in R. v. Kinghorne (2003) that ‘[a]lthough crew members used a portion of the vessel to sleep and eat while at sea, there was no permanency’ and it was ‘ancillary to the principal use of the vessel and would not convert the entire vessel into a dwelling’ (NBQB 341 para. 31).
[117] R. v. Nolet (2010) in which the Supreme Court of Canada recognised only a limited expectation of privacy in the sleeping cab of a commercial truck because it ‘is not only a place of rest but a place of work, and the whole of the cab is therefore vulnerable to frequent random checks in relation to highway transport matters’ (SCC 24, para. 30-1, pp.43-44).
[118] In R. v. M. (M.R.), the Supreme Court of Canada held, in a majority decision, that the seizure of marijuana from a student searched during a school dance did not infringe his rights under section 8 of the Charter of Human Rights and Freedom, which provides that ‘Everyone has the right to be secure against unreasonable search or seizure’, a right that broadly correlates with section 12(a) of the Human Rights Act 2004 (ACT). The majority of the Court stated that a student’s reasonable expectation of privacy in the school environment is ‘significantly diminished’, as school authorities are responsible for ‘providing a safe environment and maintaining order and discipline in the school’ and they need no warrant, so long as they are not an agent of the state, and the standard required is reasonable belief ([1998] 3 S.C.R. 393). Also, see justification of warrantless searches statutorily provided for in exigent circumstances, in R. v. Grant (1993) 84 C.C.C. (3d) 173 (S.C.C.) at 188.
[119] Both LBH v Neary (2011) England and Wales High Court 1377, and A CC v MB (2010) England and Wales High Court 2508, state that perfunctory best interests assessments are unlawful.