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Legislative Assembly
 
MENTAL HEALTH BILL 2014

20 February 2014
Statement of Compatibility
WOOLDRIDGE

 


                            MENTAL HEALTH BILL 2014
                           Statement of compatibility
Ms  WOOLDRIDGE  (Minister  for  Mental  Health)  tabled  following  statement in
accordance with Charter of Human Rights and Responsibilities Act 2006:
  In  accordance   with  section  28  of   the  Charter  of   Human  Rights  and
  Responsibilities  Act 2006,  (the  'charter act'),  I  make this statement  of
  compatibility with respect to the Mental Health Bill 2014 (the bill).
  In  my  opinion,  the bill,  as  introduced  in the  Legislative  Assembly, is
  compatible with the human  rights as set out  in  the charter act. I  base  my
  opinion on the reasons outlined in this statement.

  Overview
  Victoria's Mental Health  Act  1986 ('MHA') is the oldest mental health law in
  Australia. The MHA  establishes a legislative framework  for the provision  of
  mental  health treatment. It  also authorises and regulates  the detention and
  involuntary treatment  of  persons  with  severe mental  illness.  Stand-alone
  mental  health legislation provides  the best means  to articulate and protect
  patients' rights and maximise individual autonomy.
  New legislation is needed to  promote  recovery-oriented practice, to minimise
  the  use  and duration of  compulsory treatment, to  safeguard  the rights and
  dignity  of  people  with  mental  illness,  and  to  enhance  oversight while
  encouraging innovation and service improvement.

  Under the  bill patients  will be presumed to have capacity to make their  own
  treatment  decisions. This presumption can be displaced where  patients do not
  have capacity at the time  the  treatment  decision  needs  to be made. Mental
  health  services  will be  required  to  provide  patients  with  support  and
  information  to enable them to  make or participate   in decisions about their
  treatment and recovery.
  However,  whenever the state  interferes  with  the  privacy  of  individuals,
  appropriate safeguards need to be in place to protect human rights and prevent
  abuses.
  Compulsory assessment and treatment criteria
  The bill has separate criteria for:

    Assessment  orders and court  assessment orders: a person  who appears to be
    mentally ill  and  needs to  be  assessed by an  authorised  psychiatrist to
    determine if he or she requires compulsory treatment; and
    Temporary treatment  orders, treatment  orders, secure treatment  orders and
    court  secure  treatment  orders: a  person  who has  a  mental  illness and
    requires immediate compulsory treatment.
  A person may  be  made subject to an assessment order if  he or she appears to
  have mental illness and all the other assessment criteria apply to the person.
  Where  an assessment  order is  made, a person  may be  taken to  a designated
  mental health service for the purposes of being examined and  assessed  by  an
  authorised psychiatrist.

  An  authorised psychiatrist may  not  make the person  subject to a  temporary
  treatment order unless  the authorised psychiatrist determines that the person
  has mental illness and all the other treatment criteria apply.
  Presumption of capacity
  The bill establishes a presumption that all  people  have  capacity to give or
  refuse to give informed consent in relation to their assessment and treatment.
  This presumption may  be  displaced where it  is demonstrated that the  person
  does not have capacity to make that  decision at  the time  that the  decision
  needs to be made.
  The bill  sets  out  principles for  clinicians  and others to  consider  when
  determining whether a person can make a treatment decision.

  Process for becoming a patient
  Compulsory patients -- part 4 of the bill
  A  person  may  only  be  made  subject  to  an  assessment order or temporary
  treatment order if there is no less restrictive means reasonably available  to
  enable the person to be assessed or treated. This includes whether  the person
  can receive mental health treatment voluntarily. See clauses 5 and 29.
  An assessment order can only be made following an examination by a  registered
  medical practitioner  or a mental  health practitioner who considers  that all
  the criteria for an  assessment  order  apply  to  the person. A mental health
  practitioner is a prescribed class of persons employed by a designated  mental
  health service.

  A  person subject to an assessment order may be taken  to a  designated mental
  health service  for  the  purposes  of  being  examined  and  assessed  by  an
  authorised psychiatrist to 


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determine whether the criteria for a temporary treatment order apply to that person. An authorised psychiatrist may not make the person subject to a temporary treatment order unless the authorised psychiatrist is satisfied that the person has mental illness and all the other treatment criteria apply. A temporary treatment order may only be made for a person who requires immediate treatment to prevent serious harm to himself or herself or another person or to prevent serious deterioration to the person's health. A temporary treatment order has a duration of 28 days unless revoked earlier. The purpose of a temporary treatment order is to enable a person to be compulsorily treated in either an inpatient or community setting. If an authorised psychiatrist considers the patient requires compulsory treatment beyond 28 days, the authorised psychiatrist must satisfy the Mental Health Tribunal (the tribunal) that the criteria continue to apply to the person and that a treatment order should be made. See clause 52. The tribunal is an independent statutory body comprising a lawyer, a psychiatrist or registered medical practitioner and a person appointed to represent the views of the community. A patient has the right to attend and to be legally represented at the hearing before the tribunal. See part 8. If a person pleads guilty or is found guilty of an offence and he or she is not in custody, the person may be made subject to a court assessment order. The purpose of a court assessment order is to enable an authorised psychiatrist to determine whether the criteria for a temporary treatment order or a court secure treatment order apply to the person and to provide advice to the court to enable it to determine the most appropriate sentence. See division 2 of part 5. A person subject to a court assessment order may not be compulsorily treated unless an authorised psychiatrist is satisfied that urgent treatment is necessary to prevent serious harm to the person or another person or serious deterioration in the person's health. Security patients -- part 11 of the bill A court secure treatment order is a sentencing option available to a court where, but for the person's mental illness, the court would have sentenced the person to a term of imprisonment. The duration of the court secure treatment order must not exceed the period of time that the person would have been sentenced to had he or she been sentenced to a term of imprisonment. See division 2 of part 11. A secure treatment order is where a person becomes so mentally unwell in prison that he or she requires compulsory treatment and must be transferred from prison to a designated mental health service. See division 3 of part 11. Persons subject to secure treatment orders or court secure treatment orders are security patients. Security patients may only be detained and treated for their mental illness while the relevant statutory criteria apply. The criteria include the requirement that the person has mental illness and that he or she requires treatment to prevent serious harm to themselves or another person or to prevent serious deterioration in the person's health. There must be no less restrictive means reasonably available to enable the person to receive mental health treatment. If the criteria do not apply, the person must either be transferred to prison to serve the balance of their sentence or released on parole (if eligible). Orders of fixed duration and tribunal hearings Compulsory patients Assessment orders, temporary treatment orders and treatment orders have a fixed maximum duration. The tribunal may determine to fix the duration of a treatment order for a shorter period if it considers that more frequent tribunal oversight is required in the circumstances. The authorised psychiatrist must immediately revoke a person's assessment order, temporary treatment order or treatment order where the relevant statutory criteria no longer apply to that person. A patient may make an application to the tribunal at any time for a revocation of his or her temporary treatment order or treatment order. If the tribunal determines that one or more of the criteria do not apply to the patient, the tribunal must revoke the temporary treatment order or treatment order. There is no limit on the number of applications for revocation that a person may make to the tribunal. A patient may attend the hearing and has a right to be legally represented. In the case of a community assessment order the fixed maximum duration is 24 hours. In the case of an inpatient assessment order it ends 24 hours after the person is received at a designated mental health service or 72 hours, if the person is not received at a designated mental health service. If the authorised psychiatrist is unable to determine whether all the criteria for a temporary treatment order apply to the person, the authorised psychiatrist may extend the assessment order for 24 hours no more than twice. A temporary treatment order has a duration of 28 days unless revoked earlier. Within those 28 days the tribunal must hear and determine whether the criteria for a treatment order apply to the patient. If, at the hearing, the tribunal is satisfied that all the treatment criteria apply to the patient it must make a treatment order. The tribunal will also determine the setting where treatment will be provided. An inpatient treatment order will have a maximum duration of six months and a community treatment order will have a maximum duration of 12 months. The determination of the setting and the duration must be least restrictive in the circumstances. For a young person under the age of 18 years, a treatment order may only be made for a maximum of three months regardless of whether the young person is receiving treatment as an inpatient or in the community. The determination of the setting and the duration must be least restrictive in the circumstances. Security patients The orders to which a security patient may be subject are a court secure treatment order or a secure treatment order. Within 28 days after a person is received as a security patient at a designated mental health service, the tribunal must conduct a hearing to determine whether the relevant statutory criteria for compulsory treatment apply to the person. If the
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tribunal is satisfied that all the treatment criteria apply, the tribunal must order that the person remain a security patient. The tribunal must continue to review the person at least every six months while the person remains a security patient. If the authorised psychiatrist or the tribunal determines that the relevant statutory criteria no longer apply, the person must be discharged as a security patient and transferred to prison to serve the remainder of his or her sentence or, where appropriate, released on parole. At any time a security patient may apply to the tribunal to be discharged as a security patient. Treatment while a person is a patient under the bill -- part 5 of the bill Informed consent must be sought before a course of treatment can be administered to a patient. The bill sets out the requirements for seeking informed consent. The authorised psychiatrist must make treatment decisions (excluding electroconvulsive treatment and neurosurgery for mental illness) in some circumstances where a patient does not have capacity to give informed consent or has capacity and does not consent. The provision of treatment must be to prevent serious harm to the person or another person or to prevent serious deterioration to the person's health. The treatment provided must be the least restrictive treatment possible in the circumstances. There is a list of factors set out in the bill to which the authorised psychiatrist must have regard to when determining the least restrictive treatment. Tribunal approval of ECT and NMI The tribunal must hear and determine whether to approve the performance of electroconvulsive treatment (ECT) for patients who do not have capacity to give informed consent to ECT. The tribunal must also approve the performance of ECT for all people under the age of 18 years ('young persons'), regardless of whether they have capacity to give informed consent to ECT. Neurosurgery for mental illness (NMI) (formerly psychosurgery) may only be performed where a person has given informed consent and the tribunal determines that the person has capacity to give that informed consent. The tribunal must also be satisfied that the person will benefit from the performance of NMI. Safeguards during compulsory treatment The bill will prescribe circumstances where a person with mental illness must be given a statement of rights. For example, a person subject to an order must be given a statement of rights and an explanation of those rights and other information under the bill. See division 1 of part 5. The bill will also establish the right of a person to nominate another person to receive information and to provide support for the period of time the person is subject to an order. The nominated person will assist the person to exercise his or her rights and represent the person's views and preferences. See division 4 of part 3. The bill will require that where a patient has a guardian, the guardian will receive information and be consulted about the patient's treatment. Similarly, where a child is less than 16 years of age, a parent will receive information and be consulted about the child's treatment. The bill will also establish a right to seek a second psychiatric opinion. Where certain categories of patient obtain a second opinion that recommends changes to their treatment, the authorised psychiatrist must have regard to that opinion. The authorised psychiatrist will not be required to change the patient's treatment; however, the patient will be entitled to apply to the chief psychiatrist for a review of their treatment as recommended by the second opinion psychiatrist if the authorised psychiatrist does not change the patient's treatment after the patient obtains the second opinion report. See division 4 of part 5. The bill enables a person to make an advance statement to record his or her treatment preferences in the event the person becomes unwell and requires treatment. The authorised psychiatrist must have regard to an advance statement when considering the least restrictive treatment for a patient. See division 3 of part 3. The bill will establish the mental health complaints commissioner ('the commissioner') as an independent entity who may receive and investigate complaints about public mental health services. The commissioner will have broad powers to investigate services, informally resolve disputes, conciliate or otherwise resolve disputes, make recommendations and issue compliance notices for breaches of the proposed legislation. See part 10. Human rights protected by the charter act that are relevant to the bill The primary rights relevant to the bill are: Section 8 -- recognition and equality before the law; Section 10(b) -- protection from torture and cruel, inhuman or degrading treatment; Section 10(c) -- right not to be subjected to medical treatment without full, free and informed consent; Section 12 -- freedom of movement; Section 13 -- privacy and reputation; Section 15 -- freedom of expression; Section 21 -- liberty and security of the person; Section 22 -- humane treatment when deprived of liberty; Section 24 -- fair hearing; Section 25(1) -- the right to be presumed innocent until proved guilty. These rights, as they are relevant to the bill, are discussed in more detail below.
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I have chosen to deal with the primary charter act rights relevant to the bill by grouping them together when they raise issues that substantially overlap. To the extent that these groups of rights are limited by the provisions of the bill, I consider that in each case the limitations are reasonable and therefore comply with the charter act. The right not to be subject to medical treatment without consent -- section 10(c) Protection from torture and cruel, inhuman or degrading treatment -- section 10(b) The right to privacy -- section 13(a) Section 10(c) of the charter act provides that a person must not be subjected to medical treatment without his or her full, free and informed consent. Section 10(b) of the charter act provides that a person must not be subject to torture and cruel, inhuman or degrading treatment. Section 13(a) of the charter act recognises a person's right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. In this context I am concerned with privacy in the sense of 'bodily integrity', which involves the right not to have our physical selves interfered with by others without our informed consent. This includes the compulsory administration of medications as well as invasive procedures. These rights are relevant to the bill as clause 71 authorises the provision of treatment without full, free and informed consent where the person is subject to a temporary treatment order, treatment order, secure treatment order or court secure treatment order. Part 6 also empowers clinicians to undertake restrictive interventions, which impact on a person's bodily integrity. The use of restrictive interventions are permitted on a person receiving mental health services at a designated mental health service where it is necessary to prevent serious and imminent harm to the person or another person or to administer necessary medical treatment to a person. Restrictive interventions include physical restraint, mechanical restraint and seclusion. Restrictive interventions may not be used unless all other less restrictive options have been tried or considered and found unsuitable in the circumstances. Division 3 of part 15 provides that these interventions may be used to search people for the purpose of safe transport to or from a designated mental health service. A 'pat down' search may be used in circumstances where there may be property on the person that presents a danger to the health and safety of any person or that could be used to assist the person to escape. (a) the nature of the right being limited Underlying these three rights are the concepts of personal autonomy and human dignity. These rights are not absolute in law and may be subject to reasonable limitations. (b) the importance of the purpose of the limitation The purpose of the limitation on the right not to be subject to medical treatment without consent is to ensure that a person suffering from severe mental illness receives necessary treatment at times when he or she does not have the capacity to give full, free and informed consent to treatment or when he or she has capacity but refuses to give consent and needs immediate treatment to prevent serious harm to the person or another person or serious deterioration to the person's health. The purpose of the limitation on the rights to privacy and protection from degrading treatment is to permit: restrictive interventions to enable the safe delivery of mental health services by preventing serious and imminent harm to the person subject to the restrictive intervention or another person; searches and sedation to enable a person to be safely taken to or from a designated mental health service for treatment. These practices are permitted to be used judiciously to ensure the safety of the person and the safety of others such as ambulance employees and medical staff. Without these limitations, people may suffer unnecessarily and experience serious harm or deterioration in their mental health or may harm another person. In my opinion, these are pressing and substantial concerns that need to be addressed by the legislation. (c) the nature and extent of the limitation The right not to be subject to medical treatment without consent The following safeguards in the bill are intended to ensure that the extent of the limitation on the right not to be subject to medical treatment without consent is kept to the minimum necessary. In order to ensure that the range of person who may be subject to treatment without their consent is narrow, parts 4 and 5 of the bill distinguish between persons who have capacity to provide informed consent to treatment and those who do not have capacity or do not give informed consent. Clause 70 establishes a presumption that all persons have the capacity to give informed consent to treatment regardless of their age or legal status. Clause 68 provides that the presumption may only be displaced by evidence that the person does not have capacity to give informed consent to treatment at the time the decision must be made. Clause 69 also specifies the elements required for seeking informed consent. The bill restricts the circumstances in which compulsory mental health treatment can be provided when a person is unable or does not give informed consent. Part 4 requires that a person be made subject to a temporary treatment order or treatment order before compulsory treatment can be given. Clauses 45 and 46 provide that a person may not be made subject to a temporary treatment order without first being made subject to an assessment order. Clauses 38 and 42 permit urgent treatment for a person subject to an assessment order in circumstances where the person consents or a registered medical practitioner employed
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at a designated mental health service is satisfied that urgent treatment is necessary to prevent serious harm to the person or another person or serious deterioration in the person's health. This limitation is required to prevent the person suffering serious harm or suffering serious deterioration before the authorised psychiatrist is able to complete the assessment and determine whether the criteria for a treatment order apply to the person. Clauses 5, 71, 72 and 73 provide that an authorised psychiatrist may only provide substitute consent to treatment for a person subject to a temporary treatment order or treatment order in specified circumstances. Substitute consent is only permitted once it is determined that person is either unable to consent or does not give informed consent to the treatment that is necessary to prevent serious harm to the person or another person or serious deterioration in the person's health. Clause 5 sets out that the relevant criteria for the order must apply to the person, including that the immediate treatment is necessary to prevent serious harm to the person or another person or serious deterioration to the person and there is no less restrictive way for the person to be treated. Clause 71(3) requires the authorised psychiatrist to have regard to a person's treatment preferences, including those in any advance statement, when making treatment decisions. While the authorised psychiatrist is not obligated to follow the treatment preferences of a patient, clause 73 provides that the authorised psychiatrist must inform the patient if the patient's preferences will not be followed and give reasons for departing from the patient's advance statement. Clause 73(2) further provides that the authorised psychiatrist must inform the patient that he or she can request written reasons. If the patient does request written reasons, clause 73(3) requires that the written reasons must be provided to the patient within ten working days. Part 5 makes special arrangements for ECT and NMI. The tribunal must approve the performance of ECT on a patient who does not have capacity to give informed consent to the performance of ECT before it can be performed. The tribunal must also approve the performance of ECT on a person under the age of 18 years ('young person') regardless of whether that young person has the capacity to give informed consent. Where a patient or a young person has capacity to give informed consent and refuses ECT, the tribunal must respect the informed decision and refuse the performance of ECT. This requirement upholds the right to autonomy and bodily integrity rights. A person must have capacity to give informed consent to NMI and must in fact give informed consent before it can be performed. A person cannot give substitute consent to another person receiving NMI. For example, a guardian cannot give consent for a represented person to receive NMI. This means that NMI cannot be given compulsorily to any person in Victoria. The tribunal will be responsible for determining whether the person has given informed consent and whether the NMI will be of benefit to the person. The right to privacy and protection from degrading treatment The following safeguards in the bill are intended to ensure that the extent of the limitations on the right to privacy and protection from degrading treatment is kept to the minimum necessary. Division 3 of part 15 provides that only an authorised person (defined by the bill as a member of the police force, ambulance paramedic, medical practitioner employed by a designated mental health service, mental health practitioner or member of a prescribed class) may seize or detain a thing found in a search of a person for the purpose of providing safe transport to or from a designated mental health service. A thing may only be seized and detained if it presents a danger to the person or anyone else or could assist the person to escape. In addition, the authorised person must take reasonable steps to return the thing to the person from whom it was seized once the reason for its seizure no longer exists. Permitting searches in these circumstances is considered reasonable to prevent danger to the health and safety of any person or to prevent a patient's escape. It is intended that these measures are only to be used as part of a regime that includes the safeguards described above. Part 6 provides that the restrictive interventions may only be used in specified circumstances. A person may only be kept in seclusion if it is necessary to prevent the person causing imminent and serious harm to the person or another person. Bodily restraint may only be used on a person if it is necessary to prevent imminent and serious harm to the person or to another person or is required to administer treatment or medical treatment to the person. A restrictive intervention may only be used after all other options have been tried or considered and found to be unsuitable. The restrictive intervention must be stopped without delay if the criteria for placing the person in restraint or seclusion no longer apply. Restrictive interventions may only be authorised by the authorised psychiatrist, or if he or she is not immediately available, a registered medical practitioner or the senior registered nurse on duty. Clause 350 provides that bodily restraint or sedation must be necessary to enable the person to be safely taken to or from a designated mental health service. The bodily restraint and sedation used must be the least restrictive and intrusive to enable safe transport of the person. All reasonable less restrictive alternatives to take the person must have been tried or have been considered and found unsuitable. Bodily restraint for the purposes of transport may only be carried out by an authorised person. Sedation may be administered by a registered medical practitioner or a registered nurse or ambulance paramedic at the direction of a registered medical practitioner or if the administration of sedation is in their scope of practice. These limitations are required in legislation to ensure that designated mental health services have adequate powers to deal with the day to day management of mental health services, including the safe transport of people with mental illness. These limitations are also necessary to protect the health and safety of people receiving treatment compulsorily. (d) the relationship between the limitation and its purpose The limitation on the right not to be subject to medical treatment without consent is to ensure a person only receives treatment without consent when this is necessary to prevent serious harm to the person or another person or serious deterioration in the person's health.
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As outlined above, the bill specifies the circumstances in which the right to privacy is limited and includes safeguards to ensure interference with the right to privacy is not used arbitrarily. The limitation on the right to protection from degrading treatment is to ensure a person is only made subject to a search, sedation or a bodily restraint to protect the safety of the person who needs treatment, or any other person for example persons accompanying or treating the person or members of the public. (e) any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of the limitation. If the person is unable to consent to treatment, there is no less restrictive way for them to receive treatment to prevent serious harm or deterioration other than by a substitute decision-making scheme. Empowering the authorised psychiatrist to consent to treatment on such a person's behalf is a protective mechanism to prevent abuses of this vulnerable patient group. If a patient has the capacity to make a decision but refuses treatment, compulsory treatment is reasonable in circumstances where the person has mental illness and, because of the mental illness, immediate treatment is necessary to prevent serious harm to the person or another person or serious deterioration in the person's health. Part 6 limits interference with a person's bodily integrity by expressly providing that restrictive interventions may only to be used after all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable. The restrictive intervention must cease immediately when the reason for the intervention no longer applies. If the person cannot be safely detained for treatment or treated without a restrictive intervention, there is no less restrictive way for the person to be treated. Division 3 of part 15 provides that the use of bodily restraint and sedation for transport purposes may only be used after all reasonable less restrictive alternatives have been tried or considered and deemed unsuitable in the circumstances. When used the restraint or sedation must be administered in the least restrictive and least intrusive manner to enable safe transport. (f) conclusion For the reasons outlined above the limitations that the bill places on the right not to be subject to medical treatment without consent, on the right to be protected from degrading treatment and on the right to privacy are reasonable, proportionate and compatible with the charter act. The right to privacy -- section 13(a) Freedom of expression -- section 15 Section 13(a) of the charter act recognises a person's right not to have his or her privacy unlawfully or arbitrarily interfered with. As discussed above, privacy includes bodily integrity, but right to privacy is also relevant to the bill in other ways. Section 15 of the charter act establishes the right to freedom of expression. Both of these rights are relevant to the bill as follows. Division 3 of part 15 provides for powers of entry in order to take a person to a designated mental health service in accordance with other provisions of the bill. The powers include the use of reasonable force to gain entry to premises to apprehend a person for the purposes of taking the person to a designated mental health service. Division 2 of part 3 provides for restrictions to be placed on an inpatient's right to communicate while at a designated mental health service if the authorised psychiatrist is satisfied that it is necessary to protect the health, safety or wellbeing of the inpatient or another person. Division 1 of part 15 also provides for the disclosure and collection of health information without the consent of the person to whom the information relates. In relation to the right to freedom of expression, clause 124 provides for the chief psychiatrist or an authorised officer (being a person appointed by the chief psychiatrist under the bill) to require a person to answer questions and to produce documents that are in the person's possession or control. Clause 254 provides for similar powers for the commissioner. (a) the nature of the right being limited The nature of the right to privacy is as stated on page 7. Underlying the nature of the right to freedom of expression is the basic principle that every person has a right to seek, retrieve and impart ideas and information of all kinds. The right to freedom of expression is qualified in that it may be subject to lawful restrictions such as those reasonably necessary to protect public health. (b) the importance of the purpose of the limitation The purpose of the limitation that permits entry to premises is to enable the timely apprehension of a person to enable them to receive mental health assessment and treatment in prescribed circumstances. The purpose of the limitation on an inpatient's right to communicate is to protect the health, safety or wellbeing of the inpatient or any other person. The purpose of the limitation that permits the sharing of health information without consent is to protect the health and safety of persons receiving mental health services and the safety of other people. Information sharing also permits the identification and monitoring of trends in respect of mental health treatment and care over time. The purpose of the limitation that requires a person employed or engaged by a designated mental health service to answer questions or produce documents is to improve the quality and safety of mental health services and to monitor compliance with the regulatory framework. These purposes are important and necessary for the effective operation of the bill.
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(c) the nature and extent of the limitation The charter act requires that any interference with a person's privacy must not be 'unlawful'. The scope of any legislative provision that allows an interference with privacy must specify the precise circumstances in which interference may be permitted. Any interference with the right must not be arbitrary and any limitation on privacy must be reasonable in the circumstances. These clauses do not unreasonably limit the right to privacy. The powers are provided by law and are not arbitrary since they are limited and purposeful. Clause 353 specifies when the power of entry may be used and how that power is to be exercised. The use of entry powers is restricted to authorised persons. The authorised person must reasonably believe the person to be apprehended may be found at the premises. The entry power in clause 353 may only be used if a provision in the bill provides for a person to be taken to a designated mental health service. Before entering, the authorised person must give any person at the premises an opportunity to permit entry to the authorised person. Reasonable force may only be used to gain entry where permission is not granted. Division 2 of part 3 expressly provides that patients have a right to lawful communication and to receive reasonable assistance to exercise this right. The authorised psychiatrist may restrict an inpatient's communications if he or she is satisfied the measures are necessary to protect the health, safety or wellbeing of any person. It is appropriate to extend the limitation to protect wellbeing because safety may not be an issue where an inpatient is detained but is able to make distressing telephone calls. The limitation is restricted to communications to or from a designated mental health service including the receipt of visitors at the designated mental health service. The limitation may only be imposed by the authorised psychiatrist and must be for the minimum time necessary in the circumstances to achieve its purpose and must be reviewed regularly. The authorised psychiatrist must, as soon as practicable, after commencement of the restriction notify the patient, the nominated person, any guardian or parent (if the patient is under 16 years of age) or, in some cases, the secretary of the restriction. Part 15 provides that health information may only be disclosed or collected in specified circumstances to protect patient privacy. In the absence of consent, health information may be disclosed to the extent reasonably necessary to enable the performance of functions and exercise of powers under the act. Disclosure is also permitted in other specified circumstances. Disclosure may be authorised by another act or by specific health privacy principles under the Health Records Act 2001. Disclosure of information can occur when required by a mental health service provider to provide health services to the person. Disclosure is also permitted when required by a carer in order for the carer to provide care to a patient. Disclosure 'in general terms' may be made to a friend, family member or carer of the person to whom the health information relates if it is not contrary to any wish expressed by the person about disclosure to these persons. Health information may be collected by a designated mental health service for the purpose of providing mental health services. The commissioner, the chief psychiatrist, the secretary, the tribunal and the Forensic Leave Panel may collect health information for the purposes of performing functions or exercising their powers under the bill. The nominated person's scheme in division 4 of part 3 is an additional safeguard to protect a person's privacy. The scheme enables a person to choose another person to receive key information about the person's treatment and to be involved in certain discussions, for example, treatment planning. The power to require persons to answer questions and produce documents in their possession (contained in clauses 124 and 254) is not an unreasonable limitation on the right to freedom of expression. It is restricted to persons who are employed or engaged by a designated mental health service and the questions must relate to issues that arise from their employment or engagement. The power may only be exercised by the chief psychiatrist or an authorised officer (being a person appointed by the chief psychiatrist under the bill) or the commissioner or an investigator appointed by the commissioner. The power may only be used to carry out the functions of the chief psychiatrist, to improve the quality or safety of mental health services or to monitor compliance. The commissioner may only use this power to carry out his or her functions in order to resolve complaints made against mental health service providers. Clause 360 expressly provides for protection against self-incrimination, enabling a person to refuse to answer questions or provide information where that would tend to incriminate the person. (d) the relationship between the limitation and its purpose Although the bill interferes with privacy, the limitations are rationally and proportionately connected to their purpose. The entry powers may only be used when a provision of the bill provides for the person to be taken to a designated mental health service. The purpose of the limitation is to ensure the person receives timely access to treatment to prevent serious deterioration in the person's health or serious harm to the person or another person. Any restriction on the right to communicate only relates to a person while he or she is an inpatient at a designated mental health service and can only be imposed for as long as it is necessary and must be regularly reviewed by the authorised psychiatrist. The limitation can only be exercised to protect the safety and wellbeing of the inpatient and any other person from communications that would cause harm. In relation to sharing health information, the limitations permitting disclosure and collection are specified in detail. The purpose of the limitations is to protect the health and safety of persons who need treatment by enabling treatment and care decisions to be based on all relevant information. Information sharing also permits the identification and monitoring of trends in respect of mental health treatment and care over time.
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Requiring a person to answer questions or produce documents is only permitted to improve the quality and safety of mental health services and monitoring compliance with the bill. (e) any less restrictive means reasonably available to achieve its purpose There is no less restrictive means reasonably available to achieve the purposes of the limitations. (f) conclusion I consider that the bill does not authorise an unlawful or arbitrary interference with a person's privacy. For the reasons outlined, the limitations that the bill places on the right to privacy and freedom of expression are reasonable and proportionate and are compatible with the charter act. The right to liberty and security of person privacy -- section 21 Freedom of movement -- section 12 Section 21 of the charter act provides that a person has a right to liberty and security. It sets out the minimum rights of individuals who are arrested or detained. By restricting the valid reasons for detention, the charter act aims to minimise the risk of arbitrary or unlawful deprivation of liberty. Section 12 of the charter act provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live. These rights are relevant to the bill because part 4 provides for detention for assessment and compulsory mental health treatment. These rights are also relevant to the bill because division 2 of part 15 provides for the apprehension of persons in specified circumstances and for bodily restraint and sedation for transport. Refer to the discussion of sections 10(c) and 13(a) of the charter act commencing on page 7 for the issues raised by these limitations. (a) the nature of the right being limited The right to liberty and freedom of movement rely on the principle that every person has a right to physical liberty that can only be interfered with in specific circumstances, clearly established by law. These rights are not absolute and may be subject to reasonable limitations. (b) the importance of the purpose of the limitation The purpose of the limitation is to ensure that necessary mental health treatment can be provided even if it requires detention of a person or constraints on a person's liberty. This is an important purpose because the treatment is necessary to prevent serious harm to the person or another person or serious deterioration in the person's health. (c) the nature and extent of the limitation The limitation is proportionate. The powers to detain and apprehend are not arbitrary. The bill provides that a person can only be detained or apprehended in specified circumstances. Part 4 provides a person may be detained in a designated mental health service for assessment or compulsory treatment. Assessment or compulsory treatment in the community may also involve some limitation of the person's liberty and freedom of movement because the person may be required to attend for assessment or treatment. The bill seeks to minimise the duration and extent of the limitations on liberty and freedom of movement. It also includes a number of procedural safeguards that will assist in ensuring that continued detention does not become arbitrary. All orders made under the bill are of fixed maximum duration. These are maximum periods and the bill provides the order must be immediately revoked by the authorised psychiatrist or the tribunal if the statutory criteria no longer apply to the person. Clause 60 provides that compulsory patients may apply to the tribunal at any time to revoke the order to which they are subject. Clause 272 and 279 provide that security patients may apply to the tribunal to be discharged as a security patient. If the tribunal is not satisfied that the relevant criteria for the relevant order apply to the person, the tribunal must revoke the order. See clauses 55, 273 and 279. There is no onus on the applicant to satisfy the tribunal that the criteria no longer apply to the person. The onus is on the authorised psychiatrist to satisfy the tribunal that all the criteria apply to the person. The bill provides for apprehension in three specified circumstances: at clause 352 where a patient is absent without leave; at clause 351 where a person is found by police who appears to have mental illness and who presents risk of serious harm; and at clause 353 where a provision of the bill provides for a person to be taken to a designated mental health service. The bill restricts the use of apprehension powers to authorised persons. Clause 353 satisfies the requirements of section 21(4) of the charter act by requiring that a person apprehended or detained under the bill must be informed at the time of the reason for the apprehension or detention. The bill does not make this provision in relation to the apprehension of persons by police because police are required to give reasons when they apprehend any person or in relation to the apprehension of security patients whose apprehension is authorised by court warrant because a copy of the warrant must be provided at the time of execution. Clause 352 provides that compulsory patients, security patients and interstate compulsory and security patients may be apprehended by an authorised person if they are absent without leave from a designated mental health service. For patients who are absent without leave, the legal authority for the apprehension arises from the breach of the order to which they are subject. Apprehension seeks to prevent harm to the person or any other person in circumstances where the state of the person's mental health may not be known. Clause 352(4) provides that following apprehension the person is to be taken to the relevant designated mental health service. Clause 351 provides that the police may apprehend a person who appears to have mental illness if they reasonably believe that the person needs to be apprehended to prevent serious harm to the person or another person. As soon as practicable
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after apprehension, the police must arrange for the person to be examined by a registered medical practitioner or mental health practitioner who must determine whether to make an assessment order for the person. The police must immediately release the person if the practitioner who examines the person determines that the criteria for an assessment order do not apply to the person. Clause 353 also provides that an authorised person may apprehend a person to give effect to any provision that requires the person to be taken to a designated mental health service. The provisions in the bill this refers to are clauses 33, 45(1)(b), 58(4) and 350 and are only for the purpose of assessment against the statutory criteria and/or treatment at the designated mental health service. (d) the relationship between the limitation and its purpose The limitation is rationally and proportionately connected to the purpose. In relation to apprehension, division 3 of part 15 provides that a person may only be apprehended by authorised persons in specified circumstances. Part 4 provides detention for only as long as the statutory criteria apply, up to a specified maximum duration and for the purpose of preventing serious harm to the person or another person or serious deterioration in the person's health. (e) any less restrictive means reasonably available to achieve its purpose There is no less restrictive means reasonably available to achieve the purpose of the limitation. If a person is unable to consent to assessment or treatment, there is no less restrictive way for them to be assessed or treated, other than being made subject to an assessment order, a temporary treatment order or a treatment order, which necessarily results in some limitation of their liberty or freedom of movement. For compulsory patients, the setting for assessment and treatment must also be the one that is least restrictive. Compulsory assessment or treatment may only be provided in a designated mental health service if the assessment or treatment cannot occur in the community. If a person is unable to consent to being taken to a designated mental health service or to being assessed by a registered medical practitioner or mental health practitioner, there is no less restrictive way for him or her to be taken or assessed, other than being apprehended or assessed in accordance with the bill. (f) conclusion For the reasons outlined, the limitations that the bill places on the right to liberty and security and the right to freedom of movement are reasonable, proportionate and compatible with the charter act. Humane treatment when deprived of liberty -- section 22 Section 22 of the charter act provides that all persons deprived of liberty must be treated with humanity and respect for their inherent dignity. These rights are relevant to the bill because part 4 provides for detention for assessment and compulsory mental health treatment. These rights are relevant to the bill because division 8 of part 11, division 3 of part 13 and division 3 of part 15 provide for the apprehension of persons in specified circumstances. These rights are also relevant to the bill when it provides for bodily restriction and sedation of persons. Refer to the discussion of sections 10(c) and 13(a) of the charter act commencing on page 7 for the issues raised by these limitations. (a) the nature of the right being limited The purpose of the right is to recognise the particular vulnerability of persons in detention. The right requires the state to treat all persons in detention with humanity and dignity. The right requires that detained persons ought not to be subject to any hardship or constraint other than those resulting from the deprivation of liberty. However, the right is not absolute and may be subject to reasonable limitations. (b) the importance of the purpose of the limitation The purpose of the limitation is to ensure that persons with severe mental illness receive necessary treatment and care while they are detained. The limitation of the right in the form of compulsory assessment and treatment of persons is central to the purpose of the bill, which is to provide for the treatment and recovery of persons with severe mental illness. (c) the nature and extent of the limitation The limitations are proportionate. The purpose of detaining persons under the bill is to provide for their treatment. The bill requires that all persons subject to a temporary treatment order, treatment order, secure treatment order or court secure treatment order are to receive treatment. The bill includes safeguards that are intended to ensure that the limitations on the right to humane treatment are kept to the minimum necessary. The objectives and principles in part 2 are applicable to all action taken under the bill and expressly provide for the protection of the rights and the dignity of persons with mental illness. As already discussed the bill contains a number of safeguards to ensure that persons subject to temporary treatment orders, treatment orders, secure treatment orders or court secure treatment orders are sufficiently protected and treated with humanity at all times. Part 4 provides that a person subject to a temporary treatment order, treatment order, secure treatment order or court secure treatment order must be informed of his or her rights and provided with a statement of rights. The bill strengthens the service improvement and monitoring role of the chief psychiatrist. Clause 129 provides that the chief psychiatrist may issue directions to a mental health service provider to improve the quality and safety of the
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mental health services provided by the mental health service provider generally or to a specified person. Division 2 of part 7 will empower the chief psychiatrist to monitor services, conduct investigations and conduct clinical practice audits. Part 9 provides that community visitors will also continue to visit designated mental health services and other prescribed premises to ensure the adequacy of facilities and the standard of care. Division 1 of part 10 establishes the commissioner who has broad powers to informally resolve complaints, investigate complaints, conciliate disputes, make recommendations and issue compliance notices. (d) the relationship between the limitation and its purpose The limitation is rationally and proportionately connected to its purpose. While detained, a patient will only receive mental health treatment without consent when necessary to prevent serious deterioration in the patient's health or serious harm to the patient or another person. Restrictive interventions may only be used to prevent imminent and serious harm to a person receiving mental health services in a designated mental health service or another person or in the case of bodily restraint being required to administer necessary treatment or medical treatment to the person. The intervention must cease immediately if the reason for using the restrictive intervention is no longer relevant. (e) any less restrictive means reasonably available to achieve its purpose If the criteria for compulsory mental health treatment apply in a designated mental health service, there must be no less restrictive means reasonably available to achieve the purpose of providing mental health treatment for a patient. If the treatment can be provided in the community, the person will no longer be detained, as there is a less restrictive means of achieving this purpose. Where a prisoner has been transferred to the designated mental health service to receive compulsory treatment as a security patient, there will be no less restrictive means reasonably available to provide mental health treatment for the person. This is because transfers will only occur when voluntary treatment in prison does not address the person's treatment needs. Compulsory treatment is not provided in prisons. Part 6 provides that a restrictive intervention must only be used when all reasonable and less restrictive options have been tried or considered and found to be unsuitable. In these circumstances there will be no less restrictive means to prevent imminent and serious harm to that detained person or another person (such as another patient or staff) or to administer necessary treatment. (f) conclusion For the reasons outlined, the limitations that the bill places on the right to humane treatment are reasonable and proportionate and compatible with the charter act. I am satisfied that these measures, which are in addition to those that operate under the current act, are sufficient to ensure that all persons deprived of liberty are treated with humanity and with respect for the inherent dignity of the human person. Fair hearing -- section 24 Section 24 of the charter act guarantees all persons the right to a fair and public hearing. It includes the right to have a proceeding decided by a competent, independent and impartial tribunal. The right to a fair hearing is relevant to the bill because part 8 establishes the tribunal and regulates the appointment of tribunal members. (a) the nature of the right The right to a fair hearing is concerned with procedural fairness to ensure the proper administration of justice. This right can only be interfered with in specified circumstances. Fair hearing What constitutes a fair hearing will depend on the procedures of the tribunal, the extent to which they protect the rights of the parties and the extent to which they ensure that each party to the proceedings has a reasonable opportunity to present their case under conditions which do not place that party at a substantial disadvantage. Division 5 of part 8 sets out the procedure of the tribunal. Clause 181 expressly provides that the tribunal is bound by the rules of procedural fairness. Clause 184 provides that a person who is the subject of a proceeding before the tribunal has the right to appear in person and has the right to legal representation. Clause 185 provides that a party may be assisted by an interpreter or another person necessary or desirable to make the hearing intelligible to that party. Under clause 189 the tribunal has an obligation to provide written notice of a hearing to the parties and any other significant persons such as the parent of a person under the age of 16 years who is the subject of a proceeding. Clause 191(1) places an obligation on the relevant designated mental health service to provide access to any documents relevant to a proceeding at least 48 hours before a hearing. Pursuant to clause 191(2) the authorised psychiatrist may make a non-disclosure application to the tribunal if he or she believes that the material would reasonably cause serious harm to the person or another person. If the tribunal is not satisfied that the material in question would cause serious harm, clause 191(4) provides that the tribunal may refuse the authorised psychiatrist's application for non-disclosure or adjourn the hearing for a period not exceeding five business days. Clause 195(2) provides that the tribunal must give oral reasons for making a determination at the conclusion of the hearing including an explanation of the determination and any order. Clause 195(4) requires the tribunal to take reasonable steps as soon as practicable to give the person who is the subject of the proceeding and other parties to whom notice was given a copy of the order. A party to the proceedings may request a statement of reasons under clause 198 for the decision within 20 business days and the tribunal may accept a request for reasons outside this time
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if special circumstances exist. Under clause 201 a person who was a party to a proceeding before the tribunal may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the tribunal's decision. Division 6 of part 8 provides for a rules committee to be established to develop rules of practice and procedure and practice notes for the tribunal. Public hearing Clause 193(1) provides that hearings before the tribunal are to be closed to the public. This reflects the sensitive nature of the proceedings. However, under clause 193(3) a person who is the subject of a proceeding before the tribunal may request the hearing or any part of the hearing be heard in public. In addition clause 193(2) the tribunal may order that the hearing or any part of the hearing be open to the public if it is satisfied that it is in the public interest. Competent, independent and impartial tribunal Clause 159 provides that the tribunal will comprise members in four categories, legal, psychiatrist, registered medical practitioner and community. The first three categories of membership will require specialist professional qualifications and experience. For a period of 12 months from the commencement day of the bill, clause 425 provides that on the determination of the president of the tribunal, the tribunal is determined by a legal member and a community member where a psychiatrist member or a registered medical practitioner member is not available. The Governor in Council will appoint members on the recommendation of the minister. The tribunal is an independent quasi-judicial tribunal, not subject to the direction or control of the minister or any other entity or body. The bill provides that determinations of the tribunal are subject to review by the VCAT and clause 197 sets out that a question of law may be referred to the Supreme Court with the consent of the president of the tribunal. To ensure the impartiality of tribunal members, clause 159(7) expressly prohibits full-time and part-time tribunal members obtaining outside employment without the prior consent of the minister or president (depending on the member's role). Clause 364 also imposes a duty on members to disclose a conflict of interest. (b) conclusion For the reasons outlined I am of the opinion that the bill promotes and does not unreasonably limit a person's right to a fair hearing under the charter act. The right to be presumed innocent until proved guilty -- section 25(1) Section 25(1) of the charter act provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that he or she is not guilty of an offence. Clause 358(1) creates an offence for a person to give information or prepare or produce a document that is required under this act that the person believes to be false or misleading. Subsection (2) of this clause provides that it is a defence if the accused can prove that, at the time at which the offence is alleged to have been committed, he or she believed on reasonable grounds that the information, document or statement was true or was not misleading. Clause 358(2) will place a legal burden of proof on the accused by requiring him or her to prove, on the balance of probabilities, the relevant defence. In doing so, this provision may be considered to limit the right to be presumed innocent. The purpose of imposing a legal burden of proof on the accused is to allow him or her to avoid liability for breaching clause 358(1) if he or she is able to prove that, at the time at which the offence is alleged to have been committed, he or she believed that the information was true or correct. In such circumstances, the accused possesses the requisite knowledge to establish the defence, and it is not unduly onerous for him or her to give sufficient evidence to discharge the burden placed upon them. It would be impractical to require the prosecution to bear the burden of proof and therefore it is appropriate that the burden of proof for establishing the defence rests with the accused. The burden of proof is imposed on the accused in respect of establishing a defence. The prosecution first has to establish the relevant elements of the offence. Additionally, the offence is punishable by way of pecuniary penalty. There is no prospect of imprisonment for the accused. The imposition of the burden of proof on the accused is directly related to the purpose of enabling the offence in clause 358(1) to operate as an effective deterrent while also providing a suitable defence. The burden is imposed on the accused to avoid evidentiary problems that may arise, particularly when the relevant facts are within the knowledge of the accused, and which may lead to a loss of convictions. Although an evidential onus would be less restrictive upon the right to be presumed innocent, it would not be as effective because it could be too easily discharged by the accused. The inclusion of a defence with a legal burden on the accused to prove the matter on the balance of probabilities achieves an appropriate balance of all interests. To the extent that clause 358(2) may limit the right to be presumed innocent, that limitation is reasonable and demonstrably justified in a free and democratic society. Clause 204 makes it an offence for a person to fail to comply with a summons to attend the Mental Health Tribunal, without reasonable excuse. In doing so, this provision places an evidential burden on an accused person and may be considered to limit the right to be presumed innocent. The purpose of imposing an evidential burden on an accused person is to allow him or her to avoid liability for breaching clause 204 if they are able to prove that they had a reasonable excuse.
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The evidentiary burden is imposed upon an accused person, as it is the accused person who would have knowledge of the excuse. Clause 204 does not impose a legal burden. This is because after an accused person has adduced evidence to support the existence of an excuse, the prosecution must prove beyond reasonable doubt the absence of the excuse raised. The offence introduced by clause 204 is punishable by way of a pecuniary penalty. There is no prospect of imprisonment for the defendant. Consequently, this provision does not limit the right to the presumption of innocence. Recognition and equality before the law -- section 8 Section 8 is based on the principle that all persons enjoy legal rights and provides that a person has the right to be protected from discrimination based on the attributes set out in the Equal Opportunity Act 2010. These include discrimination on the basis of a disability, which includes mental illness. This right is relevant to the bill because it provides for compulsory treatment of persons with a mental illness. Mental illness is defined in clause 4(1) of the bill as a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. This definition is subject to a list of qualifications in clause 4(2). The purpose of compulsory treatment is a necessary limitation on the right to be protected from discrimination as it ensures that persons suffering from severe mental illness receive necessary treatment. The bill includes safeguards to ensure that the extent of the limitation on the right is kept to the minimum necessary. A summary of these safeguards referred to earlier in this statement are summarised below: the presumption that all people have capacity to make decisions about their assessment and treatment; assessment orders, temporary treatment orders and treatment orders have a fixed maximum duration; the establishment of the mental health complaints commissioner; a patient's right to seek a second psychiatric opinion and apply to the chief psychiatrist for a review of their treatment; the provision and explanation of a statement of rights to a person subject to an order; enabling a person to make an advance statement to record his or her treatment preferences in the event they become unwell; the right of a person to nominate a person to receive information and provide support for the period of time the person is subject to an order; the inclusion of mental health principles in the bill which include the provision for persons under 18 to have their best interests recognised and promoted as a primary consideration; provision for where a person has a guardian, for them to receive information and be consulted about the person's treatment. For the reasons detailed earlier in this statement, there are no less restrictive means reasonably available to provide compulsory treatment to people suffering with severe mental illness. The limitation the bill places on the right to equality are reasonable, proportionate and compatible with the charter act. Additional rights relevant to the bill The following additional rights are also relevant to the bill: Section 9 -- right to life; Section 17 -- protection of families and children; Section 18 -- taking part in public life; Section 19 -- cultural rights; Section 20 -- property rights; Section 25(2)(k) -- protection against self-incrimination. Section 9 provides that a person has the right not to be arbitrarily deprived of life. This right can also impose a positive obligation on the state to protect the lives of persons in its care and to conduct an effective investigation into serious incidents. The measures contained in the bill are compatible with this right, as they enhance the right to life. The bill provides for compulsory treatment in order to protect the life of a person with a severe mental illness. Clause 122 also provides for the chief psychiatrist to conduct an investigation into the provision of mental health services by mental health service providers where the health, safety or wellbeing of a person is or was endangered as a result of those services. Clause 228 also provides for a mental health complaints commissioner to investigate complaints relating to mental health service providers. Where the death of a patient occurs, the Coroner's Act 2008 provides that the death must be investigated. For this reason, the bill is compatible with the positive obligations imposed on public authorities under section 9 of the charter act. Section 17 of the charter act provides that families are the fundamental unit in society and are entitled to be protected by society and the state. It also provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. The right is relevant to the bill as it affects the welfare of children and young people as consumers of mental health services and as members of families who use such services. The bill provides specific safeguards for children and young people, in relation to their treatment and their role as carers or family of persons with mental illness. The mental health principles contained in part 2 expressly provide in clause 11(1)(i) that the best interests of children and young persons receiving mental health services are always a primary consideration. Clause 11(1)(j) also provides that children, young persons and other dependents of persons receiving mental health services should have their needs, wellbeing and safety recognised and protected.
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Clause 11(1)(l) provides that carers, including children, for persons receiving mental health services are to have their role recognised, respected and supported. The principles in clause 68(2) provide that the presumption that a person has capacity to give informed consent to a course of treatment will apply irrespective of the person's age. Clause 57(2) provides treatment orders for children and young persons under the age of 18 years are of shorter duration, with a maximum of three months, although the tribunal will be able to make further orders if the criteria still apply. As previously advised, ECT may only be performed on a young person under 18 years of age with the approval of the tribunal. Where the tribunal determines that a young person has capacity to consent to ECT, the tribunal may only approve ECT if the young person gives informed consent. Where a young person does not have capacity to consent to ECT, the tribunal must decide whether the ECT is least restrictive in all the circumstances. For the purposes of determining 'least restrictive', the tribunal will consider the young person's views and preferences about the ECT, whether the ECT is likely to remedy the mental illness or lessen the ill effects, and a range of other factors described in the legislation. For this reason the measures contained in the bill relating to families and children are compatible with the rights contained in section 17 of the charter act. Section 18 of the charter act provides that a person has the right to participate in public life. Section 19(1) of the charter act provides that persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language. Section 19(2) provides for the distinct cultural rights of Aboriginal persons, including the right to maintain their kinship ties and to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs. These rights are relevant to the bill as, for example, compulsory treatment may interfere with a person's ability to engage in public life, maintain kinship ties or practise their religion. The bill's mental health principles at clause 11(1)(g) provide for the principle of responsiveness to individual needs. It requires appropriate regard be given to a person's culture, language, communication, age, disability, religion, gender and sexuality. Clause 11(1)(h) further provides that the distinct culture and identity of Aboriginal persons must be taken into account. These principles reinforce the cultural rights of people with a particular cultural, religious, racial or linguistic background. Section 20 provides that a person must not be deprived of his or her property other than in accordance with law. The measures contained in the bill are compatible with this right as the bill includes safeguards to ensure interference with a person's property rights is not arbitrary. Clause 356 provides that a thing may only be seized and detained by an authorised person in prescribed circumstances. Where the thing is securely stored by the authorised person all reasonable steps must be taken to return the thing to the person from whom it was seized. Section 25(2)(k) provides that a person in a criminal proceeding has the right not to be compelled to testify against himself or herself or to confess guilt. The bill is compatible with this right as clause 360 provides for a protection against self-incrimination. For this reason it is my view that the limitations on these rights are compatible with the charter act. Hon. Mary Wooldridge, MP Minister for Mental Health