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Legislative Assembly for the ACT: Week 8 Hansard (3 August) . . Page.. 3300..

MR SMYTH (continuing):

Currently the act makes provision for mental health treatment orders for the involuntary treatment of those with a mental illness and gives powers to the chief psychiatrist to restrain, confine and seclude people on an order.

The act also makes provision for community care orders for those with a mental dysfunction. The community care co-ordinator performs similar functions as the chief psychiatrist in the administration of these orders. However, currently, the act does not allow for community care orders to restrain, confine and seclude people with a mental dysfunction. The bill before us will make provision for these powers.

There is an ethical question here. I think we all acknowledge that it is an unfortunate reality that people suffering from mental illness may on occasion need to be restrained, confined or secluded in order to protect themselves and others from harm, as well as to aid their treatment. In this case we agree that the right to liberty is tempered by the harsh reality that the person is not able to exercise that liberty safely. In our society we rightly believe that people should not be confined against their will unless they have committed a crime. We make an exception for those with a mental illness who pose a threat to themselves or others.

This bill sets before us another class of people whom we would be willing to confine against their will if the bill is passed. This is something we must consider very carefully before we proceed. With confining the mentally ill the argument is made that once treatment occurs there is the likelihood that the person will be released as they will be more able to consent to further treatment. With confining the mentally dysfunctional, we must also accept that the treatment for these people is much less likely to be successful, as treating a dysfunction is often more difficult than treating an illness.

In passing this legislation, we must consider that there is a possibility for confinement of those with a mental dysfunction to last much longer. While the bill makes it clear that a community care order can be only for a maximum of six months and that the Community Advocate must be involved in the management of those on an order, the reality is that we may well be confining for long periods of time people who have committed no crime. The ethical implications in this bill are profound, and weigh heavily upon the Liberal Party.

In the 2003-04 Appropriation Bill (No 2), provision was made for a sum of $650,000 to provide "secure accommodation and appropriate programs that will contribute to an existing client and community safety program". Without going into specifics of this case, it is clear to me that this type of client of Disability ACT is the sort of person who would be confined under this bill. Certainly I acknowledge that the options available under this bill would make for better handling of this type of client, but the ethical principle still remains.

After deep consideration, the opposition will be supporting this bill, as we consider that the public interest outweighs the ethical issue. However, we will closely monitor its application to ensure that the new options available under this bill are not used as an end in themselves, but as part of a wider treatment regime for those with a mental dysfunction.

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