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Legislative Assembly for the ACT: 1999 Week 6 Hansard (22 June) . . Page.. 1626 ..
MR HUMPHRIES (continuing):
seen the Government's decision to move away from the original draft amendments we put forward last year as something of a victory, as something of a win for the position of those people with mental dysfunction. Mr Wood obviously takes that view.
I want to make the point very clearly that what the Government was attempting to achieve in the circumstances of the original legislation was a way of dealing with people whom health professionals would not diagnose as people with a mental illness. I define them for the purposes of this debate as people who are mentally dysfunctional without being mentally ill. Those with a mental illness, I think, are relatively well catered for both by legislation and by the services in the ACT.
Those with a mental dysfunction are the ones who have missed out in this process in the past. One of the effects of the withdrawal of the Government from the power to make protection orders in respect of people who are mentally dysfunctional is that those people once again will be in something of a no-man's-land. Let me make it absolutely crystal clear in this debate, for the benefit particularly of Mr Wood and Ms Tucker, that people with a mental dysfunction have in the past ended up in our remand centre and in gaols because of the inadequacy of our law. The effect of the Government withdrawing from its original amendments of last year is that those people will continue to end up in those sorts of institutions.
We do not have a mechanism for picking out those people and giving them treatment which acknowledges the extent of their impact on the community and on themselves. Under the legislation which is now before the house - it is an acknowledgment of the weakness of that proposal - we do not have a means of dealing with those sorts of people if they are not diagnosable as being mentally ill. We are all aware of the problem of people being mentally dysfunctional but not being diagnosable by those who are professionals in this area as being people with a mental illness. Mentally dysfunctional people are still left out in the cold in the present circumstances. They are still people who, in some respects, will be lucky if they fall within the definition of mental illness in the opinion of an appropriate professional but who more often than not will not be defined as mentally ill but simply as mentally dysfunctional and will end up behind bars.
The ACT Government tried to avoid that state of affairs by creating a third category of person that is neither, if you like, sane nor insane but with a series of problems which I have characterised with this broad umbrella of "mental dysfunction". We tried to make special provision for those people in our original legislation. Clearly, to make provision for them was difficult, because they were not mentally ill as diagnosed by professionals and therefore could not be treated under compulsory orders as people who were mentally ill. On one argument at least, they were also not sufficiently capable of determining their own destiny and their own future such as to allow the courts to assume that they have the intent necessary to commit certain crimes, which is very often the way in which they come to the attention of authorities.
These mentally dysfunctional people will not have the capacity to seek the protection of some expanded notion of protection orders under the legislation as it now stands, and they will not have the capacity to be treated as mentally ill, because they are not diagnosed as mentally ill. If they come to the attention of the courts, as is very often the
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