Page 219 - Week 01 - Thursday, 9 December 2004
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
therapeutic reasons: to make orders to assist and treat people in need when they could not make reasoned decisions for themselves.
The text and form of the mental health act is clearly about the treatment of mentally impaired people and the protection of their rights. The methods used by the Mental Health Tribunal to hear cases are consistent with therapeutic care, yet inconsistent with a criminal trial. At the moment there is a contradiction in our criminal justice process in terms of testing mental health for culpability and testing mental health for fitness to plead. Culpability is tested by a court—by a judge or jury. Fitness to plead is determined by advice to the court from the Mental Health Tribunal. Just as culpability is tested by the court, I believe fitness to plead also should be tested by the court.
Although there are mechanisms to enable the Mental Health Tribunal to hold open hearings, it is rare for the process to be open. Closed proceedings are the right process for people in need of treatment but the wrong process to determine an important procedural matter in a criminal trial, namely, fitness to plead. The evidence presented before the tribunal is not subject to cross-examination by the prosecution, and the tribunal is not bound by the rules of evidence as a court is bound. The mental health act does not require the prosecution or defence to make representations to the tribunal when an accused person’s mental fitness is tested. Expert witnesses before the tribunal are not subject to cross-examination; nor can the prosecution or defence call witnesses to testify on the issue of an accused person’s fitness to plead.
Without detracting from the need for change, I would like to emphasise that this bill in no way diminishes the important work conducted by the tribunal over the last 10 years. The tribunal has done exactly what the Assembly asked of it, and I commend it for its valuable work.
When I first introduced this bill in the last weeks of the Fifth Assembly, a number of organisations and individuals contacted my office to express some concern about the impact of the bill. The bill lapsed at the conclusion of the Fifth Assembly’s business, but since that time the department has consulted with key community organisations. The department has held frank discussions with the Mental Health Consumers Network, the Mental Health Community Coalition, the Mental Health Provider Network and the ACT Council of Social Service. I believe these discussions have helped my department to understand the concerns held by the community. They have also provided an opportunity to explain how the bill will change the current system.
There were some fears that the bill was the government’s only response to community concerns about mentally unwell people who come to the attention of the criminal justice system. This bill is an important step in starting to fix the relationship between mental health and criminal justice, but I stress that it is only one of many steps we need to take and will be taking over the coming years, in consultation with all interested parties.
Some members of the community were worried that the bill takes the issue of fitness to plead out of the hands of a tribunal that specialises in mental health and into the realm of the court and hence may place people with a mental health problem at a disadvantage. On this point I say that our courts already have to consider and weigh up evidence of mental health conditions when trying a person who presents a case that they were mentally impaired at the time of the offence.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .