Page 3298 - Week 10 - Friday, 26 August 2005

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To reiterate, the fundamental concept of involuntary treatment is not being changed; just the time frames for the making of the orders. With this in mind, the Liberal opposition will support the bill.

DR FOSKEY (Molonglo) (9.34): Mr Speaker, I believe that there are a number of outstanding issues raised by this bill that warrant its referral to the Standing Committee on Health and Disability for further review. The first issue concerns the involvement of the public advocate.

Under the current provisions of sections 87 and 89 of the Mental Health Act, the public advocate is notified of any application to the Mental Health Tribunal for an involuntary treatment order, is advised when the hearing will occur and is entitled to hear and give evidence. As a matter of course, the public advocate undertakes to visit the person who is the subject of the application and may also speak with family members, carers and other key persons.

The role of the public advocate is to oversight involuntary detention and treatment, to speak to the person if the person is well enough, to discuss the person’s rights and to explain what will happen next, including the processes of the Mental Health Tribunal, hearings, orders and legal representation. The public advocate will try to ascertain the capacity of the individual to participate in decisions regarding treatment, to gauge their understanding of the specific treatments under consideration and to establish whether they have preferences in relation to treatment options. The public advocate is then in a position to support and/or represent the interests of the individual in the application hearing.

The participation of the public advocate in tribunal hearings is a very important safeguard that ensures that the rights of the individual are asserted and have some protection. Whilst it is true that the relevant sections of the act will still apply to applications to administer emergency ECT treatment, there is a practical restraint on the involvement of the public advocate. The public advocate does not operate an after-hours service. There is no official mechanism for notifying the public advocate if an urgent tribunal hearing is to be held on a weekend and no guarantee that they will be available and able to participate in the hearing. The ACT Greens believe that not having the public advocate at the tribunal hearing is unacceptable. We would argue that it is imperative that a mechanism to guarantee the participation of the public advocate be developed prior to the amendments contained in this bill being adopted.

The second issue is that the ACT currently provides no mechanism by which an individual can ensure that their views on emergency treatment options are known to treating doctors and the Mental Health Tribunal if they experience a health crisis and become unable to communicate them at a time when it is deemed that they need emergency treatment. The legal status of advanced health directives or Ulysses agreements that would provide such a mechanism are currently uncertain and are under consideration as part of the review of the Powers of Attorney Act. However, I understand from parliamentary counsel that the next load of amendments to the Powers of Attorney Act do not include something which I note is occurring as part of action 27 of the ACT mental health strategy and action plan, which includes establishing advanced agreements as a routine component of care planning.

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