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(This is an uncorrected proof of the daily report. It is made available under the condition that it
is reconised as such.)
Bill presented and read a first time.
Mr BURKE (Health, Family and Children's Services): Madam Speaker, I move that the bill be now
read a second time.
Madam Speaker, mental health acts are a product of their time. They reflect the prevailing
attitudes towards mental illness, the limits of psychiatric technologies and knowledge, and the
conventional philosophical approaches to the treatment of the mentally ill at the time the legislation is
enacted. The Mental Health Act 1980 no longer reflects contemporary community or
professional attitudes to the involuntary admission and treatment of people with a mental
illness. Present day community expectations are that an individual's human and civil rights be
protected through an integrated system of external, independent review, consumer education and
easily accessible appeal and complaint mechanisms.
The current act was designed for a mental health system focused upon institutional care rather
than the preservation and enhancement of personal autonomy and new treatment approaches
which place the community at the centre of the mental health care system. Furthermore, it can
no longer provide a person, suffering from a mental illness, with the appropriate safeguards,
checks and balances now expected by the community.
New legislation is required to facilitate the reform process set out in the National Mental
Health Strategy, and to meet the requirements and standards specified within the United
Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental
Health Care, or the Australian Health Ministers' Mental Health Statement of Rights and
Responsibilities. The Northern Territory endorsed the National Mental Health Strategy and
committee itself, along with other Australian jurisdictions, to amend all mental health legislation by 30
June 1998, so that it is consistent with the 2 documents I have just mentioned.
This bill fulfils the commitment. Its development has also been influenced by: the National
Inquiry into the Human Rights of People with Mental Illness (the Burdekin report); and the
development of model mental health legislation consistent with the UN Principles and
auspiced by the Australian Health Ministers' Advisory Council's National Working Group
on Mental Health Policy. The views of consumers, carers, members of the public and
mental health services staff have been sought through advisory committees and a series of public
and internal meetings in Darwin and Alice Springs.
Preliminary drafts of the bill have been reviewed by an advisory
group consisting of the
Attorney-General's Department, Correctional Services, members of the magistracy, the Office of
the Ombudsman, the Northern Territory Association for Mental Health, the Association of
the Relatives and Friends of the Mentally Ill, the NT police, St John Ambulance, the Northern
Australian Aboriginal Legal Aid Service, the Northern Territory Legal Aid Commission, the Northern
Territory Mental Health Advisory Group, and representatives
of
Territory Health
Services.
A Territory-wide advisory group of Mental Health Services staff has also reviewed
preliminary drafts of the bill.
The views and feedback from these forums have been integral to the development of the legislation
and consequently the legislation reflects: the particular needs of Territorians whether they live in
an urban centre or in a remote or rural location; the realities of delivering cost-effective and
culturally appropriate mental health services in a variety of vastly different locations; and the
challenges inherent in the provision of mental health services to the Territory's culturally rich,
diverse and cosmopolitan population.
I would like to take this opportunity to publicly thank all of the members of the advisory groups for their
work. This is one of the most significant undertakings in the continued development of an
appropriate and effective mental health service for all Territorians. Mental health legislation
provides a framework within which government can ensure, on the one hand, that it is able to fulfil its
responsibility to care for people with a mental illness in a just and equitable manner without
infringing upon their rights before the law and, on the other, protect the community from the
dangerous behaviour of some individuals.
People suffering from some forms of mental illness may, at times, lose the capacity to make
appropriate decisions. On occasion, this loss is accompanied by a lack of insight. This sometimes
results in an inability or refusal to seek help even when a person may be a danger to themselves or
other people. Even though the vast majority of those suffering from a mental illness are not
dangerous, the reality is that disturbed behaviour does exist and is sometimes associated with
an episode of mental illness. Such occurrences are usually short-term and disappear once the
underlying mental illness is treated. It is an obligation on the part of government to ensure that,
where people are unable to make a decision about their own mental health and welfare, and are a
danger to themselves or their community, the state will intervene and provide the appropriate
assessment, treatment and care.
Unfortunately, at times, it may be necessary to intervene without the consent of the person
involved. Where it is in the best interests of the person and the wider community, the government
is vested with the responsibility of depriving individuals of their liberty, and treating them against
their will. This responsibility is exercised through mental health legislation which ensures that
this power is used appropriately by: rigorously specifying the circumstances under which
a person may be involuntarily detained and treated; ensuring that, where a person is
involuntarily detained, treatment is undertaken in the shortest period possible and that the
person is released only when he/she no longer presents a danger to him/herself, or to other people;
providing checks and balances which preserve the rights of the individual and protect the community; and
controlling the use of certain forms of treatment.
The Mental Health and Related Services Bill seeks to give effect to these responsibilities through its
objectives, which are as follows:
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to provide for the care, treatment and protection
of people with mental illness while at the same
time protecting their civil rights;
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to establish provisions for the care, treatment and
protection of people with mental illness that are
consistent with the United Nations' Principles and
the Australian Health Ministers' mental health
statement;
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to establish provisions for the review of the
voluntary and involuntary admission of people into
mental health facilities, and the treatment
provided to people within mental health facilities;
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to establish provisions for obtaining informed
consent and the authorisation of treatment;
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to establish provisions for emergency detention and
treatment;
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to provide
treatment;
regulation of specific
forms
of
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to establish provisions for the administration of
involuntary treatment in the community;
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to mainstream and integrate, as far as possible,
provision for the administration and review of
admission, hospitalisation and treatment
of
prisoners;
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to establish the right of people receiving or
seeking psychiatric care or treatment to be given
oral and written explanations of their legal rights
and entitlements under the act in a form and
language which they understand;
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to establish a Mental Health Review Tribunal to
conduct reviews and to hear appeals relating to
people subject to the act;
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to establish a right for people who are subject to
the
act,
their
relatives,
friends
and
representatives, and any other person with a
genuine interest in people who are subject to the
legislation, to make a complaint;
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to provide for approved treatment facilities and
approved treatment agencies to establish accessible
internal complaint procedures;
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to affirm the right of people with mental illness
to complain to independent complaint bodies
established by or under other legislation;
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to provide a principal community visitor, community
visitors and community visitor panels, with
inquiry,
complaints, investigation, visiting,
inspection, advocacy and reporting powers and
functions;
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to provide for the registration of interstate
mental health orders; and
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to provide a procedure for the approval of
treatment facilities and mental health treatment
agencies.
At this point, it would be appropriate to address the issue of antisocial behaviour in the
community and its relation to mental illness and legislation. Unfortunately, there are still those
in our community who unthinkingly and unintentionally perpetuate the myths that people
with a mental illness are unpredictable, violent and more
dangerous than other
members of the community. They also wrongly assert that all forms of antisocial
behaviour are intrinsically linked to mental illness. Let me emphasise that the reality is that the
vast majority of people with a mental
illness are no more dangerous than other members of the community. Although from time to time
people with a mental illness will commit antisocial acts, the overwhelming majority of such incidents are
carried out by individuals who do not have a mental illness. Where mentally-ill people do commit
such acts, the behaviour will usually disappear once the person receives the appropriate treatment.
Mental illness can be, and is, successfully treated and managed in the community. People
with a mental illness can and do live a normal life. In cases where there is a need for hospitalisation,
the Territory has appropriate and effective inpatient facilities and resources where people can be
treated for a short time before returning to the community. The myth that all antisocial and violent
behaviour prevalent in our community can be attributed to mental illness is based not on hard fact but
on misunderstanding. I am sorry to say that, in the last 18 months, some sections of the community
have unduly emphasised a number of incidents where individuals have committed violent and
senseless crimes. It was implied that the perpetrators suffered from a mental illness.
Within the context of the Northern Territory Criminal Code, the term `insanity' is used to denote a
situation where a person at the time of committing a criminal act is `in such a state of abnormality of
mind as to deprive him of capacity to understand what he was doing or of capacity to control his
actions or of capacity to know that he ought not do the act, make the omission or cause the event'.
Abnormality of mind is in turn defined as `a condition of arrested or retarded development of
mind or inherent causes or induced by disease, illness or injury'. Some sections of the
community have mistakenly interpreted the term `insanity' to mean `mentally ill' rather than
`abnormality of mind'. It is tempting, where individuals have committed violent and senseless crimes,
to simply dismiss them as being insane. Unfortunately, in the process, we demonise the 1 in 5
Australians who suffer from a mental illness. It takes no wisdom nor any courage to
perpetuate myths based on ignorance.
It is a myth that all antisocial and violent behaviour in our community can be attributed to mental
illness. It is also a myth that those with a mental illness are unpredictable, violent and more
dangerous than other people. If these myths are not actively challenged, the mentally ill will
suffer great injustice. I call upon all honourable members to support the work of this
government to remove the stigma attached to mental illness. We need to show leadership in
correcting some of the myths about the violence and the antisocial behaviour which prevail in
our community.
In order to respond appropriately as a community to the needs of people who exhibit
antisocial behaviours, it is important that we make a clear distinction between those
individuals who act inappropriately as a consequence of a mental illness or an intellectual
disability, and those who display antisocial or criminal behaviour, whilst under the influence of
alcohol and/or other drugs, or as a result of petrol-sniffing. The latter group's behaviour is a
criminal matter and a number of appropriate sentencing options are available to the courts.
Often, once the substance abuse ceases, the antisocial or criminal behaviour also declines.
Territory Health Services, through its alcohol and other drugs program, provides for the funding of
strategies which address substance abuse.
I turn now to individuals who exhibit antisocial behaviour because of an intellectual
disability or brain damage.
It should be recognised that intellectual impairment is often
the result of damage to the frontal lobes of the brain which are responsible for inhibiting behaviour,
self-control and impulse control. This damage is frequently caused by motor vehicle accidents,
petrol-sniffing, substance abuse and physical illnesses. The effects are often irreversible. In
other words these afflictions can often not be treated in the normal sense. There is often no
cure.
In these circumstances, there is frequently an expectation by some members of the community that
people with brain damage or an intellectual disability should be involuntarily detained and treated under
the provisions of mental health legislation simply because their behaviour does not equate with what
the community perceives to be appropriate or acceptable. This view is misguided and better
suited to the realities and sensitivities of a century ago when mental health facilities were
asylums. It was a common occurrence for someone displaying any form of abhorrent
behaviour to be incarcerated for years in these asylums without any right of appeal or
remonstrance. Over the past 50 years, the community in all Australian jurisdictions has rejected this
view and system of care. It was wrong then and it is wrong now.
The United Nations Principles, which the Territory has endorsed through its commitment to the
National Mental Health Strategy, are unequivocal in their focus. They clearly hold that mental illness
shall never be determined on the basis of political, economic or social status, nor on membership of a
cultural, racial or religious group. Most importantly, mental illness must not be determined on any
reason not directly relevant to mental health status.
In the Northern Territory, an individual can only be treated under the Mental Health Act if
he/she appears, in the first instance, to be suffering from a mental illness. If, subsequently, a
diagnosis of mental illness is established, he/she can then be cared for, controlled and treated under the
act. If a person is not suffering from a mental illness, nothing can be done under the present
legislation. However, in the development of the Mental Health and Related Services Bill, provision
has been made for the temporary care of individuals who do not appear to be suffering from a
mental illness but who, nevertheless, are acting in an irrational manner, thus placing themselves or
others at risk.
Under these new legislative arrangements, provisions allow such individuals to be temporarily
taken into custody for assessment when their behaviours are so irrational that they may be a
risk to themselves, or to other people. Provision exists, after an initial period of 3 days, for a person to
be detained for an additional 7 days if there is a risk of that person causing harm, or a likelihood that
he/she will suffer serious mental or physical deterioration. Any further detention must be
reviewed by the Mental Health Review Tribunal, an independent body which will be established
under the legislation. The tribunal will be empowered to extend this detention, if necessary, for
further periods of up to 14 days. This provision will allow health professionals adequate time
to assess and, where possible, treat the person.
Our legislative systems quite rightly protect people with organic brain damage from
involuntary treatment or incarceration unless they have committed offences or there is a
likelihood of an individual causing harm to others. However, the prediction of dangerousness
is an exceptionally difficult task. Scientific and professional literature on the subject indicates that
the most up-to-date clinical instruments and assessment techniques cannot achieve more than a
50% chance of reliability in predicting violent or dangerous behaviour.
The question of how to deal with individuals who, because of mental impairment or an
intellectual disability, exhibit antisocial and violent behaviours is not unique to the Territory.
It is a question which confronts every jurisdiction in Australia. New Zealand, Canada, the
United Kingdom and the United States also face identical problems. So far no one has found the
magic answer. Such a complex problem which encompasses a myriad of ethical, legal and
technical issues will not lend itself easily to a simple solution. The provisions proposed by this
bill achieve a workable balance between the community's needs and right to be protected, and the
fundamental right of individuals to their freedom.
At the end of the day, mental health legislation must balance the rights of the individuals and
their carers, with the rights of the community to safety. It must also achieve workable compromises
between the agendas put forward by those groups in the community who will use the act, be affected
by it, or be involved in its administration. I believe this legislation achieves this balance.
However, before the bill is debated next year, copies will be distributed to all interested
parties by Territory Health Services. Even though, as I said at the beginning, there has been
extensive input from the community and interested parties in the development of this legislation,
my department will undertake public consultation to ensure that the views of Territorians have
been fully taken into account.
I commend the bill to the Assembly.
Debate adjourned.