ACT Introduces Mental Health Amendment Bill 2020 To Respond To Statutory Review

Thursday 6 August 2020 @ 2.14 p.m. | Legal Research

The Mental Health Amendment Bill 2020 (ACT) (the Bill) was presented to the ACT Assembly on 30 July 2020 by Shane Rattenbury MLA, the Minister for Mental Health (the Minister). The Bill results from section 271 of the Mental Health Act 2015 (the Act) which requires two reviews, a review of section 85 of the Act which deals with the maximum period of further detention, and a review of the mental health orders provisions contained in the Act dealing with such orders.

Development of the Bill - Background

The ACT Health Directorate (ACTHD) engaged Australian Continual Improvement Group (ACIG) to undertake the community consultation and review in two parts.

First consultation and review: This was limited to the operation of section 85 of the Act which defines the "further period of involuntary detention". This review, according to the Minister's Explanatory Statement, concluded that the "period of further involuntary detention was operating as intended". The report of the review of section 85 of the Act was tabled in the Assembly on 30 July 2019: see ACT Mental Health Act 2015: Review of the Authorised Period of Emergency Detention (ACT Health Directorate) 

Second consultation and review: This review looked into the operation of mental health orders and forensic mental health orders, and commenced on 23 April 2019. Submissions on the general operation of the Act were also received as part of this review. According to the Ministers Explanatory Statement, the report of this consultation concluded that "forensic mental health orders are not operating as intended. . . . As at the time of the review, no forensic orders had been made since the commencement of the Act." There have been two forensic mental health orders made subsequently. The review's report on the orders provisions was tabled in the ACT Assembly in February 2020: see Review of the operation of mental health orders under the ACT Mental Health Act 2015 Sections 58, 66, 101, 102, 108 (ACT Health Directorate) 

The Minister states, in the Explanatory Statement, that the Mental Health Act 2015 Implementation, Evaluation and Monitoring Committee (IEMC) endorsed both review reports. Following from the endorsement, the ACTHD, in conjunction with IEMC,  identified several possible legislative amendments from both the reports and directly from consultation submissions. 

Th Bill seeks to introduce amendments to pressing issues that can be remedied in a short time frame and according to the Minister a range of "remaining possible legislative amendments"  are to be considered in a second installment of work scheduled to be developed and consulted on in late 2020.

Bill Overview

In broad terms the following amendments are included in the Bill:

  • Section 77 of the Act is amended to provide clarity as to the circumstances where a contravention notice is in force but the patient consents to treatment;
  • Section 80 of the Act is amended to include as a criterion for emergency apprehension, that the person has not agreed to treatment and include a review provision for a decision made under this section. Also providing for a "review power" for the ACT Administrative and Civil Tribunal (ACAT);
  • The definition of "forensic patient" in section 127 of the Act is expanded, and any consequential amendments including to sections 56, 134 ,180, 182, 188 and 190 of the Act to include people who are within the ACAT mental health jurisdiction through a criminal justice pathway;
  • A new section would be included in the Act requiring a further review of the mental health order provisions of the Act in five years and also the provisions added or amended by this Bill; and
  • A new provision for the Chief Psychiatrist to issue guidelines.

Once enacted, the Bill (other than clause 7), commences on the day after notification. Clause 7 is to commences no later than 12 February 2021 (or earlier if subject to a Ministerial notification). The delayed commencement is intended to reflect the need for training to be provided to police officers and ambulance paramedics regarding the changes to section 80(1) (criterion for emergency apprehension) of the Act.

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