Committee urges govt to ‘properly fund’ compulsory mental health regime

Neil Sands

New mental health legislation risks creating “unfair and unkind” expectations if it is implemented without proper funding, thus repeating the mistakes of the past, The Law Association’s Mental Health and Disability Law Committee has warned.

In a submission to Parliament, the committee backed the aims of the Mental Health Bill which will modernise the regime for subjecting a person to mental health care without their consent.

The bill will replace the Mental Health (Assessment and Treatment) Act 1992.

While broadly supporting the bill’s goals, including the introduction of measures to minimise compulsory or coercive treatment, the committee said there was concern about the timing of the new legislation.

“If the new provisions are not funded properly, especially those relating to detailed capacity assessments, it will raise service users’ expectations of a better systemic response to an individual’s mental health issues,” it said.

“This is unfair and unkind if the resources are not in place. This was a major flaw in the Act, where community care was lauded as a humane advance on institutionalisation but was not fully delivered due to inadequate resources.”

The committee made a number of recommendations to clarify aspects of the bill and strengthen its wording, including the replacement of “should” with “must” in the three compulsory care principles it outlines.

For example, this means the principle relating to therapeutic purpose would read:

“Compulsory care must be used only—

• to protect, promote, and improve a person’s mental health; and
• if suitable care is available to protect, promote, and improve a person’s mental health”.

The committee also questioned what might happen when “suitable care” was unavailable, saying details were needed about the efforts that would be made to help a person in such circumstances.

“The committee is of the view that once the mental health service becomes aware of the person’s ill-health, it has a duty to pursue support services for the person,” it said. “In short, if a person otherwise qualifies for compulsory care, the person should not be abandoned because such services are not ‘available.”

The bill received provisional support from all parties during its first reading in the House in October last year.

It was then referred to Parliament’s Health Select Committee, which is due to report back in late April.