Notification of Forthcoming Gazettal -Department of Health Supervision Directions Pursuant to Section 43ZA Criminal Code Amendments (Mental Impairment and Unfitness for Trial) Act
The Law Society Northern Territory (the Society) has a number of concerns about the Supervision Directions as proposed and has raised the following with initial concerns with the Deoartment of Health.
The Society would like to note that the authorisation of the use of force against persons is an issue of some gravity. The Society and surely the community at large would seek to ensure that there were adequate checks and balances in place to ensure the safety of the community and the individuals that may become the subject of such orders. The gazettal of the supervision directions allows the community to scrutinize the circumstances that govern that use of force.
At the outset we trust that the SD has been forwarded to the entities named in the document particularly the Health & Community Services Complaints Commission, the Police and the Community Visitor for comment. The Society would like to suggest consulting with these entities and additionally with the Ombudsman, may assist in striking an adequate balance in the oversight of the authorised use of force.
The issues of concern the Society has identified can be summarized as:
- Aspects of the SD appear to be beyond the power conferred in s43ZA of the Criminal Code in other words they appear to be ultra vires
- Confidentiality is not addressed
- Intersection with Assault under the Criminal Code
- Inadequate oversight and lack of transparency
The Society is concerned that the SD purports to grant powers or authorize conduct by the Approved Health Services Security Officers which are beyond the scope of the conduct set out in the criminal code. Examples
The SD at Part 2 clause 5 states that
?such persons have the powers and functions given the authorised persons by the Criminal Code and these directions ? that is, they can use reasonable force and assistance to enforce a supervision order?.
The Society is concerned that it should be abundantly clear that the SD cannot give ?powers? nor authorize the use of force by Approved Health Services Security Officers other than as provided for in the Criminal Code.
In particular clause 8.1 b. purports to authorises the use of reasonable force and assistance to prevent a person from persistently destroying property. The NTCCA 43ZA (2A) refers to the use of force to enforce the order and to prevent harm to the subject or others. Thus clause 8.1(b) would appear to be ultra vires.
We note that the SD is silent on any obligation of confidentiality. Whilst such obligations may be contained in a contract of employment and or contract for services.
It is necessary to give clear definitions to avoid any misunderstanding or misuse.
The Society strongly objects to the SD purporting to apply Departmental policies or procedures which are not themselves publicly available.
Qualification and training of Approved Health Services Security Officer
Part 2, clause 7
The object of the SD as prescribed by the Criminal Codeis to detail the qualifications of authorised persons. In the Society?s view the qualifications stipulated are inadequate. In particular the Society notes the reference in clause 7.2 to "skills" rather than training or qualifications in managing conflict, appropriate restraint techniques is in an inadequate requirement.
Whilst the Society can appreciate the difficulty in specifying specific training or qualifications and would recommend "skills and or training." It would be anticipated that the CEO could record any training undertaken pursuant to 7.4.
In the event that applicants for the role are not able to demonstrate skills or training in these particular aspects then the Society would strongly submit that the onus would be upon the Department to source and deliver appropriate training, possibly as part of the induction process.
Additionally, clause 9.4 appears to look at taking punitive action against the individual but does not oblige the Department to explore systemic issues (such as inadequate training).
When has a criminal act occurred?
9.4 Looks at investigating the use of force and requires criminal activity to be reported to police by Senior Managers. In the view of the Society the nexus between force authorised by virtue of s43ZA of the Criminal Code and assault per ss187-188 should be clear.
Ultimately if the force was not compliant with the SD then it is prima facie an assault. Whilst this may result in over reporting it is better for the police to become involved to determine the question.
Importantly question to be determined by police ultimately turns on the SD. This is a further cause for concern regarding the SD purporting to apply policies or procedures which are not themselves gazetted. This concern is heightened given that there is no requirement that such policies be publicly available and are subject to change.
Preservation of evidence
The Society would expect similar directions to preserve evidence would apply to anyone reporting a matter to police not simply the Community Visitor.
We would also like to refer to section 116 of the Mental Health and Related Services Act (MHaRSA) which deals with detection of offences.
Differences between the powers and functions of the Community Visitor as established under clauses 11? 14 of the SD and under Part 14 MHaRSA
The Society applauds the intent to create independent oversight in the guise of a community visitor. In the establishment of a community visitor under the SD the Society would expect that the functions and powers would closely align with the regime under the MHaRSA except where variation from that model was unavoidable. In performing an oversight role the community visitor needs to have sufficient powers to fulfill that function otherwise the oversight is illusory. The Society is concerned that there are substantial differences between the community visitor established under the SD and the MHaRSA but there is no apparent rationale for that variation other than the convenience of the Department.
In the view of the Society the community visitor established by the SD does not have any or any adequate powers to fulfill an oversight role.
The Society provides the following examples:
The community visitor under the SD does not have the powers to inspect documents or premises. In particular the community visitor may only inspect documents at the invitation of the Department.
Contrast this with the MHaRSA which states ?A community visitor may, at any time without notice, enter an approved treatment facility or premises occupied by an approved treatment agency? (s106.1) (emphasis added).
Under the SD the community visitor does not have powers of entry or inspection and may only ?seek to? enter premises, communicate, inspect or receive complaints etc.
Contrast this with MHaRSAs107 where a community visitor may, when in a facility or on the premises, inspect any part of the facility or the premises; visit persons who are receiving treatment or care; inspect documents or medical records relating to persons; inspect any records or registers required to be kept by or under this Act.
Additionally under the MHaRSA ?The person-in-charge and each employee of an approved treatment facility must give reasonable assistance and cooperation? to a community visitor (s113.1).