Falklands : LEGISLATIVE ASSEMBLY FRIDAY, 30 JULY 2010 Part 2 - Legislation
Submitted by Falkland Islands News Network (Juanita Brock) 08.08.2010 (Article Archived on 22.08.2010)
Mr Speaker, Honourable Members, this Bill reflects a proposal from the budget process to reduce the maximum age for entitlement to receive Family Allowance.
LEGISLATIVE ASSEMBLY FRIDAY, 30 JULY 2010
(Part 2 – Legislation)
Transcript and Commentary by J. Brock (FINN)
Family Allowance (Amendment) Bill 2010:
The Hon Financial Secretary, Mr Keith Padgett (KP), introduced the Bill.
Mr Speaker, Honourable Members, this Bill reflects a proposal from the budget process to reduce the maximum age for entitlement to receive Family Allowance. At present family allowance is payable until the mandatory minimum school leaving age but is extended until the 17th birthday for those still in full time education. This means that the allowance is currently paid in respect of all children who must attend school, as well as to some children who voluntarily go on to further education.
The affect of this Bill will limit the payment strictly to the age of 16. The link with the mandatory minimum school leaving age is therefore removed and the allowance will no longer be paid in respect of all children who must attend school.
Secondly it is possible that a 15 year old may leave school at the end of the school year and be employed before his or her 16th birthday. They will remain entitled to family allowance until their birthday, if that is the case.
The proposal was announced on the 24th of June and will have retrospective effect from the 1st of this month.
I beg to move the second reading of the Bill.
The Honourable Mr Tim Thorogood seconded the Bill.
This Bill was dealt with by the short procedure and was read a 3rd time and passed.
Mental Health Bill 2010:
The Hon Chief Executive, Mr Tim Thorogood (TT), introduced the Bill.
Mr Speaker, thank you. This is a large, complicated and very important piece of legislation so of necessity will spend some time explaining it to the House so I suggest Members make themselves comfortable.
Mr Speaker, by way of introduction mental (ill) health has touched the lives of many people here in the Falkland Islands. When mental (ill) health strikes the affects can be devastating for the sufferer and for those closest him or her.
Having a law in place that treats people with dignity and respect is therefore essential. Many people have suffered from mental ill health within the Islands, although relatively few people, fortunately perhaps, have been subject to the now outdated Mental Health Ordinance with an average of only 2 applications per year. However, as the population of the Falkland Islands increases, there is obvious potential for more cases of mental illness. This mental health bill takes account of future needs and provides a legislative guidance for appropriate management of mental health issues in a modern context.
In terms of background, Mr Speaker, Chapter 1 of the Constitution protects fundamental rights and freedoms of the individual; and the Falkland Islands are also subject to the provisions of the European Convention of Human Rights. Many countries have introduced mental health laws in recent years and it is therefore right that our own law is updated both to reflect modern best practice and to reflect the human rights provisions under the Constitution and European Convention.
The current Mental Health Ordinance is outdated in a multitude of ways. Just some examples are:
1. Once detained by law the patient has no right of appeal
2. The detained patient has no right off access to seek legal advice
3. The rights of close relatives are not recognised
4. There is no requirement for professionals likely to be involved, including the Police, to have any specific mental health training
As a result of these problems and many others, work to update our mental health legislation has been underway since 2006; and advice has been taken from the Mental Health Unit in the Ministry of Justice in the UK.
Mr Speaker, the underlying principles are, I think, are important to understand; and I can summarise these as follows:
1. In terms of purpose; decisions under the Bill must be taken with a view to minimising the undesirable affects of mental disorder by maximising the safety and well-being of patients, prompting their recovery and protecting other people from harm.
2. Least restriction, meaning professionals who have taken action to detain the patient under the remit of the Bill must attempt to minimise restrictions they impose on the patient’s liberty.
3. Respect; people taking decisions under the Bill must recognise the diverse needs, values and circumstances of each patient, including their race, religion, culture, gender, age, sexual orientation or any disability. Professionals also must also consider the patient’s views, wishes and feelings so far as they are reasonably ascertainable; and allow these wishes whenever practical and consistent with the purpose of the decision. There must be no unlawful discrimination.
4. Participation; patients must be given the opportunity to be involved as far as is practicable in the planning, developing and reviewing of their own treatment to help ensure that it is delivered in a way that is appropriate and as effective as possible. Also, with the patient’s permission, the involvement of carers, family members and other people who have an interest in the patient’s welfare should be encouraged.
5. Effectiveness, Efficiency and Equity; meaning people taking decisions under the Bill must seek to use the resources available to them in a most effective, efficient and equitable way to meet the needs of patients and achieve the purpose for which the decisions have been taken.
Mr Speaker, the Bill gives effect to these principles as follows Part 2 gives various definitions:
1. Mental disorder is defined in broad terms as any disorder or disability of the mind. As mental illness can be difficult to diagnose, a broad definition allows doctors to act in the interests of the patient’s safety first and then to deal with diagnosis later.
Part 3 of the Bill provides for compulsory detention in Hospital. All approved professionals must ensure that they are detaining the patient on the grounds that they are suffering from a mental disorder of a nature or degree warranting detention and that the patient ought to be detained for their own health and/or safety of others and for those treatments available.
Two approved professionals have to agree that the detention is warranted. And, there will be a multi-disciplinary conference within 72 hours of the detention. Detention may be for up to 6 months in the first instance but patients must be kept under constant review.
Registered nurses, who will be given specific training, will have the new power, under Clause 7 of the Bill to detain patients who are already receiving treatment in hospital for a period of up to 6 hours.
Clauses 11 and 12 establish new rights for independent examination of patients and access to legal advice.
Part 4, Mr Speaker, deals with taking patients to hospital, which may follow a warrant to search for and remove a patient or detention of a patient found in a public place and provides for 6 hours’ detention for the initial examination.
Parts 5 and 6 make new provision for community treatment orders and guardianship orders respectively, as less draconian alternatives for patients who need compulsory treatment but who do not need to be detained in hospital.
The establishment of a mental health tribunal under Part 7 is at the heart of the new system; and provides detained patients the right to seek review of their detention at regular intervals by an independent body. Similar rights of review are provided in relation to community treatment orders and under Part 6 in relation to guardianship orders.
Part 8 makes specific provision for the treatment of patients who come into contact with the Criminal Justice System and are found to be suffering from mental disorder. Again, safeguards by way of right to appeal to the mental health tribunal are included in the provisions.
Part 9 replaces existing provisions in relation to the removal of a patient from the Falkland Islands, in particular, removal can only occur if it’s in accordance with the new Constitutional safeguards in relation to removal from the Falkland Islands of people suffering from mental disorder; that is to say, removal is only possible if there is no effective treatment available in the Islands and removal is necessary in the interests of the person or to protect the public.
Mr Speaker, the Bill is to be supplemented by a detailed code of practice under Clause 78 in Part 11. To ensure consistent best practice actually takes place at every level from day to day. In particular, this code must ensure that doctors and other professionals taking decisions under the Bill recognise the needs of individual patients including their race, religion, culture, gender, age, sexual orientation and any disability. Patients must also be given the opportunity.
Patients must also be given the opportunity to be involved as far as is practicable in the planning, developing and reviewing their own treatment, with staff ensuring that care is appropriate to the individual’s needs. The code must also ensure that doctors and nurses taking action without a patient’s consent keep to a minimum the restrictions they impose on the patient’s liberty.
Section 79 establishes a complaints procedure, ultimately lying complaints to the mental health tribunal.
Part 13 deals with supplementary matters including systems for the recruitment of professionals. The Chief Nursing Officer, the Ward Manager, Community Psychiatric Nurses, qualified Social Workers will be required to complete training on the Mental Health Ordinance to register as approved professionals.
This final part of the Bill also makes certain provisions in relation to relatives of patients, reflecting a theme running through the Bill that nearest relatives are to be involved, where appropriate, in the application of various safeguards for the patient.
In summary, Mr Speaker, this Bill is a natural element of good governance as it takes account of developments of legal and psychiatric professional practice. It acknowledges the importance of minimising the undesirable affects of mental disorder and maximises the safety and well-being of patients and protecting other people from harm. It also minimises implosions on the patient’s liberty and recognises diverse needs. It provides great opportunity for patient’s involvement in care options.
This Bill, Mr Speaker, provides greater transparency, accountability and defined professional roles for those involved. Registered Nurses and qualified Social Workers will have additional powers but they will have additional training to facilitate the application of these powers.
The proposed new Bill aims to safeguard patients and staff, offering clear guidance supported by appropriate legislation.
Finally, Mr Speaker, I should mention that it is currently proposed that the Bill will be brought into force later this year – provisionally October. After further training has been approved for another of health professionals to ensure the legislation is properly supported by approved health professionals.
Mr Speaker, I beg to move the second reading of the Bill.
The Honourable Financial Secretary, Mr Keith Padgett, seconded the Bill.
DS: Mr Speaker, Honourable Members, in rising to support the Mental Health Bill, I would just like to say a few very brief words about it. It’s one of those pieces of legislation that doesn’t grab votes, attention or headlines. But it is, nevertheless a very important piece of legislation which brings us up to date when dealing with what is still very much a taboo subject. The Bill has been around now for many years, has undergone public consultation and comment but it has taken until now to get it placed on this table for approval, so many people may think it’s something new. It isn’t. The process started back in 2006.
Depression and schizophrenia are common enough illnesses in modern society and clinical depression is something which does affect people in the Falkland Islands, especially the older element of society. What this Bill achieves is the protection of these people’s fundamental rights – something which up until now was not the case. This is especially important given that any mental health issue in a small society like ours is always going to be very difficult to discuss.
Until now, as the Chief Executive has explained, a person could be detained with the consent of just one magistrate, the reasons for such detention may not be complete and there would be no right of appeal, nor would there be, any right to legal representation.
Until now a person suffering from a mental disorder could be arrested by the Police. It is fundamentally wrong to treat such people as if they were criminals in our society.
While such detentions as mentioned probably run to maybe one or two a year, it is nevertheless fundamentally wrong to treat people in this way. This Bill gives people those rights so that they are treated fairly.
In short, this Bill allows for safeguards for patients’ rights and also allows for proper treatment whilst at the same time offering the public any protection that may be needed.
Mr Speaker, I very much support it.
EE: Just one sort of question really, with regards to the Honourable Dick Sawle saying that the Police no longer are able to arrest people – I was under the impression that the Police are still able to arrest people in certain aspects within the Mental Health provided it’s for their own health and their own safety. I stand to be corrected.
The Acting Attorney General, Miss Ros Cheek (RC):
Mr Speaker, if it assists, the process under the Mental Health Bill is that where there are issues of personal safety or danger to the public the police can still be involved in the detention of those people but the difference is that those people are affected by mental ill health and need detention and need treatment are no longer treated in a quasi criminal manner if there is no obvious criminal offence they are just detained under the ordinance. The old ordinance treated people in a quasi criminal manner and they were actually arrested as criminals, which is clearly wrong. But to clarify in response to your question, if there is a crime committed, of course, they can still be arrested in relation to those crimes.
EE: Thank you very much.
The Bill then went through all the normal stages and was passed.
Falkland Islands Status (Amendment) Bill 2010:
TT: Mr Speaker, thank you. This will be a little bit shorter.
The main purpose of this Bill, Mr Speaker, is to assist a group of people who were unintentionally disadvantaged when the new Constitution came into effect in January 2009. The new Constitution changed the law in relation to Falkland Islands’ Status in a number of respects:
1. Section 22.5.a provides if a person has Falkland Islands’ Status immediately before the Constitution came into effect, the person had Falkland Islands’ Status under the various provisions of the former constitution.
2. A number of provisions of Section 17 of the former constitution required a person to be domiciled in the Falkland Islands to be able to claim the benefit of that status. So, if a person whose status was dependent on their being domiciled in the Falkland Islands, changed their domicile somewhere other than the Falkland Islands, that person would no longer have the benefit of Falkland Islands’ Status. It could be appropriate to think of the person’s Falkland Islands’ Status being suspended whilst they remained domiciled outside the Falkland Islands. However, their status could be revived under the former constitution when changing the domicile back to the Falkland Islands.
3. Under the new Constitution, a person whose’ Falkland Islands’ Status was suspended immediately before it came into effect in the way I just described, on 1st of January 2009, can no longer revive their status as they could in the past. This was not intentional. When the review of the constitution was undertaken this matter appears simply to have been overlooked.
Therefore, Mr Speaker, this Bill seeks to provide redress to this disadvantaged group of persons. The people in this group will not be given their old status back but they will be able to apply for status under the new, easier and quicker process.
The existing process requires a person to be ordinarily resident in the Falkland Islands for seven years before they qualify to apply for Falkland Islands’ Status under the ordinance.
This Bill will achieve this effect through the following provisions:
1. Clause 4 revises the definition of Qualified Person to enable this disadvantaged group to apply for Falkland Islands’ Status even though they would not satisfy the usual requirement of 7 years’ ordinary residence.
2. A person from a disadvantaged group can apply for Falkland Islands’ Status if they are present and ordinarily resident in the Falkland Islands on the day of the application.
3. Clauses 5 and 6 make provisions for applications received from the disadvantaged group to be effectively fast-tracked.
4. The applications don’t have to be advertised and will be considered at the first available meeting of Executive Council, whereas applications are normally considered only at specified four times a year intervals.
In conclusion, Mr Speaker, the Falkland Islands’ Status Amendment Bill sets out some bare minimum amendments to the Falkland Islands’ Ordinance to address specific issues relating to those people who were unintentionally disadvantaged by the new Constitution.
The Bill does not deal with wider issues relating to status such as proposals to allow the partners of Falkland Islands’ Status holders to apply for status after a shorter period of ordinary residence. Issues such as those will be considered at a later date.
Mr Speaker, I beg to move the second reading of the Bill.
The Honourable Financial Secretary, Mr Keith Padgett, seconded the Bill.
DS: Mr Speaker, I would just like to say that I support this Bill entirely. I think it’s a triumph of common sense over bureaucracy. I am very pleased to see it on the table today.
The Bill was fast tracked and passed.
Part 3 – Motion for Adjournment speeches – will be included in the final part of the transcript.
(100X Transcription Service)
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