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Queensland Advocacy Incorporated

Queensland Advocacy Incorporated (Q A I) is an independent, community-based systems and legal advocacy organisation for people with disability in Queensland, Australia.

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Absent without permission

This factsheet is about what happens if a patient runs away from a Queensland mental health service and stays within Queensland. People who run away interstate will be subject to the corresponding laws of that state, which may or may not allow for their apprehension and return to Queensland.

Absent without permission

Updated: 3/10/19

 

  • 3 Oct, 2019
  • (0) Comments
  • By Rebekah L
  • Latest news, Legal info and guides

Tips for self advocacy at the Mental Health Review Tribunal

This factsheet is to provide guidance for people who will be advocating for themselves at their Mental Health Review Tribunal hearing. It also outlines tips for treatment review meetings and other meetings with your treating team, and where to get more information, advice and/or representation.

Tips for self advocacy at the MHRT (pdf)

  • 3 Oct, 2019
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  • By Rebekah L
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QAI logo

Treatment authorities

A plain English brochure about involuntary treatment for mental illness in Queensland under the Mental Health Act 2016 (Qld)

Treatment authority brochure (pdf)

Last updated 20/6/19

  • 20 Jun, 2019
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  • By Rebekah L
  • Latest news, Legal info and guides
four smiling individuals standing in front of a park holding dialogue boxes above their heads

The Social and Economic Benefits of Improving Mental Health Submission by QAI

Introduction

The focus of this inquiry is on the link between mental health and economic participation, productivity and growth. The Productivity Commission Issues Paper (Issues Paper) notes that mental health is a key driver of economic participation and productivity in Australia, with the potential to impact incomes and living standards as well as social engagement and connectedness. The reduced economic costs associated with improved mental health are stated and it is recognised that improvements in mental health can benefit both individuals and the wider community. The significant occurrence of mental health issues experienced by Australians are noted and it is recognised that, notwithstanding ‘a plethora of past reviews and inquiries into mental health in Australia’, and related positive service delivery and service reforms, there are significant problems with mental health in Australia.

QAI agrees with this starting point – our experience is that there are significant, unaddressed mental health problems in Australia. We also agree that addressing these problems requires holistic reform encompassing innovations not only within the healthcare system, but also in the areas of work, education, justice, housing and social services.

Click here to read the full submission

  • 4 Apr, 2019
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  • By Admin
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control dials

QAI Submission: Recording Mental Health Review Tribunal hearings

The Mental Health Review Tribunal is conducting a project regarding the Electronic Recording of Tribunal hearings. They asked for feedback from patients, support persons, legal representatives, advocates, clinicians, family members and carers, or anyone else about how they feel about audio recording Tribunal hearings. Up until now, the only official record taken of the hearing has been the handwritten notes of the Tribunal members.

QAI made its submission on 11 March 2019.

We submitted that Tribunal hearings should be audio recorded for the following reasons:

  • To ensure an accurate record of proceedings;
  • To assist Tribunal members with the preparation of a statement of reasons and improve their quality. The large number of hearings, the similar nature of successive case details, and reliance on personal memory and handwritten notes can impede accurate recollection of hearings from which to prepare a statement of reasons, sometimes many days or weeks after the hearing has taken place;
  • To assist in clarification of issues, even in the absence of a request for a statement of reasons, for example, discrepancies in limited community treatment conditions or reasons for an adjournment;
  • To enable legal representatives to properly consider prospects of appeal, particularly where clients were not represented at the Tribunal hearing;
  • To improve both Tribunal and legal representative engagement in hearings, who are currently occupied in taking detailed notes of the hearing;
  • To improve client engagement and understanding of the process and their treating team’s reasons for making certain recommendations, which may ultimately improve their recovery;
  • To facilitate natural justice and transparency;
  • To support training and professional development of Tribunal staff.

Our recommendations were that:

QAI’s position is that Mental Health Review Tribunal hearings be audio-recorded.

This change to Tribunal process must be accompanied by education for patients about why proceedings are recorded and how that recording may be accessed and used. This education has to occur long before the hearing and will likely have to happen through clinicians, Independent Patient Rights Advisors, and legal advisors.

Patients (and their legal guardian) should, at least to begin with, have the ability to opt out of having their hearings recorded. While there was a difference of opinion between lawyers whether recording hearings was an access to justice issue which could not be opted out of, ultimately, the balance of opinion was that given the Tribunal was a therapeutic jurisprudence in which sensitive issues were being raised in a closed hearing, the patient should have the right to choose whether their hearing is recorded provided they have capacity to do so. In circumstances where the client lacks capacity, it may be appropriate for the Tribunal to rely on clinical evidence on whether recording hearings would cause serious harm to the health of the person, similar to a confidentiality order. It is noted that as time goes by, and recording hearings becomes more understood, accepted and widespread, this will become less of an issue. The ability to opt out might be limited to an initial 12-24 month roll out period following which recording hearings becomes compulsory.

At the least, recordings should be available to the Tribunal panel, the parties to the hearing, their legal representatives and any formally appointed guardian/attorney. There may be a case for allowing other people to have access to the recording, for example, the treating team or a non-legal representative, subject to the reason for the request and person’s privacy.

Recordings should be provided to the patient (and their legal representative and guardian/attorney) for free or at nominal cost.

There needs to be a clear written process for requesting and obtaining recordings. The process must include: any time limits on requests (we submit any time limits should be generous and based on genuine administrative limitations or burdens, which can be overcome by a legitimate reason for requesting the recording); and timeframes within which the Tribunal must respond to requests.

Audio-recordings should be available in a variety of formats to maximise accessibility and privacy, eg, deaf clients may need a transcription, while some clients might want to just listen to their recording so that they do not have to keep a CD with them.

We would support the provision of oral statements of reasons included as part of the audio recording of the hearing, to take place of written statements of reasons.

  • 11 Mar, 2019
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  • By Rebekah L
  • Latest news, Submissions

Presentations at the ANZAPPL Congress 2018

QAI mental health lawyers Jo Sampford and Niamh Fields presented at the Australian and New Zealand Association of Psychiatrist, Psychology and Law (ANZAPPL) Congress 2018.

Find their presentations below:

  • “Is this to be their fate for the indefinite future?” Judicial  interest in systemic issues in Queensland”, Niamh Fields
  • “Lost and found in translation: Cross-disciplinary conversations between lawyers and doctors”, Jo Sampford

 

  • 29 Nov, 2018
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  • By Rebekah L
  • Presentations

Media release – Violence against people with disabilities in their home forum

Australia’s Disability Discrimination Commissioner headlines QAI’s Violence against people with disabilities in their home Forum

Queensland Advocacy Incorporated (QAI) is thrilled to announce that Australia’s Disability Discrimination Commissioner, Mr Alastair McEwin, will be the keynote speaker at our Violence against people with disabilities in their home forum on Monday 24th September 2018.

Fresh from the release of his report into institutional violence “A Future without Violence: Quality, safeguarding and oversight to prevent and address violence against people with disability in institutional settings”, Mr McEwin will be addressing the forum about this significant social policy issue. “QAI is thrilled to welcome Mr McEwin to Brisbane for this occasion,” QAI Director Michelle O’Flynn said today. “We are so appreciative of the important work the Commissioner does to protect and defend the human rights of people with disability in Australia and we are honoured to have him present the keynote address at our forum.”

This innovative forum will be held at Brisbane City Hall and will include guest speakers, live performances and personal stories from people with lived experience. “We are very excited to present this forum and launch these important resources”, Ms O’Flynn said. “Live theatre and art are such powerful and accessible mediums and we feel very privileged to have the opportunity to work with such talented artists and performers with disability within our local community.”

Mr McEwin’s keynote address will be followed by a wonderful and diverse line-up of speakers, including individuals with lived experience sharing personal stories, former Australian Senator and social campaigner Andrew Bartlett, Caxton Legal Centre’s Ros Williams, Leona Berrie from WWild – Sexual Violence Prevention Service and Dr Natasha Alexander, clinical psychologist in community disability and mental health services from Consentability. A highlight will be the live theatrical performances, interspersed throughout the day, by the talented students of the Access and Equity Program of TAFE Queensland.

We hope and anticipate that the forum and ongoing project will increase general understanding and awareness of violence against people with disability, including the impact it has on a person, the potential perpetrators of violence and the diverse settings and ways in which it can occur. As part of the forum, QAI will also be launching a series of multi-media resources developed in collaboration with artists and actors with disabilities to raise awareness of the types of violence faced by people with disabilities within residential settings.

QAI is an independent, community-based system and individual advocacy organisation for people with disability in Queensland with over 30 years’ experience advocating for systems change, through campaigns directed at attitudinal, law and policy reform.

 

For more information
Queensland Advocacy on 07 3844 4200 (business hours) QAI is an independent, community-based, individual, systemic and legal advocacy organisation for people with disability in Queensland, Australia. Its Mental Health Legal Service provides advice and representation to people receiving involuntary treatment for mental illness across the State.

 

Media enquiries
Michelle O’Flynn, Director, QAI. Contact: 0481381528

  • 17 Sep, 2018
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  • By Admin
  • Latest news, Media releases

Media release – Mental health defence not a free pass

Queensland Advocacy Incorporated (QAI), as a Queensland leader in representing people on involuntary mental health orders, would like to respond to comments in the article entitled ‘Brisbane bus driver’s killer won’t stand trial’ published by the Brisbane Times on 10 August 2018, wherein a member of the legal profession critiqued the laws relating to people with mental illness who are alleged to have committed offences.

We are not aware of the particulars of the matter which was decided before the Mental Health Court and addressed in the article. However, QAI strongly refutes any assertion that reliance on a mental health defence is “an easy way out” in any circumstances.

The current Mental Health Act has been in force since March 2017, following years of community and stakeholder consultation.

The Mental Health Court, made up of a Supreme Court judge who is assisted by two independent psychiatrists, makes decisions about whether a person is entitled to a mental health defence based on the evidence of often numerous psychiatrists who have assessed the defendant. A person who is provided a mental health defence has been found, due to disability or mental illness, to lack the legal capacity necessary to be held accountable for their actions or to properly instruct their lawyers for a fair trial. Both concepts have been long embedded in the Australian criminal legal system. Moreover, a person who successfully relies on a mental health defence will commonly find themselves on a forensic order, which by default requires their detention in a mental health or other facility, and can impact on their liberty indefinitely.

The end result is that a person who satisfies the high threshold of a mental health defence can be subject to more restrictive treatment than a person sentenced through the usual court process.

 

For more information
Queensland Advocacy on 07 3844 4200 (business hours) QAI is an independent, community-based, individual, systemic and legal advocacy organisation for people with disability in Queensland, Australia. Its Mental Health Legal Service provides advice and representation to people receiving involuntary treatment for mental illness across the State.

 

Media enquiries
Rebekah Leong, Principal Solicitor, QAI. Ph: (07) 3844 4200

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  • 13 Aug, 2018
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  • By Rebekah L
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Patient advocacy group calls for sensitivity in reporting on controversial book

21 June 2018
MEDIA RELEASE For Immediate Release

For the first time, victim and patient advocacy groups have come together in response to the impact that the publication and promotion of a controversial book is having on clients they work with. The book, Killer Instinct: Having a Mind for Murder, was written by forensic psychiatrist Dr Donald Grant and published by Melbourne University Publishing on 28 May.

Queensland Advocacy Incorporated (QAI), the State’s leading community legal centre for people living with mental illness, has expressed concern about the impact of the book on victims and offenders alike.

“We are aware of a number of people who have been significantly impacted by this book, including those who were accused of the offences described in this book, and their families and supports,” says Rebekah Leong, Principal Solicitor. “It’s sometimes forgotten that those who are found to be of unsound mind are also victims of the illnesses which caused the offences. Many of our clients experience grief and trauma from the circumstances of these offences, and face a difficult road to recovery”, she said.

“QAI calls on both the press and publishers to show sensitivity to both victims and accused in the media reporting of these issues, in particular to be mindful of the importance of reducing stigma”. Research shows that people with severe mental illness are no more likely to be violent, but in fact are more likely to be victims of violence, than the general population.1

QAI joins in the call by the Queensland Homicide Victim Support Group to encourage anyone identified in this book to make contact with QHVSG or QAI for legal and non-legal advice and assistance.

For more information and support
Queensland Homicide Victim Support Group 1800 774 744 (24 hours)
Queensland Advocacy on 07 3844 4200 (business hours) QAI is an independent, community-based, individual, systemic and legal advocacy organisation for people with disability in Queensland, Australia. Its Mental Health Legal Service provides advice and representation to people receiving involuntary treatment for mental illness across the State.

Media enquiries
Rebekah Leong, Principal Solicitor, QAI. Ph: (07) 3844 4200

Click here for pdf version

__________

1 See Sane Australia – Facts v Myth: mental illness and violence https://www.sane.org/mental-health-and-illness/facts-and-guides/fvm-mental-illness-and-violence

  • 21 Jun, 2018
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  • By Rebekah L
  • Latest news, Media releases
line drawing of gavel

Mental Health Review Tribunal and legal representation

Mental Health Review Tribunal and legal representation

  • Do I need a lawyer at my Mental Health Review Tribunal hearing?
  • Has the MHRT appointed a lawyer for me?
  • What if I do not want a lawyer to represent me?
  • What are the lawyer’s responsibilities?
  • What are my responsibilities to my lawyer?
  • What can I do if I have a MHRT hearing but cannot get a lawyer in time?
  • Can QAI represent me at my next MHRT hearing?
  • More information

This factsheet has been prepared by Queensland Advocacy Incorporated (QAI), an independent, community-based systems and legal advocacy organisation for people with disability in Queensland (qai.org.au).

This publication is for general information only. It must not be relied on as legal advice. You must seek legal advice about your own particular circumstances.

Last updated: 16/11/17

Do I need a lawyer at my Mental Health Review Tribunal hearing?

The role of a lawyer at a Mental Health Review Tribunal (MHRT) hearing is to represent the person’s views, wishes and preferences. If the person cannot express their own views, wishes and preferences, then the lawyer is to represent the person’s best interests.  (section 739(3) Mental Health Act 2016 (Qld))

Instead of a lawyer, a person can be represented at the MHRT by a nominated support person or another person. More information about the role of the nominated support person and the form can be found here:

  • Factsheet: https://www.health.qld.gov.au/__data/assets/pdf_file/0016/445003/role-of-nominated-support-persons.pdf
  • Guide and form for appointing a nominated support person: https://www.health.qld.gov.au/__data/assets/pdf_file/0039/639867/nominated-support-person-form.pdf

A person can also be accompanied to the hearing by 1 member of their support network, or more than 1 person with the permission of the MHRT. The support person is there to provide support only, not representation.  (section 739(2) Mental Health Act 2016 (Qld)) This can include a family member or friend.

A person may be appointed a lawyer to represent them by the MHRT in certain circumstances (see Has the MHRT appointed a lawyer for me? below).

If you have not been appointed a lawyer by the MHRT, it is up to you whether you want to be represented by a lawyer, a nominated support person, another person of your choosing, or no one at all.

Has the MHRT appointed a lawyer for me?

The MHRT must appoint a lawyer, at no cost to you, to represent you if:

  • You are 17 years or under; OR
  • The hearing is about reviewing your fitness for trial; OR
  • The hearing is about an application to treat you with electroconvulsive therapy (ECT); OR
  • The Attorney-General will be represented at your hearing: (section s 740(3) Mental Health Act 2016 (Qld)) .

A representative of the Attorney-General can only attend MHRT hearings which are to review a forensic order, review fitness for trial, or applications to transfer forensic patients in or out of Queensland. The Attorney-General can choose not to attend your MHRT hearing. In those cases, you will not be appointed a lawyer by the MHRT. If a representative of the Attorney-General was at your last MHRT hearing, it is possible they will attend your next MHRT hearing.

If you have been appointed a lawyer, you should have been told this in a letter from the MHRT, usually the same one that told you about the time, date and place of your hearing.

Legal Aid Queensland is responsible for organising the MHRT appointed lawyer. This lawyer might be from Legal Aid Queensland, a private law firm, or a community legal centre. The lawyer is independent of Queensland Health and the Mental Health Review Tribunal and will represent you at your hearing at no cost to you. The lawyer’s role is outlined in What are the lawyer’s responsibilities? below.

The lawyer should contact you as soon as they are appointed to represent you at your hearing.  For forensic order, fitness for trial or transfer hearings, this should be about 14 days before the hearing. For other hearings, it may be 7 days or less.

If you have been notified of the date of your hearing, and have not heard from a lawyer, and you think you should have been appointed a lawyer, it is a good idea to contact the MHRT on 1800 006 478 or 07 3235 9059 to confirm whether or not you have been appointed a lawyer.

What if I do not want a lawyer to represent me?

If you have been appointed a lawyer by the MHRT but you do not want a lawyer, then you need to write to the MHRT to tell them you do not want a lawyer (this is called waiving your right to legal representation). You can do this by sending an email to the MHRT at enquiry@mhrt.qld.gov.au or by writing to them at PO Box 15818, City East Brisbane, Qld 4002. You can also tell the MHRT at your hearing.

You can talk to your appointed lawyer about this process or the Independent Patient Rights Adviser for your mental health service.

The lawyer might still need to attend your hearing until the MHRT accepts the waiver, and releases the lawyer from their obligation to represent you.

What are the lawyer’s responsibilities?

Whether you have organised your own lawyer to represent you, or you have been appointed a lawyer by the MHRT, the lawyer’s role is the same:

  • To the extent that you are able to express your views, wishes and preferences – represent your views, wishes and preferences; and
  • To the extent that you are unable to express your views, wishes and preferences – represent your best interests.

In carrying out their role, the lawyer has a responsibility to:

  • contact you before the hearing and find out your views, wishes and preferences;
  • obtain all the documents that are relevant to your hearing. The MHRT will provide the lawyer with all the documents the MHRT will consider, for example, the clinical report written by the treating psychiatrist, the previous MHRT decision, and material from the Mental Health Court about why a forensic order was made in the first place. Any other documents can only be obtained by the lawyer with your consent;
  • if you have a guardian for legal matters, find out the guardian’s position about your views wishes and preferences or best interests.

All lawyers have an ethical duty to:

  • keep your information confidential, including not speaking to your treating team or family unless you give the lawyer permission to do so;
  • act honestly and fairly and in your best interests;
  • provide you with independent and unbiased legal advice and representation.

The lawyer will keep a file about your matter. This file can be destroyed 7 years after your file has been closed, unless you tell the lawyer not to.

Further information about what you can expect from your lawyer can be found in:

  • The Australian Solicitors Conduct Rules (https://www.lawcouncil.asn.au/files/web-pdf/Aus_Solicitors_Conduct_Rules.pdf)
  • Legal Aid Queensland’s Case management standards – Mental Health Review Tribunal (http://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Case-management-standards/Case-management-standards-mental-health-review-tribunal#toc-a5-1-capacity-2); and
  • Legal Aid Queensland’s Guidelines for lawyers working with clients in the Mental Health Review Tribunal Guideline (http://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Best-practice-guidelines/Guidelines-for-lawyers-working-with-clients-in-the-mental-health-review-tribunal

What are my responsibilities to my lawyer?

You can help your lawyer to get you the best outcome possible by:

  • Being open and honest with your lawyer;
  • Following the lawyer’s instructions as quickly as possible, such as providing further documents;
  • Being contactable, and informing your lawyer of any changes to your contact details;
  • Asking questions if you do not understand something.

In particular, it is important that you are honest. Lawyers have a duty not to mislead, and therefore may need to stop representing you if they know you are being dishonest to the MHRT.

What can I do if I have a MHRT hearing but cannot get a lawyer in time?

If you do not have an MHRT appointed lawyer (See Has the MHRT appointed a lawyer for me? above), and you cannot organise legal representation in time, then you can attend the hearing and request that the hearing be adjourned (delayed) so that you have an opportunity to obtain legal advice and/or representation. You should do this at the start of the hearing.

You will have a strong case for adjournment if you did not get the notice of hearing in time, or did not get the clinical report in time:

  • The Mental Health Act 2016 (Qld) requires that you receive notice of your next MHRT hearing within a certain timeframe. For forensic order reviews and applications to transfer forensic patients, this is at least 14 days. For most other matters, you should have received notice at least 7 days before the hearing.
  • Section 723 of the Mental Health Act 2016 (Qld) requires that in preparation for a review hearing, the treating psychiatrist prepare a clinical report setting out their recommendations. This report must be provided to you at least 7 days before the hearing. Under section 738, if the hearing is about electroconvulsive therapy, then the application and clinical report should be provided to you at least 3 days before the hearing.

Otherwise, you should be prepared to explain to the MHRT what attempts you have made to obtain legal advice or representation, and why they were unsuccessful.

Can QAI represent me at my next MHRT hearing?

If you have been appointed, or should be appointed, a lawyer by the MHRT to represent you at your next hearing (see Has the MHRT appointed a lawyer for me? above), then you should wait for that lawyer to contact you. Legal Aid Queensland does its best to appoint lawyers who are local to you and are best placed to meet you face to face and be with you in person at your MHRT hearing.

If you have not been appointed a lawyer, then you can contact QAI on (07) 3844 4200 and be booked in for our next available advice appointment.  Sometimes the next advice appointment is 1 to 2 weeks away.  If your matter is urgent, and QAI cannot give you legal advice before your hearing, you may be able to request the MHRT for an adjournment. See What can I do if I have a MHRT hearing but cannot get a lawyer in time? above.

Before your advice appointment, it is helpful if you are able to:

  • Find out the approximate date of your next MHRT hearing. If you are not sure, then you can contact the MHRT on 1800 006 478 or 07 3235 9059 who can tell you over the phone.
  • Give QAI a copy of your documents, including your clinical report, by email to legalrep@qai.org.au or by post to QAI, Level 2 South Central, 43 Peel St, South Brisbane Qld 4101. If you do not have a copy of the documents, you can ask your treating team or Independent Patient Rights Adviser to send us a copy. Alternatively, you can complete a Client Authority and provide this to QAI and we can obtain a copy of your documents from the MHRT on your behalf.

At the advice appointment, the lawyer will be able to give you preliminary advice and assess whether we can represent you at your next MHRT hearing, having regard to:

  • Our availability to represent you on the day and time of your hearing;
  • Whether there is adequate time and capacity for the lawyer to prepare for your hearing;
  • Your financial situation and whether you can afford a private lawyer to represent you;
  • Your ability to self advocate, or have supports who can advocate for you
  • The merits of your matter, and the benefit of having a lawyer;
  • Other relevant matters, such as whether you are living in the community, whether you are experiencing multiple disadvantage, or when you have been on an order for a lengthy period of time and have never had legal representation in relation to review of that order.

If QAI is able to represent you, then you will be asked to complete and sign a client-lawyer agreement and a client authority which outlines some of the responsibilities and expectations set out under What are the lawyer’s responsibilities? and What are my responsibilities to my lawyer? above.

More information

Queensland Health – https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-staff/mental-health/act/topics/review-tribunal

Mental Health Review Tribunal – https://www.mhrt.qld.gov.au/ 

Legal Aid Queensland – http://www.legalaid.qld.gov.au/Find-legal-information/Personal-rights-and-safety/Health-and-medical/Mental-health-and-wellbeing#toc-do-i-need-legal-advice–2 

Mental Health Act 2016 (Qld) – https://www.legislation.qld.gov.au/view/html/inforce/current/act-2016-005

  • 9 Nov, 2017
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