MENTAL HEALTH (INPATIENT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 March 2012.)

Mr HAMILTON-SMITH (Waite) (17:32): I rise to indicate that the opposition will be supporting the bill and we thank the minister for bringing it before the house. I want to address some of the issues that the bill deals with and to put some propositions to the minister to seek his feedback during the committee stage, because we would like to briefly go into committee.

We are aware that the bill amends the Mental Health Act 2009 with a view to changing the terminology from 'detention' to 'involuntary inpatient'. The minister has explained to the house that he is seeking to make a subtle but important amendment to the original act and the opposition both understands and appreciates the object of the bill. I thank the minister for the briefing that he arranged in my electorate office on 20 March. I was pleased to speak with the department's chief psychiatrist, Dr Panayiotis Tyllis, and one of the minister's adviser's, Ms Anita Ewing.

As I mentioned, we are aware that the aim of the bill is to destigmatise mental illness by more appropriately and accurately reflecting the way in which contemporary involuntary mental health treatment is delivered. We note that the minister seeks to remove the negative connotation of the term 'detention' which, as he explained, is often associated with criminality and used in a punitive sense.

The government argues that clinicians and mental health experts generally support this initiative and I have separately consulted with a number of them and I agree with him that generally the objects are agreed with. In particular, we spoke to the Mental Health Coalition, the Royal Australian and New Zealand College of Psychiatrists, and others who generally concurred with the direction of the bill.

On the subject of detainees, we note that the change in language will also mean that we are, in effect, redefining patients who were previously detainees under the Mental Health Act as 'involuntary inpatients'. We know what we are trying to achieve in that regard but, from a public viewpoint, and for those who may not be well informed in the processes and procedures of caring for people with mental illnesses, 'detainee' is a clearly understandable term: that person is being detained. It may not be as apparent to members of the public—whether it be a family member, or a member of the public at large—that an involuntary inpatient is, in fact, being detained.

Why would that be important? It would be important should an involuntary inpatient escape or fail to comply with conditions of a temporary release and, in that period, either injure themselves or commit an offence while on an approved leave of absence during which he or she is free to conduct themselves in such a way. In that regard, there were discussions on our side of the house as to whether this arrangement was, in effect, less transparent than the previous arrangement.

I make the point that we understand the clinical reasons behind why we are making the change, but we are looking, in the broader sense, at what might be unintended consequences. Under the previous arrangement where the term was 'detainee', it was very clear to everyone that the person was being detained; under the new arrangements, it is not quite as clear to the general public. We do not see that as a reason to get in the way of the measure, but I just bring it to the house's attention because there is an element of public interest in this measure that we lawmakers need to safeguard.

For example, should an involuntary inpatient, under the new term, injure themselves or others, the reporting of that incident—whether by the media, the public or by professionals—might take a slightly different form. In that regard, I was particularly interested in the components of the bill that dealt with amendment No. 5, particularly the deletion and complete substitution of section 34 of the act regarding the confinements and controls of involuntary inpatients, in particular, the issue of leave of absence for involuntary inpatients where, as I have said, there may be safety implications.

There have been discussions on our side of the house about past cases which have received some media attention from time to time. This issue has bobbed up on radio talkback and in the general press, specifically in relation to events that might have occurred during inpatients' leave of absence. I make reference to two cases that I looked at in considering this bill: one, a finding of the Coroner on 18 January and 22 December 2011, dealing with Simon Christopher Hynes; and another matter that was dealt with by the Coroner on 2 December 2011 in relation to Mark Douglas Springgay.

Both of those gentlemen committed suicide, were known to the department, and were receiving care in one form or another. I note, in particular, the Coroner's observation in regard to Mr Hynes, where he pointed out:

Between 12 June 2007 and 27 July 2007, when Mr Hynes was reported as a missing person, there was no attempt made by mental health authorities to locate Mr Hynes despite the fact that he was on a community treatment order, that he was obliged to receive fortnightly administrations of his antipsychotic medication and, if not deceased already, that he was unlawfully at large when his leave of absence from MHA detention expired on 15 July 2007.

I only mention these cases because I think it is worth remembering that involuntary inpatients, as they will now be termed, deserve and expect our care. Their families, clearly, are very focused on that care. They are, at times, a risk to themselves or to others, otherwise they would not be involuntarily detained, or now involuntary inpatients. We felt, on this side of the house, that there was a need to remember that these leaves of absence need to be very closely monitored and carefully managed because they have safety implications.

Where a criminal offence has been committed, our understanding is that the patient would come under the Criminal Law Consolidation Act and may well be residing at James Nash House, but in other cases patients might be treated at Glenside or in another public hospital and would come under the ambit of this act that we are amending today with this bill. We understand that the overwhelming number of mental health cases do not involve involuntary confinement, but where they do it is because the patient is deemed to be a risk to themselves and others.

The government and clinicians see a need for leaves of absence to be granted in certain circumstances to involuntarily admitted inpatients and legislative requirements in this bill, we consider, might need to be tightened. Section 57 of the principal act gives the police considerable power to go out and get patients at large who have not complied with leave conditions, but there appear to be no legislated obligations on treatment centre staff if leave conditions have been breached.

The director of a treatment centre is given considerable discretion to offer and monitor a leave of absence to an involuntary inpatient. The legislated onus is entirely upon the inpatient, it seems to us. Section 34(3) of the bill provides:

If granted a leave of absence, the involuntary inpatient is required to comply with the conditions of the leave of absence.

So, the obligation is on the inpatient. I raised this when I was being briefed and it was put to me that one must rely on the professional conduct of the medical care professionals dealing with the case to ensure that leave commitments are met and that it did not require legislation. We, on this side of the house, considered that most carefully. We note that section 34A(2) of the proposed bill provides:

Treatment centre staff may—

I emphasise the word 'may'—

take measures for the confinement of the patient, and exercise powers (including the power to use reasonable force), as reasonably required...

It goes on to talk about: for carrying the inpatient order and for maintenance of the order and security. My reading of this subsection is that there is no compulsion on treatment centre staff to take any measures if an involuntary patient has left the treatment centre without a leave of absence or if they have breached their leave of absence conditions.

I get back to the case I referred to from the Coroner. In some cases there may be a public safety implication to the inpatient and/or the broader public. I make this point: in this bill we are simply noting that the professionals 'may'. It occurred to us on this side of the house that perhaps there should be some compulsion on treatment centre staff to take certain measures if an involuntary patient had left the treatment centre without a leave of absence or had breached their conditions, just to clear up any uncertainty or doubt as to the obligations of a professional staff member. We all know that in 99 cases out of 100 all will go well, but we could imagine on our side of the house circumstances where that might not be so. We therefore considered whether we should seek to amend section 34A to include a new subsection (4) to this effect:

Where there is a history of violence or where violent behaviour is a potential risk, on becoming aware that an involuntary inpatient has breached or is likely to breach the conditions of their leave of absence treatment centre staff must inform police of such a breach as soon as practicable.

I was aware, when we considered this, that the professional staff who briefed me, certainly, and the government, would be likely to oppose such an amendment if we put it, on the basis that it was probably not necessary.

We had an interesting debate on our side about that proposition: perhaps it was not necessary, but would it improve the measure? On balance, after thinking the matter through, we have decided not to proceed with the amendment, but I thought it was worth expressing our concern in the house and bringing it to the minister's attention to see whether, perhaps by some other arrangement, things could be tightened up to ensure that the leave of absence issues were mandated and managed very, very rigidly.

Clearly, there is a potential danger to an inpatient, and possibly to the public at large and family members, if people who are being involuntarily detained or an involuntary inpatient are out there at large, their leave conditions are not adhered to and, as a result, someone is killed or injured or kills or injures themselves. We just felt that that was a bit loose and that it needed tightening up, but we are not going to proceed with an amendment and accept the advice we have been given that other arrangements probably need to be put in place to deal with that.

The only other issue we looked at was the consent for ECT on minors. We noted that amendment 6 altered the parameters in which a patient under 16 years of age could be prescribed electroconvulsive therapy. We note the new amendment enabled consent to be given by the parent or guardian or, failing this, by the Guardianship Board. This is something we explored during the briefing and, on reading the parent act, I can see it was a little bit confusing, shall we say. I accept that this will make things a little easier to administer while respecting the rights of both the patient and their family and make it a little bit easier for the professionals in this area to manage. So, we are happy to accept that.

In considering the bill, we believe the house needs to strike a balance between the interests of mental health patients and the interests of the families of mental health patients and the public at large. As I mentioned a moment ago, we just felt that that should be a point that is made during debate. In rebadging, if you like, detainees as inpatients, we agree that we are taking a step forward in terms of patient care, but we are arguably reducing transparency, for lack of a better word, from a general public perspective, who may have a better understanding of the word 'detainee' than they have of the term 'involuntary inpatient', which as a term may not clearly describe to a member of the public that that person is actually being detained against their will for periods of time.

I think that is something successive governments will need to manage, particularly when something goes wrong, as it has in the two Coroner's cases I mentioned, once a patient who has been involuntarily detained, or who is an involuntary inpatient, comes to grief whilst on leave. Having said that, we commend the bill and will be happy to support it.

Ms CHAPMAN (Bragg) (17:50): The lead speaker and the shadow minister for health have admirably covered the improvement of language proposed in this bill and I certainly have no objection to that. I think language is important and sometimes it needs to be contemporised. On the question of patients' leave from a facility and the conditions of that, again, I think he has admirably covered it and outlined some concerns that we have.

I raise the question of the amendment to ECT (which used to be known a shock treatment) which still remains a form of therapy which is necessary, as psychiatrists tell us, as one of the measures where they can maintain and help patients to recover, particularly in areas of deep depression.

When the Mental Health Act 2009 was under consideration, I made a contribution to that debate. We had had briefings from the chief psychiatrist (whose name I cannot remember now but who was from New Zealand) who had been appointed by the government to assist us in advice on a number of matters. I raised a number of issues with her at the time about the use of neurosurgery, which is also made provision for in this act, and it was to be made very clear that there could not be a return to what we had seen in the past—things such as lobotomies—and that there was to be no neurosurgical intervention on patients unless they had as a prerequisite to all of that, a mental health condition.

There had to be a diagnosis and there were a number of processes set in place to protect against any inappropriate intervention, requiring two psychiatrists, etc. I asked her then, 'Is there any known act of intervention—physical, surgical intervention—which is currently applied anywhere in the world that is used in the treatment of mental health?' She could not name one procedure anywhere in the world. However, she said, 'We need to have this section in here because we need to make sure that if something comes on the market, as such, or is developed and properly researched and it is appropriate and identified as being of benefit, we want to be able to use this section.'

We then considered the question of ECT, which is not a common practice (nor should it be, in my personal view but then I am not a psychiatrist) but is one which is used in certain circumstances. However, what I say is that, again, in the briefings with the then chief psychiatrist, it was clearly intended that this would be used only in very limited circumstances. It was clear that it was one that should have very strict parameters around it when a child was involved.

The Hon. M.J. Atkinson: Parameters?

Ms CHAPMAN: Listen up; wash out your ears or something, member for Croydon, so you can actually hear.

The Hon. M.J. Atkinson: Parameters?

Ms CHAPMAN: That's what I said.

The DEPUTY SPEAKER: Member for Croydon!

Ms CHAPMAN: Did you hear that?

The DEPUTY SPEAKER: Member for Bragg, you will address the chair.

Ms CHAPMAN: So use it sparingly, it is necessary however in some cases but when we are dealing with children we should be extra careful. So some fairly strict parameters were put around the occasions where a child could be the subject of shock treatment or electric current therapy.

I was a bit puzzled, therefore, to see some amendments seeking to clarify something which was not explicit in the second reading speech by the introduction of provision for a single authority—and that is the parents. I think parents should, in circumstances where there are children, be consulted and consent obtained anyway. If the consent of the parent is not available, a court process is there to ensure that it can happen. We do that, for example, with sterilisation of children where a court order has to be obtained.

I would like some explanation from the minister—in committee, perhaps—as to why it is now possible for a 14 year old to have ECT treatment, with the consent of a parent, yet the extra thresholds under the act are not required. That is as I read that amendment. The provision I particularly refer to is new section 42(1)(c), which states:

if the patient is under 16 years of age—by a parent or guardian of the patient or by the Board on application under this section.

So parents can sign off on this on their own as an alternative and that is the only requirement.

Mr PEDERICK (Hammond) (17:55): I rise, too, to speak to the Mental Health (In-patient) Amendment Bill 2012 and note that it will amend the Mental Health Act 2009 to bring in user-friendly terminology, from 'detention' to 'involuntary inpatient'. We note that the minister indicates that the bill makes a subtle but important change to the act if it goes through.

The aim of the bill is to destigmatise mental illness by more accurately reflecting the way in which contemporary involuntary mental health treatment is delivered, and I note the minister seeks to remove the negative connotation of the term 'detention' which is often associated with criminality and used in a punitive sense. The government has indicated that clinicians and other mental health experts generally support this.

In line with what happens with detainees under this change, the language will also mean that the minister can redefine patients who were previously detainees under the Mental Health Act as involuntary inpatients but, should an involuntary inpatient escape and commit an offence or be given an approved leave of absence during which he or she commits an offence, it may be less transparent to the public that the offender was classified as a risk to themselves or others.

In the case of leave of absence, clause 5 deals with the deletion and complete substitution of section 34 of the act regarding confinement and controls of involuntary inpatients. In particular, the issue of leave of absence for involuntary patients may have safety implications and, in the past, discussion in the public arena has focused on the dangers of allowing dangerous mental health patients leave or conditional absence from confined treatment.

Where a criminal offence has already been committed, patients come under the Criminal Law Consolidation Act and often reside at James Nash House. In other cases patients may be treated at Glenside or another major hospital. The overwhelming number of mental health cases do not involve involuntary confinement but, where they do, it is because the patient is deemed a risk to themselves or others. It seems that the government and clinicians see a need for leave of absence to be granted in certain circumstances to involuntarily admitted patients. The legislative requirements in this bill may need to be tightened.

Section 57 of the principal act gives the police considerable power to go out and get patients at large who have not complied with leave conditions but there appear to be legislated obligations on treatment centre staff if leave conditions have been breached. The director of a treatment centre is given considerable discretion to offer and monitor a leave of absence to an involuntary patient. The legislated onus is entirely upon the inpatient, and I will quote section 34 of the bill. I seek leave to continue my remarks.

Leave granted; debate adjourned.