Mental Health (Review) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:03): I move:

That this bill be now read a second time.

I seek leave to insert the second reading speech and explanation of clauses into Hansard without my reading them.

Leave granted.

I am pleased to introduce the Mental Health (Review) Amendment Bill 2015. The Mental Health Act 2009 (the Act) is based on contemporary rights, mental health service provision and legislative practice. Section 111 of the Act required a review of the operation of the Act by 30 June 2014.

In 2013 and 2014, the Office of the Chief Psychiatrist carried out that Review, which was focussed on how the rights of people with mental illness, their families and carers, and the service delivery capacity of agencies, could be enhanced.

The Review found that the Act required amendment rather than major redrafting based on the first four years of the operation of the Act, feedback from the people of South Australia, developments in international human rights and the review and commencement of mental health legislation in other Australian jurisdictions.

There are a number of proposed legislative amendments within the Bill. Four remove duplications and obsolete provisions, five improve clarity enhancing understanding of and compliance with the Act, seventeen change definitions and language, and others enhance rights and reinforce clinical best practice.

Of the amendments, there are three in particular in respect of which the Office of the Chief Psychiatrist will work in close collaboration with mental health services and other stakeholders in order to improve understanding of the intent and impact of the changes.

Firstly, Level 1 Community Treatment Order provisions have been amended to remove the existing structural barriers for mental health services and general practitioners to make this Order type, and to bring the use of this Order into line with the least restrictive principles of the Act and clinical best practice.

Secondly, Patient Transport Request provisions have been amended to allow mental health services to request the assistance, if it is safe and appropriate to do so, of SA Ambulance Services and South Australia Police to provide medication to a patient subject to a Community Treatment Order in their own home, rather than taking the person to a hospital for their medication and then returning them home. This amendment will lessen impact and inconvenience for patients and their families and allow services to be delivered more effectively, and will align with the least restrictive principles of the Act and clinical best practice.

Thirdly, changes to the Community Visitor Scheme provisions and regulations to increase the facilities and services within scope of the Scheme, within existing budgets and resources, to include Community Mental Health Centres, Community Rehabilitation Centres and Intermediate Care Centres. This will allow consumers who access services within the community to be represented and heard as well as those who are in acute settings.

Mental health legislation must change over time in order to reflect contemporary attitudes and approaches to acceptance and treatment of mental illness. It must be expressed in a way that provides maximum flexibility to enable individuals with responsibilities and powers under the Act to carry out their roles effectively.

The amendment of the Act provides an opportunity for the Government to improve the rights of people with mental illness, enhance the capacity of mental health services to provide treatment and care, enhance the capacity of government agencies to collaborate, provide clarity for matters that are currently ambiguous and remove provisions that are stigmatising or discriminatory.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Mental Health Act 2009

4—Amendment of Long title

The long title is to be amended to reflect current language relating to persons with severe mental illness.

5—Amendment of section 3—Interpretation

The amendments will insert a number of new definitions (including, authorised community mental health facility, voluntary community patient and restrictive practice); and makes amendments to a number of current definitions of a consequential nature. The definition of patient is to be substituted so as to be defined in relation to the provision of mental health services and to include, where the context so requires, a person to whom section 56 applies and a person with a mental illness (within the meaning of the principal Act) who is liable to a supervision order under Part 8A Division 4 of the Criminal Law Consolidation Act 1935. The definition of patient at large is to be deleted and, instead, the principal Act will refer to patients being absent without leave. Provision is also made in the section for forms approved by the Chief Psychiatrist to be published on the Department's website.

6—Amendment of section 4—Application of Act

Section 4 is to be amended so that it makes provision for an obligation under the principal Act to give information to a patient who is under the age of 16 years to be met by providing the information to the patient's parent or guardian. The amendments also clarify that, subject to an express provision to the contrary in the principal Act or another Act, the principal Act is in addition to and does not derogate from—

the Advance Care Directives Act 2013; and

the Consent to Medical Treatment and Palliative Care Act 1995; and

the Guardianship and Administration Act 1993.

7—Amendment of section 5—Medical examinations by audio-visual conferencing

This amendment is consequential.

8—Insertion of section 5A

5A—Decision-making capacity

This new section is similar to what is provided for in the Advance Care Directives Act 2013 and sets out the presumption relating to persons and decision-making capacity and how to assist in determining whether a person has, in respect of a particular decision, impaired decision-making capacity.

9—Amendment of section 6—Objects

This amendment is consequential.

10—Amendment of section 7—Guiding principles

The amendments to this section clarify the guiding principles to be used by persons involved in the administration of the principal Act. The section is also to be amended so that the guiding principles are extended to the provision of mental health services to voluntary community patients.

11—Amendment of section 9—Voluntary inpatients to be given statement of rights

This amendment is consequential.

12—Amendment of section 10—Level 1 community treatment orders

A number of the amendments to section 10 are consequential. A new paragraph is to be substituted in subsection (1) to include as a pre-condition to the making of a level 1 community treatment order, the fact that the person in relation to whom the order for treatment is to be made, has impaired decision-making capacity relating to his or her appropriate treatment of the person's mental illness. Subsection (4) is amended to extend the period after which an order must expire from 28 to 42 days. Substituted subsection (5) sets out the procedure to be followed once a level 1 community treatment order has been made.

13—Amendment of section 11—Chief Psychiatrist to be notified of level 1 orders or their variation or revocation

This amendment is consequential.

14—Amendment of section 12—Copies of level 1 orders, notices and statements of rights to be given to patients etc

This amendment is consequential.

15—Repeal of section 15

This clause repeals section 15 of the principal Act.

16—Amendment of section 16—Level 2 community treatment orders

This clause amends section 16 so that the meaning of harm includes harm that is physical or mental. Section 16(1)(c) is substituted with new paragraph (c) so that the Tribunal may make a level 2 treatment community treatment order if it is satisfied that the person has impaired decision-making capacity relating to appropriate treatment of the person's mental illness.

17—Amendment of section 21—Level 1 inpatient treatment orders

A number of the amendments to section 21 are consequential. A new paragraph is to be substituted in subsection (1) to include as a pre-condition to the making of a level 1 impatient treatment order, the fact that the person in relation to whom the order for treatment is to be made, has impaired decision-making capacity relating to his or her appropriate treatment.

18—Amendment of section 22—Chief Psychiatrist to be notified of level 1 orders or their revocation

This amendment is consequential.

19—Amendment of section 23—Copies of level 1 orders, notices and statements of rights to be given to patients etc

The amendments made by this clause are consequential.

20—Amendment of section 24—Treatment of patients to whom level 1 orders apply

This clause amends section 24 of the principal Act so that treatment for any illness that may be causing or contributing to the mental illness of the patient may be given to the patient to whom a level 1 impatient treatment order applies.

21—Amendment of section 25—Level 2 inpatient treatment orders

A number of amendments to section 25 are consequential. The clause includes an amendment that corresponds to earlier amendments relating to the making of treatment orders and the impaired decision making capacity of a person with mental illness. This clause amends section 25 to enable a psychiatrist or authorised medical practitioner to extend a level 2 impatient treatment order for a further maximum period of 42 days.

22—Amendment of section 26—Notices and reports relating to level 2 orders

This amendment is consequential.

23—Amendment of section 27—Copies of level 2 orders, notices and statements of rights to be given to patients etc

This amendment is consequential.

24—Amendment of section 28—Treatment of patients to whom level 2 orders apply

This clause makes an amendment to section 28 of the principal Act that corresponds to an earlier amendment about the treatment of any illness that may be causing or contributing to the mental illness of the patient to whom the treatment order applies.

25—Amendment of section 29—Level 3 inpatient treatment orders

This clause makes amendments to section 29 of the principal Act that correspond to earlier amendments.

26—Amendment of section 31—Treatment of patients to whom level 3 orders apply

This clause makes a consequential amendment and makes an amendment that corresponds to an earlier amendment about the treatment of any illness that may be causing or contributing to the mental illness of the patient to whom the treatment order applies.

27—Amendment of section 34A—Confinement and other powers relating to involuntary inpatients

This clause amends section 34A to enable treatment centre staff to restrain the patient and use force as reasonably required in the circumstances when taking measures for the confinement of the patient.

28—Amendment of section 35—Transfer of involuntary inpatients

This amendment is consequential.

29—Amendment of section 36—Leave of absence of involuntary patients

This amendment is consequential.

30—Amendment of section 37—Persons granted leave of absence to be given statement of rights

This amendment is consequential.

31—Amendment of section 38—Cancellation of leave of absence

This amendment is consequential.

32—Amendment of section 39—Treatment and care plans for voluntary patients

This clause amends section 39 of the principal Act to make it clear that a treatment and care plan should describe the services that will be provided or made available to the patient. The amendments also expands on the people or service providers connected to the patient to be consulted when preparing and revising a treatment and care plan. The clause defines the term voluntary patient for the purposes of section 39.

33—Amendment of section 40—Treatment and care plans for patients to whom community treatment orders apply

This clause amends section 40 of the principal Act in a way that corresponds with an earlier amendment to require the preparation and revision of a treatment and care plan to be done in consultation with certain people and service providers connected to the patient.

34—Amendment of section 41—Treatment and care plans for patients to whom inpatient treatment orders apply

This clause amends section 40 of the principal Act in a way that corresponds with an earlier amendment to require the preparation and revision of a treatment and care plan to be done in consultation with certain people and service providers connected to the patient.

35—Insertion of Part 7 Division A1

This clause inserts Part 7 Division A1 into the principal Act to establish the Prescribed Psychiatric Treatment Panel. The Panel has various functions in relation to the regulation, review and authorisation of prescribed psychiatric treatments.

Division A1—Prescribed Psychiatric Treatment Panel

41A—Prescribed Psychiatric Treatment Panel

441B—Conditions of appointment to Panel

41C—Functions of Panel

41D—Constitution and proceedings of Panel

36—Amendment of section 42—ECT

This clause amends section 42 of the principal Act to make provision for a substitute decision maker to consent to the treatment where the patient has an advance care directive in place and the patient is incapable of making the decision on his or her own behalf. The provision retains the capacity for a medical agent, guardian or Tribunal to make the decision where no substitute decision maker has been authorised.

The clause inserts a provision that outlines the limits that apply to treatment authorised by a consent provided under this section. The clause also requires the notice of the administration of treatment under section 42 to the Chief Psychiatrist be given whether the treatment is given with consent under subsection (1) or without under subsection (6).

37—Amendment of section 43—Neurosurgery for mental illness

This clause amends section 43 to add a requirement that the Prescribed Psychiatric Treatment Panel authorise the neurosurgery for treatment of the illness. The clause makes related amendments to ensure that the Chief Psychiatrist is given notice of the proposed neurosurgery. The clause makes provision for the requirement that a written report be given to the Chief Psychiatrist within 3 months of the neurosurgery being carried out.

38—Amendment of section 44—Other prescribed psychiatric treatments

This clause inserts a requirement that the recommendation of the Prescribed Psychiatric Treatment Panel prior to the making of a regulation declaring treatment to be prescribed psychiatric treatment or regulating the administration of any such treatment.

39—Amendment of section 45—Assistance of interpreters

This amendment is consequential.

40—Amendment of section 46—Copies of Tribunal's orders, decisions and statements of rights to be given

This amendment is consequential.

41—Amendment of section 50—Community visitors

This clause amends section 50 by removing the requirement that a person cannot be a Principal Community Visitor or a Community Visitor for more than 2 consecutive terms.

42—Amendment of section 51—Community visitors' functions and powers

This clause gives community visitors the additional function of conducting visits to and inspections of authorised community mental health facilities (including visits to and inspections of any hospital that is an incorporated hospital under the Health Care Act 2008).

43—Insertion of section 51A

This clause inserts new section 51A to enable the Principal Community Visitor to delegate powers or functions to a community visitor.

51A—Delegation by Principal Community Visitor

44—Amendment of section 52—Visits to and inspections of treatment centres

This clause amends section 52 to make changes to the requirements imposed on community visitors for the periodic visiting and inspection of treatment centres.

45—Insertion of section 52A

This clause inserts new section 52A to provide for the visiting to and inspection of authorised community mental health facilities by community visitors.

52A—Visits to and inspection of authorised community mental health facilities

46—Amendment of section 54—Reports by Principal Community Visitor

This clause amends section 54 of the principal Act to ensure that the performance of the community visitors' functions is incorporated into the report of the Principal Community Visitor to the Minister.

47—Insertion of section 54A

This clause inserts new section 54A into the principal Act.

54A—Issuing of patient assistance requests

Proposed section 54A enables a medical practitioner or mental health clinician to issue a patient assistance request so that they may treat a patient who does not comply with a community treatment order. The proposed section ensures that the patient be given a copy of the patient assistance request and a statement of rights.

48—Amendment of section 55—Issuing of patient transport requests

A number of amendments made by this clause are consequential. The clause also makes amendments to ensure that the patient to whom a patient transport request is made is given a copy of the request and a statement of rights.

49—Amendment of section 56—Powers of authorised officers relating to persons who have or appear to have mental illness

A number of amendments made by this clause are consequential including amendments that are consequent on the insertion of section 54A by clause 47.

50—Amendment of section 57—Powers of police officers relating to persons who have or appear to have mental illness

A number of amendments made by this clause are consequential including amendments that are consequent on the insertion of section 54A by clause 47.

51—Insertion of section 58A

This clause inserts new section 58A into the principal Act to require authorised officers to keep certain records relating to the exercise of their powers under the principal Act.

58A—Officers to keep records about exercise of powers under Act

52—Amendment of section 61—Interpretation

This clause inserts and amends definitions used for the purposes of Part 10 of the principal Act. In particular, it expands the meaning of corresponding law to include a law of another jurisdiction that makes provision for the treatment and care of persons with mental illness and corresponds (or substantially corresponds) to the principal Act.

53—Amendment of section 63—Requests or approvals relating to actions involving other jurisdictions

This clause amends section 63 of the principal Act to extend the capacity to take or approve specific action (as the case may be) if the action is not disallowed by a Ministerial agreement.

54—Amendment of section 64—Powers of South Australian officers

This amendment is consequential.

55—Amendment of section 66—South Australian community treatment orders and treatment in other jurisdictions

This clause makes amendments to section 66 of the principal Act to ensure that the power exists to treat South Australian patients to whom a community treatment order applies interstate.

56—Amendment of section 67—Powers of interstate officers

This clause amends section 67 of the principal Act to enable interstate officers to have the power of forcible entry in South Australia if the interstate officer is a police officer.

57—Amendment of section 68—Interstate community treatment orders and treatment in South Australia

This clause amends section 68 of the principal Act to ensure that certain powers may be exercised in relation to a patient in South Australia to whom an interstate community treatment order applies. The clause inserts requirements relating to the provision of a statement of rights to the patient and other requirements relating to the notification of guardians and relatives.

58—Amendment of section 69—Making of South Australian community treatment orders when interstate orders apply

This clause makes amendments to section 69 of the principal Act that correspond to earlier amendments relating to the provision of a statement of rights and the notification of guardians and relatives.

59—Amendment of section 70—Transfer from South Australian treatment centres

This clause makes amendments to section 70 of the principal Act that correspond to other amendments that substitute references to the director of a South Australian treatment centre with references to the Chief Psychiatrist. It also makes amendments that are consequential. The clause will insert subsection (7), which enables the transfer of a patient interstate to occur despite subsection (6) in circumstances where the necessary consents to the transfer have been provided.

60—Amendment of section 71—Transfer to South Australian treatment centres

This clause transfers the power to approve the transfer of a person to a South Australian treatment centre from the director of the treatment centre to the Chief Psychiatrist. It also makes amendments to section 71 of the principal Act that correspond to earlier amendments relating to the provision of a statement of rights to the patient and the notification of guardians and relatives of the patient.

61—Amendment of section 72—Patient transport requests

A number of amendments made by this clause correspond to earlier amendments and transfer the authority to make the necessary patient transport request from the director of a South Australian treatment centre to the Chief Psychiatrist. It also makes amendments to section 71 of the principal Act that correspond to earlier amendments relating to the provision of a statement of rights to the patient and the notification of guardians and relatives of the patient.

62—Substitution of section 73

This clause inserts new section 73 into the principal Act and establishes the powers of South Australian and interstate authorised officers in respect of a person who is subject to a patient transport request.

73—Powers when patient transport request issued

63—Amendment of section 74—Transport to other jurisdictions when South Australian inpatient treatment orders apply

This clause amends section 74 of the principal Act by requiring the approval of the Chief Psychiatrist before a patient to whom the section applies may be transported to an interstate treatment centre or delivered to an interstate authorised officer for transport. The clause also alters the powers that may be exercised by interstate authorised officers who are police officers.

64—Amendment of section 75—Transport to other jurisdictions of persons with apparent mental illness

Amendments made by this clause to section 75 of the principal Act are either consequential on or correspond to other amendments.

65—Amendment of section 76—Transport to other jurisdictions when interstate inpatient treatment orders apply

This amendment to section 76 of the principal Act corresponds to earlier amendments. The amendments require the approval of the Chief Psychiatrist before certain action can be taken under the section. The clause also makes amendments that correspond to earlier amendments relating to the provision of a statement of rights to the patient and the notification of guardians and relatives of the patient. The clause also alters the powers that may be exercised by interstate authorised officers who are police officers.

66—Amendment of section 77—Transport to South Australia when South Australian inpatient treatment orders apply

Amendments made by this clause to section 75 of the principal Act are either consequential on or correspond to other amendments.

67—Amendment of section 78—Transport to South Australia of persons with apparent mental illness

This amendment made to section 78 of the principal Act by this clause correspond to other amendments relating to the powers that may be exercised by interstate authorised officers who are police officers.

68—Amendment of section 85—Tribunal must give notice of proceedings

This clause amends section 85 of the principal Act to ensure that the Chief Psychiatrist is given notice of hearings of proceedings before the Tribunal in circumstances where the proceedings relate to an application for consent to prescribed psychiatric treatment.

69—Amendment of section 90—Chief Psychiatrist's functions

This clause amends section 90 of the principal Act to reflect changes in terminology. The clause makes amendments that give the Chief Psychiatrist certain powers to enter the premises of an incorporated hospital in relation to the conduct of inspections under the section. This clause imposes fines for a failure to comply with certain requirements and hindering or obstructing the Chief Psychiatrist in the exercise of the Chief Psychiatrist's powers under proposed subsection (5).

70—Amendment of section 92—Annual report of Chief Psychiatrist

This clause amends section 92 to require the Chief Psychiatrist to include in his or her annual report information about how the Chief Psychiatrist has performed the administrative functions conferred on him or her under the Act.

71—Amendment of section 93—Authorised medical practitioners

This clause amends section 93 of the principal Act to replace the Minister with the Chief Psychiatrist as the person with the power to determine that a specified medical practitioner or class of practitioners will be authorised medical practitioners. The clause inserts a requirement on the Chief Psychiatrist to maintain records of the Chief Psychiatrist's determinations and any conditions or limitations attached to each such determination under the section.

72—Substitution of heading to Part 12 Division 4

This clause substitutes the heading of Part 12 Division 4.

73—Amendment of section 94—Authorised mental health professionals

This clause amends section 94 of the principal Act to replace the Minister with the Chief Psychiatrist as the person with the power to determine that a specified person or person of a specified class will be an authorised mental health professional. The clause inserts a requirement on the Chief Psychiatrist to maintain records of the Chief Psychiatrist's determinations and any conditions or limitations attached to each such determination under the section.

74—Amendment of section 95—Code of practice for authorised mental health professionals

The amendments made by this clause are consequential.

75—Amendment of section 96—Approved treatment centres

The amendments made by this clause are consequential.

76—Amendment of section 97—Limited treatment centres

The amendments made by this clause are consequential.

77—Insertion of section 97A

This clause inserts new section 97A into the principal Act. The proposed section will enable the Chief Psychiatrist to determine that a specified place will be an authorised community mental health facility.

97A—Authorised community mental health facilities

78—Repeal of sections 98 and 99

This clause repeals sections 98 and 99 of the principal Act.

79—Amendment of section 102—Offences relating to authorisations and orders

This amendment is consequential.

80—Amendment of section 103—Medical practitioners or health professionals not to act in respect of relatives

This amendment is consequential.

81—Amendment of section 109—Evidentiary provision

This amendment is consequential.

82—Amendment of section 111—Review of Act

This clause amends section 111 of the principal Act to extend the year within which the Act must be reviewed from 4 to 5 years.

Schedule 1—Related amendments

Part 1—Amendment of Advance Care Directives Act 2013

1—Amendment of section 12—Provisions that cannot be included in advance care directives

This clause amends section 12 of the principal Act to expand the meaning of mandatory medical treatment to include medical treatment provided under section 56 of the Mental Health Act 2009.

Part 2—Amendment of Health Care Act 2008

2—Amendment of section 68—Preliminary

This clause amends section 68 of the principal Act to expand the meaning of designated authority to include the Chief Psychiatrist in certain specified circumstances.

Debate adjourned on motion of Hon. T.J. Stephens.