Criminal Law Consolidation (Mental Impairment) Amendment Bill

Committee Stage

In committee.

(Continued from 28 February 2017.)

Clauses 2 to 4 passed.

Clause 5.

The Hon. S.G. WADE: Minister Malinauskas advised us on Tuesday that the government was negotiating with the Hon. Kelly Vincent in relation to her amendments. Can the minister update the chamber on the progress of those negotiations?

The Hon. P. MALINAUSKAS: My advice is that there have been discussions between the Attorney-General's office and the office of the Hon. Ms Vincent but as it stands there has not been a specific resolution reached. The government's current position is to maintain its opposition to the Vincent amendments.

The Hon. S.G. WADE: I thank the minister for his update. Could the minister clarify if the definition of 'drug' in clause 5 includes a therapeutic drug?

The Hon. P. MALINAUSKAS: The answer is yes.

The Hon. S.G. WADE: Considering that a therapeutic drug is included in that definition, I presume therefore that clause 6(3)—which is proposing a new subsection (2) in section 269C(b)—that intoxication in that context could be intoxication by a therapeutic drug.

The Hon. P. MALINAUSKAS: No, unless the therapeutic drug has been taken in a way that is contrary to the prescribed instructions or the instructions of the drug manufacturer.

The Hon. S.G. WADE: Can I ask the minister to reconcile that answer with the previous answer? I cannot see any limitation in 5(2) to relate to therapeutic use. The sort of answer the minister is giving is what is anticipated in clause 5(8), which relates to control orders—it does not relate to the definition. Could the minister reconcile the inconsistency between his answers?

The Hon. P. MALINAUSKAS: My advice is that, when you look collectively at three separate definitions in their respective context, the issue or concern you raise is dealt with, namely, the definitions of 'therapeutic, 'recreational use' and also 'self-induced intoxication'.

The Hon. S.G. WADE: With all due respect, I will give further consideration to that, but I am not convinced by a mere assurance that the government knows best.

I highlight to the minister that, whether or not therapeutic drugs are included in 269C(2) is relevant to both the impairment and the intoxication. The government's bill, as currently drafted, seems to me to suggest that your impairment could be produced by the use of a therapeutic drug. On the basis of the government's advice on Tuesday, that could relate to therapeutic use of a drug decades before—let's say an adverse outcome on a pharmaceutical drug—yet, you would lose access to this defence.

It also applies at the time of the offence. If your intoxication at the time is related to use of a therapeutic drug—perhaps cough mixture that has alcohol in it—you lose access to the defence. I give an undertaking to the minister that I will reflect on his words and see whether I cannot gain more reassurance at a later date.

With the next definition I would like to explore, in relation to intoxication, could the minister clarify whether the word 'temporary' in clause 5(3) applies not just to disorder but also to abnormality and impairment?

The Hon. P. MALINAUSKAS: The answer to that question is yes. To provide a bit more of an explanation around that, rather than the way it has been worded, intoxication by its nature is a temporary state.

The Hon. S.G. WADE: I ask the minister: what is the effect of deleting the words 'but does not include intoxication' at the end of the current definition of mental impairment? Clause 5(5) deletes those words.

The Hon. P. MALINAUSKAS: That simply reflects the object of the bill, which is to make it clear that intoxication is being removed as a defence and does not constitute a mental impairment.

The Hon. S.G. WADE: Reflecting on the minister's answers on Tuesday, he basically advised us that if your brain injury was related to your own consumption of alcohol, for example, an alcohol-related brain injury, you would not be able to rely on the claim that you are mentally incompetent to be guilty of an offence, but that if it was your mother's consumption of alcohol, for example, through foetal alcohol syndrome, you would. In functional terms, the same person is impaired to the same extent, so what we are introducing here is an element of moral opprobrium for how your IQ was arrived at.

My understanding—and the Hon. Kelly Vincent is much better informed on these things than I am—is that to have an intellectual disability, and I presume to have a brain injury that relates to an intellectual disability, you need to have an IQ of 70. Whether or not it was produced by your own actions or those of your mother, it does produce the same level of mental competence. It seems to me—and the minister can correct me if I am misunderstanding the government's policy intent—that we are punishing people in relation to a contemporary offence for behaviour perhaps decades previously. Could the minister clarify what the government's policy intent in this area is?

The Hon. P. MALINAUSKAS: We have to understand the context of this bill. We are talking about where a criminal act has transpired and what is being used as a defence. You ask about the policy objective of the government. It is that where someone, through a conscious decision of their actions, has intoxicated themselves, they are subject to the full force of the law.

Clearly, for a person suffering from an impairment or a mental disability as a consequence of actions that have nothing to do with themselves, for instance someone suffering from a condition that is the consequence of their mother's behaviour as distinct from their own, there is a significant distinction between that and someone else who has developed an impairment as a result of their own intoxication, at whatever point in time that occurred. I find it surprising that the concept of one taking responsibility for their actions is something I am having to explain to the conservative side of politics.

The Hon. S.G. WADE: I beg to differ with the minister's interpretation of the operation of criminal law. At this stage in the Criminal Law Consolidation Act, we have not even determined a criminal offence has occurred. This relates to the mental competence of somebody to commit an offence. Everyone is familiar with actus reus and mens rea. This is before you even have a criminal offence established. Again, I will take the minister's words into account, but I think he has mischaracterised the criminal law.

The Hon. P. Malinauskas interjecting:

The Hon. S.G. WADE: I am sorry, you asserted that a criminal offence has been committed; I say that that is not the case. If a person has a mental impairment when they commit a criminal offence such that they do not have the understanding, moral awareness or control that they are considered to be mentally competent to commit the offence, they do not commit an offence, so a criminal offence has not been committed.

The Hon. T.A. FRANKS: Obviously I am not a lawyer, but I am certainly someone who pays attention to the media and I am listening to the minister's answers. If someone had taken Stilnox for their insomnia, it is well known that people can actually drive in their sleep and they can come to grief in some way, injure someone. Would the effect of the Stilnox be taken into consideration in their defence in that instance? Could you clarify that?

The Hon. P. MALINAUSKAS: That is a really good example, because it demonstrates exactly why the format of the bill, as it stands, is appropriate. Where someone has taken Stilnox to treat insomnia then either they would have been prescribed it or they would have taken it over the counter in a way to treat a genuine condition. Provided they were using Stilnox in a way that was consistent with their medical advice or prescription or consistent with the instructions of the issuing authority, be it the manufacturer or the pharmacist, then they would be taking the drug in a way that would be therapeutic and that would be fine.

The Hon. T.A. FRANKS: My understanding is that Stilnox is in a class of drugs that people who have an acquired brain injury are often prescribed. Would the acquired brain injury, the condition itself, be considered?

The Hon. P. MALINAUSKAS: A good example, again, from the Hon. Tammy Franks. It would be up to the court to determine what caused the injury or caused the incident. If the court determined that consumption of the Stilnox, which was being prescribed therapeutically, and the effect of the Stilnox was what caused the injury, then a court could determine that the defence could apply. However, if the court equally determined that the impairment, which was a consequence of frequent self-induced intoxication, was the cause of the injury then the defence would not apply.

The Hon. T.A. FRANKS: So, if a person had acquired a brain injury through a car accident that was no fault of their own they would not be seen to be, in some way, responsible for their behaviour, taking the exact same drug at a later date, as someone who had consumed something that had given them that brain injury. Is that what you are saying?

So, you would go back to a previous incident in a person's life, perhaps many years prior, and work out how they came to have the particular condition they have—in this case, an acquired brain injury—to then take a therapeutic drug, to then commit an act that would happen regardless of how they came to have that acquired brain injury, and you would make a decision on something that happened many years ago in their life, about whether or not they would then be seen to be able to resort to having their mental impairment considered or not. You would have two classes of people, and a very complicated system. Is this the case?

The Hon. P. MALINAUSKAS: If the injury occurred as a consequence of the consumption of Stilnox, so the Stilnox for all intents and purposes resulted in the person inadvertently getting behind the wheel of a car and causing an accident and so forth, my advice is that they can rely on the defence. In terms of the question of what caused their impairment, then yes, there is a distinction between a person developing an acquired brain injury as a consequence of self-intoxication versus someone who did not acquire a brain injury in that way. So, there is a distinction there.

However, in the case of your example, it would be up to the court to take evidence and make a determination accordingly around what were the things that contributed to an accident taking place, and if indeed it was the Stilnox and the court determined on the basis of the evidence brought before it that it was the Stilnox that caused the injury, then this would be a defence they could rely upon, provided, of course, they took the Stilnox in a way that was consistent with the requirements for it to be taken therapeutically.

The Hon. A.L. McLACHLAN: I just want to put another example to better tease out the causation issues in the bill. As I understand it, if a teenager, let's say someone under 18, was smoking marijuana which resulted in a mental impairment that was identified by medical practitioners and then at the age of 70 they sought to rely on that mental impairment, under these amendments they would not be able to rely on the mental impairment, even though they had suffered from it from the age of under 18 to the age of 70.

The Hon. P. MALINAUSKAS: Yes.

The Hon. K.L. VINCENT: I have a couple of questions, and I think a few have already been tackled by the Hon. Mr McLachlan and the Hon. Ms Franks. I think we are all quite concerned about these issues and we are trying to drill down to the end. I want to take a few steps back, to the definition of 'drug', and check with the minister whether a prescribed drug would also include medical cannabis, since that is something that this state is currently seeking to make available as a prescribed drug for medical purposes. Would it depend on factors such as how the medical cannabis was ingested? Also, would it depend on the THC levels present in the medical cannabis that that particular person was using?

The Hon. P. MALINAUSKAS: If medical cannabis was consumed in a way that was consistent with the law and consistent with what is the case with other therapeutic drugs—i.e. it was prescribed, it was consumed in the way it was advised to the patient, it was consistent with instructions from the prescribing doctor or other authorities—then yes, it would be covered as a therapeutic drug.

The Hon. M.C. PARNELL: A new player enters the fray. On a similar theme, I am desperately trying to understand, as a lawyer, what the minister said very early on in his contribution, which was around this issue of prescription drugs, or therapeutic drugs. The minister's response was that there are three definitions in clause 5 which have the effect of saying that if your mental impairment was caused by taking prescription drugs according to direction, you will be okay.

The minister said there are three definitions. There is the definition of intoxication, and that then refers to 'drug', and there is a definition of 'drug'. There is also a new definition to be put in, the definition of 'therapeutic'. But when we look at clause 6 of the bill and new section 269C(2), there is no reference in that new provision to therapeutic drugs, and I cannot find any reference anywhere in the other parts of the Criminal Law Consolidation Act that are not being amended by this that actually let people off the hook, as it were, if the reason for their mental impairment is that they have taken therapeutic drugs.

This new provision in clause 6 says that if they have taken drugs voluntarily then they cannot be dealt with under part 8A but they can be dealt with under part 8. Part 8 of the act is headed 'Intoxication', and 8A is headed 'Mental impairment'. What I am trying to understand—and I think it will be good to have a lunch break, perhaps, to get some legal advice on this—is that it does not seem to me that the minister's answer stacks up. If a person has taken prescribed quantities of therapeutic drugs, according to the label and according to the directions, that have affected their mental capacity, I think they are caught by this provision. If they took those prescription drugs voluntarily, I think they are in trouble.

If the minister can come back, perhaps after lunch, and point us to chapter and verse of the Criminal Law Consolidation Act to tell us that is not the case, then that will be interesting to hear, but I am not satisfied at present with the minister's answers that people who are doing nothing wrong as it were—they are perhaps taking powerful drugs in large quantities because that is what has been prescribed—they should not be adversely impacted by this bill in the unfortunate event that mental impairment resulting in a criminal offence is the outcome of their taking, voluntarily, those drugs.

The Hon. S.G. WADE: Unless the minister wants to respond to that now, I have more questions.

The Hon. P. MALINAUSKAS: I will have another crack at this, but maybe the Hon. Mr Parnell's suggestion of having a discussion over lunch is not a bad idea either. I will have another crack at it on the off chance that I nail it. If you look at the definition of 'self-induced' and then you look at it in the context of recreational use, so 'self-induced' refers to the concept of recreational use, and then if you look at 'recreational use' as a definition under clause 5, what is deemed to be recreational use specifically excludes consumption of a drug if is deemed to be therapeutic. Under the definition of 'recreational use' you will see that if a drug is consumed in a way that is therapeutic then it is not recreational use, and if it is not recreational use then it is not self-induced.

The Hon. S.G. WADE: As I said, we will take time to consider the minister's responses. I would like to move to another form of alcohol-related impairment. As we all know, dementia is a growing wave of disablement in our community. One form of dementia is alcohol-related dementia. It is a form of dementia that relates not only to excessive drinking but it is also understood to relate to gastrointestinal disorders and other systemic diseases. Sometimes it is known as Wernicke-Korsakoff syndrome so I will refer to it as WKS.

I refer to an article from Alzheimer's Research and Therapy called 'Alcohol-related dementia: an update of the evidence'. Just to show this is not a particularly rare condition, this report states:

Prevalence rates of WKS identified post-mortem are thought to be between 1% and 2% of the general population and around 10% of alcohol misusers in Western countries.

In the context of dementia, if a person is potentially going to be considered as having committed a criminal offence, will a person with dementia need to show that their dementia is not related to alcohol? Specifically, would a person with WKS need to show that their form of WKS was related to gastrointestinal disorders or other systemic diseases, to ensure that their mental impairment can be accepted as a cause of their lack of moral awareness or control, so that an offence has not been committed?

The Hon. P. MALINAUSKAS: In the case of the example the Hon. Mr Wade has just raised in relation to alcohol-induced dementia—I am not sure if that is the technical medical term—the same principles apply that would be the case in other instances. In order to be able to rely on the defence, the defendant has the burden to demonstrate that the defence applies to them. They would have to demonstrate, in your instance, that the defence should apply, rather than the other way round.

The Hon. S.G. WADE: In an evidence sense, that might be problematic with something like WKS, when the overwhelming predominance is alcohol related. Again, we will consider the minister's answers.

I am interested in the issue of causation. The government seems to be bending over backwards to avoid a causation link in section 269C, because it says that the offence has been caused either wholly or in part. The Attorney seems to be really keen to avoid putting a causation link in there, but then seems to be quite happy to put causation issues into whether or not the impairment was self-induced or whether the intoxication was self-induced.

I am much more comfortable with contemporary intoxication. The Hon. Andrew McLachlan gave a very interesting case study: a person below the age of 18 is not even able to have the moral authority to commit an offence in the way that an adult can, and yet, if you like, it is going to be attached at the end of their life, when it would not be attached at the beginning of their life. So, I am interested as to why the government is so comfortable to go into very complex issues of causation on the mental impairment, but seems to be resolutely avoiding causation when it comes to the actual event itself.

The PRESIDENT: The minister has taken that as a comment. Are there any further contributions? The Hon. Ms Vincent.

The Hon. K.L. VINCENT: I have a few questions. I appreciate that the minister seems to feel that he has nailed the definition of recreational versus therapeutic drugs, but I would like to give a few examples to make absolutely sure that we are clear on this. For example, if I take an amphetamine-based substance like Ritalin, it is likely to have quite a detrimental effect on my behaviour, whereas for someone who was diagnosed with ADHD it might have a positive impact on their behaviour—quite the opposite of what it might do to someone like me. In that instance, how do we define 'intoxicated', because we are both under the influence of the same substance but it is having very different impacts on the two of us?

The Hon. P. MALINAUSKAS: In all those instances, as in every other instance pertaining to the drug (for example, medical cannabis, Stilnox, Ritalin), as long as the drug is being consumed in the way it has been prescribed—that is, is consistent with the prescription and the appropriate dosage as recommended by the doctor or the manufacturer—it is therapeutic and the defence would apply.

The Hon. K.L. VINCENT: I have one further question on that. I have constituents at my office, who report to me—at least, anecdotally—that they feel more stoned (to use a colloquialism or their words) or more affected when they take strong schedule 8 narcotic drugs such as Endone, compared to when they use medical cannabis in a therapeutic context to relieve pain or treat the same symptoms. Who, in that context and for the purposes of this bill, is more intoxicated—someone on a substance like medical cannabis or someone on something such as Endone?

The Hon. P. MALINAUSKAS: What matters in the instance that you have just described is whether or not the relevant drugs were prescribed or taken in a way that is consistent with what is defined as a therapeutic drug. In the example of someone who has been prescribed Endone and is taking it in a way that is consistent with their prescription (the dosage instructions and so forth), Endone would be deemed to be a therapeutic drug and the defence would apply.

However, if that same person said, 'I don't like the feeling of Endone', and unilaterally decided to start taking medical cannabis without it having been prescribed and without following appropriate instructions and then an incident were to occur where it was demonstrated that the medical cannabis resulted in intoxication, then the defence would not apply in the case of the medical cannabis because it had not been prescribed and therefore had not been consumed in a way that is deemed therapeutic.

The Hon. K.L. VINCENT: If a person has a prescription for a drug like Endone (prescribed by a doctor) that they are taking it post injury or post surgery, for example, and they have one glass of wine along with the Endone—I do not particularly condone that, but I use it as an example—they might be intoxicated by it, despite only having had one glass and being well below the 0.5 blood alcohol content limit. For the purposes of this bill, is that deemed intoxication through a combination of therapeutic and recreational drugs?

The Hon. P. MALINAUSKAS: If a court found that the wine resulted in intoxication, then the defence would not apply because they would be intoxicated as a result of a recreational use of a drug that was not therapeutic, in this case the wine. So, it would be up to the court, on the basis of the evidence brought before it, to make a determination as to whether or not the consumption of alcohol, in this case the glass of wine, resulted in intoxication. If that were the case, then the defence would not be able to be used.

The Hon. K.L. VINCENT: The point that I am attempting to make here is that that is a bit of a grey area, is it not, because ordinarily a person would not be intoxicated from consuming one glass of wine, but they might be if they mix that with Endone, which, in this context, is a therapeutic drug? Can you see the argument that I am making that it is a grey area because ordinarily that person is very unlikely to be intoxicated to that extent from one glass of wine, but it is the fact that it is mixed with the therapeutic drug that is causing that result? So, it is a bit of a chicken or the egg question, I suppose.

The Hon. P. MALINAUSKAS: The object of the bill in this particular instance is that if someone becomes intoxicated as a consequence of any recreational consumption of a drug, then the defence cannot be applied. So, in your instance, you are talking about where someone is taking both a therapeutic drug and a recreational drug, or the fact that they are consuming a recreational drug that results in intoxication, which results in them committing an act that is criminal in nature for which they might have been charged, then the defence cannot be applied. The simple message for people in those instances is do not mix the drug, which is in most instances, and particularly in the one you just described, most likely to come with advice saying do not do that.

The Hon. K.L. VINCENT: Speaking of another grey area—and after this I promise to leave the minister alone for a while—

The Hon. M.C. Parnell: Never promise.

The Hon. K.L. VINCENT: I should not promise, you are right, I should not make promises I cannot keep. You might nail it though, you might nail it. Can the minister just put on the record for the purposes of this debate: is medical cannabis legally defined as a recreational or therapeutic drug in South Australia right now, given what has happened on the federal level?

The Hon. P. MALINAUSKAS: The question, although interesting, is not particularly relevant to what we are discussing here because, as I said before, if medical cannabis was consumed in a way that was deemed to be therapeutic, that is, it was prescribed and consumed legally, it was taken in a way that was consistent with the prescription instructions, the dosage recommendations and so forth, then it would be deemed to be therapeutic and therefore the defence would apply—irrespective of the answer to your question, but nevertheless I am sure we can take that away.

The Hon. S.G. WADE: In the definition of 'therapeutic', though, it is consumed for a purpose recommended by the manufacturer. I am presuming the manufacturer in that context is the producer of the medical cannabis?

Members interjecting:

The Hon. S.G. WADE: It does not relate to illicit, it just says the manufacturer's instructions. The case the Hon Kelly Vincent is referring to—

The Hon. P. Malinauskas: Have you got a question?

The Hon. S.G. WADE: Yes: how can the manufacturer's instructions exclude medicinal cannabis because the manufacturers of medicinal cannabis say that you can take it for various purposes? Medical cannabis comes within the definition of 'therapeutic'.

The Hon. P. MALINAUSKAS: The therapeutic definition is that the consumption of a drug is to be regarded as therapeutic if the drug is prescribed by and consumed in accordance with the directions of a medical practitioner, or the drug is a drug of a kind available without prescription from registered pharmacists and is consumed for the purpose recommended by the manufacturer in accordance with the manufacturer's instructions.

So, in the case of medicinal cannabis, if it was prescribed by a medical practitioner, tick, the defence can apply. If it is issued without prescription by a registered pharmacist and is consumed in a way that is recommended by the manufacturer and in accordance with any instructions then, again, tick, the defence can apply. It is pretty self-explanatory, really.

The Hon. S.G. WADE: I would ask the minister to stop referring to this as a defence. My understanding is that this relates to the constituent elements of the offence. We need to know, at criminal law, whether or not a particular behaviour has constituted an offence. To talk about this as a defence undermines the basic principle of the criminal law, that you need to have both the act and the mind to have the act.

The Hon. M.C. PARNELL: This is something the minister might take on notice. Without wanting to rain on his parade at having nailed it before, I think I have come to the nub of where I think the minister is. The minister's arguments seem to be that only recreational drugs can fall within the definition of 'self-induced'. The reason the minister says that is that he refers to the new section 269A(3)—this is about a third of the way down page 5—and it might be a matter of drafting. What it says is 'Intoxication resulting from the recreational use of a drug is to be regarded as self-induced.' However, it is not an exhaustive definition. It does not say, 'Only intoxication resulting from the recreational use of a drug is to be regarded as self-induced and nothing else.' It does not say that—that is a matter of drafting.

My question to the minister is—just to make it really clear and on the record—is the minister saying that any therapeutic use of drugs, within all the definitions that the minister referred to before, that it was taken in the manner prescribed or on the label and that you have not taken too much of it, cannot be regarded as self-induced? If it cannot be regarded as self-induced, then it cannot be the subject of the exemption in section 269C. Do I have that clear or not: that the new subsection (3) of section 269A is an exhaustive definition?

The Hon. P. MALINAUSKAS: Yes, that is right. I did not say I nailed it, I said I was hoping I would nail it.

The ACTING CHAIR (Hon. J.S.L. Dawkins): I suggest that if the minister is going to do a one-word answer and he then sits down and adds to it that he would be better off doing it on his feet. I call the Hon. Tammy Franks.

The Hon. T.A. FRANKS: On a new topic, members will be incredibly surprised to hear that I am not going to ask anything about medical cannabis in these few moments. I want to explore one of the answers given about intoxication of a prescribed drug being temporary. Does that include the known side effects of that drug in that temporary definition or will the known side effects continue beyond the taking of a drug?

The Hon. P. MALINAUSKAS: Could you say that again, sorry?

The Hon. T.A. FRANKS: I will paint a word picture. There is a drug called Keppra, an anti-epileptic drug. The known side effects are many. Some of the most concerning are that the person taking it by prescription as directed becomes aggressive, angry, can develop personality disorders, can have insomnia, depersonalisation, paranoia, has loss of memory and has changes in behaviour including suicide attempts and violence. If somebody is taking Keppra, will the taking of that drug be treated as a temporary intoxication or will those side effects, which are well known and well recorded, be taken into consideration?

The Hon. P. MALINAUSKAS: I thank the honourable member for her question. Clearly, the example she just provided illustrates again the benefit of the therapeutic definition, because where somebody takes the drug Keppra to treat a condition, the drug was prescribed, consumed in a way that was prescribed or taken in a way consistent with the manufacturer's instructions for a registered pharmacist, or the like (this is with the definition), it would be therapeutic and the exemption would apply. That example is entirely consistent with all the other examples we have gone through thus far, including, potentially, medicinal cannabis.

The Hon. T.A. FRANKS: They are the side effects of that drug. They continue beyond the person taking that drug into the future, and that person is informed of those side effects. What responsibility do they have, being informed that they are the possible side effects for their behaviour into the future?

The Hon. P. MALINAUSKAS: To be honest, I am failing to understand the particular concern from the Hon. Ms Franks. If her concern is that someone consumes a drug, in this case Keppra, and there are side effects of that drug, and then those side effects occur in perpetuity for that particular patient and those side effects some time later down the track, however long, then result in their allegedly committing a criminal act for which they have been charged, would the exemption apply in that instance; is that the question?

The Hon. T.A. FRANKS: Yes, that is the question, and having been informed those are the side effects.

The Hon. P. MALINAUSKAS: So, in that instance my advice is that they would get the benefit of the defence, provided, of course, that the drug that caused those side effects was consumed in a way consistent with the definition of 'therapeutic', amongst other requirements.

The Hon. T.A. FRANKS: So, if a person who took, by prescription, any drug that has a range of side effects at any stage in their past, they could then rely on those side effects to be taken into consideration in the future; is that the case?

The Hon. P. MALINAUSKAS: Provided that the individual was able—in this case, presumably, that would be the accused—to demonstrate that the side effects were an impairment that resulted in the committal, and that the side effects were indeed caused by the consumption of the drug that was then issued and consumed in a therapeutic way, yes.

The Hon. T.A. FRANKS: But, if they actually carry acquired brain injury and have a drink, they will not have that ability to refer to a mental impairment should they commit a crime; is that the case?

The Hon. P. MALINAUSKAS: Yes, because under proposed new section 269A(4) it states:

If a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same or another drug, the intoxication is to be regarded as self-induced, even though in part attributable to therapeutic consumption,

So, yes, if the person consumed alcohol in that instance, it would be deemed to be recreational use and the exemption would not be able to apply.

The Hon. T.A. FRANKS: And that includes wine at church, does it? How small would the consumption of an intoxicating substance need to be? Would it include wine at church?

The Hon. P. MALINAUSKAS: That would be a question that would have to be determined by the court on the basis of the medical opinion being provided to the court to make that assessment.

The Hon. S.G. WADE: On the communion wine example that the Hon. Tammy Franks has brought up, again I do not have access to the advisers that the minister does, but does not subsection (4), which is in subclause (9), say that if it is a combined effect, both therapeutic and non-therapeutic, it can still be regarded as self-induced?

The Hon. P. Malinauskas interjecting:

The ACTING CHAIR (Hon. J.S.L. Dawkins): The Hon. Mr Wade.

The Hon. S.G. WADE: I believe I do have a point. If a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same drug, the intoxication is regarded as self-induced, even though in part it should be due to the therapeutic consumption. Your intoxicated use, if you like, contaminates your therapeutic use.

The Hon. P. MALINAUSKAS: Yes, that is right.

The Hon. S.G. WADE: I think that is a—

The ACTING CHAIR (Hon. J.S.L. Dawkins): I gather the minister does not wish to stand and respond. I call the Hon. Mr McLachlan.

The Hon. A.L. McLACHLAN: On a slightly related topic, back to the definitions of 'drug' and 'therapeutic' and the dance around the act as they all interplay, do all those definitions accommodate the situation where someone takes what comes under the definition of a drug consistently with the recommendation of the manufacturer at the time, but subsequently the manufacturer's recommendations change? Which does occur. Drugs are put out to the community on the shelf of the chemist and sometimes become prescribed later and there are changes in the prescription. Do the definitions take into account that change in causality at the time, when they are taking it in accordance with recommendations and they subsequently change? Do the definitions provide clarity?

The Hon. P. MALINAUSKAS: I do not think it would come as a great surprise to a learned individual like the Hon. Mr McLachlan that yes, if someone consumed a drug in a way that was deemed to be therapeutic at the point of their consumption, then of course it would be appropriate that the exemption apply. If subsequently down the track a manufacturer changed the rules, then so be it, but if at the point of consumption that person was taking it in a way that was consistent with their instructions and their prescription, then yes, they should be able to seek the exemption.

The Hon. A.L. McLACHLAN: I thank the minister for his answer. Is the minister's answer based on the construction of therapeutic in the amending bill before us, where at (b)(ii) 'is consumed for a purpose recommended'? I assume the construction is given that it is the moment in time of consumption.

The Hon. P. MALINAUSKAS: Yes, I think that would be a common-sense interpretation of the bill.

The Hon. A.L. McLACHLAN: Just to clarify, that is debate, that is the way the government is interpreting that provision? The minister said it was a common-sense construction. Is it the government's position that that definition of therapeutic and a situation, i.e. the example I gave, is accommodated by the words 'is consumed for a purpose recommended' is sufficient to accommodate a subsequent change in the manufacturer's instructions?

The Hon. P. MALINAUSKAS: Yes; my advice is that is right.

The Hon. S.G. WADE: I would suggest that, considering that I think more work needs to be done on clause 5, members might want to consider whether they want to make further contributions, because it would be my suggestion that we report progress.

Progress reported; committee to sit again.