Criminal Law (High Risk Offenders) (Psychologists) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 3.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 2, line 20 [clause 3(2), definition of prescribed health professional, (a)]—Before 'psychologist' insert:

qualifying

The amendment appears to be very similar to the government amendments filed at the very last minute this morning, but the SA-Best and the government amendments are quite different in very important ways, and I wish to outline that for the record. The government amendments filed today are an attempt to slip in, under the radar, I should say, a significant watering down of the amendments that I have proposed. Amendment No. 1 [Bonaros-1] to clause 3 inserts the word 'qualifying' before the word 'psychologist'.

When dealing with high-risk offenders, the courts have until now drawn upon a small number of highly qualified and experienced forensic psychiatrists, as we have heard. Under this bill, it is proposed that psychologists will be able to provide expert opinion, assessments and reports for the courts, pursuant to the CLCA and the high-risk offenders act. It is therefore very important that we do not have just anyone who calls themselves a psychologist being able to complete these assessments and reports for the courts.

We cannot have a psychologist who has only recently completed their studies or who has specialised in an entirely different field or doing different things doing these reports. The expert reports prepared by forensic psychiatrists and forensic psychologists are relied on not just by the courts but, ultimately, by us as a community to provide us with some certainty and confidence that the potential danger and risk that these offenders pose to their victims, the community and themselves has been properly assessed and, most importantly, has been determined by the court as able to safely manage.

If these reports are not up to scratch—that is, they are not completed by experts with relevant specialised knowledge, based on their training, study or experience—and their opinion is not based on that specific knowledge then the reports will likely be ruled by the court to be inadmissible, which of course will contribute to an even greater backlog than the current delays the legislation is designed to address.

The government amendment accepts and incorporates amendment No. 1 [Bonaros-1], in that it does not propose that it be deleted. In relation to amendment No. 2, after the definition of 'psychologist', the amendment that I am proposing inserts:

qualifying psychologist means a psychologist who—

(a) has at least 5 years experience as a psychologist; and

(b) has an endorsement from the Psychology Board of Australia as a forensic psychologist; and

(c) has, in the opinion of the prescribed authority, sufficient experience as a forensic psychologist to properly carry out functions as a prescribed health professional;

As a general comment on my amendment No. 2, I ask members to note that, importantly, this amendment has 'and' between all of the provisions. We see this as a safeguard and as essential rather than the either/or options. The government amendment [Treasurer-1] amends amendment No. 2 [Bonaros-1] in very significant ways.

Firstly, consistent with my amendment, it has been recommended by the experts working in this field, including psychiatrists, psychologists, the legal profession and the courts, that a qualifying psychologist should have at least five years' experience. So these are not my thoughts, these are recommendations that have been made by experts working in the field: by psychiatrists, by psychologists, the legal profession and, indeed, the courts.

Importantly, this clause has an 'and' at the end, indicating that all of the provisions of this amendment, (a), (b) and (c), are conditions that have to be met. The government amendment filed today leaves this provision (a) in place, and we think that is a very sensible decision. Similarly, a wide range of experts have advised us that a qualifying psychologist should be endorsed by the Psychology Board of Australia as a forensic psychologist. We see this professional recognition as essential. Importantly, this clause has an 'and' again at the end, indicating that all of the provisions following in this amendment are to be met, that is, (b) and (c).

The government amendment filed today retains this provision but it makes it optional to have either (b) or their amended (c) met; that is to say they do not need to meet all three requirements. We say that both (b) and (c) are the minimum acceptable protections we need to legislate.

There are two more important elements of subclause (c) of this amendment: first, as noted above, this provision is not optional, that is, it is added to and is an essential adjunct to (a) and (b). Secondly, a qualifying psychologist must have, in the opinion of the prescribed authority, sufficient experience as a forensic psychologist to carry out the functions as a prescribed health professional. We are not satisfied with this provision being optional: our amendment articulates that it must be met.

Just as significantly, we are not satisfied with the government amendment of the psychologist having to have only sufficient experience in the forensic mental health field. Our amendment requires them to have sufficient experience as a forensic psychologist. The mental health field is quite a different and generalised field and is not to the standard or level of expertise we require for this critical role.

We already have a range of allied health professionals, such as forensic nurses and mental health workers, in the Magistrates Court to try to divert and assist lower risk offenders with less complex cases, but their function is entirely different from that required of these assessments and reports relied upon by the higher courts in relation to, once again I will highlight, high-risk offenders.

If we are to accept having forensic psychologists who cannot, after all, prescribe medications or comment on their efficacy, particularly in regard to serious sex offenders, then we need to have appropriate safeguards in place. The government amendment seeks to water down these protections to an unacceptable level, in my view.

If, as the Treasurer has suggested, we are to provide a model that gives sole discretion to one person, Dr Nambiar, the very least we could do is give that one individual a suitable pool to choose from, a pool that is based on various levels of expertise. I do not think it is a big ask and I dare say that we have done it many times in this place, probably where the stakes have not been remotely as high as the one before us dealing with high-risk offenders.

The Hon. R.I. LUCAS: The government supports this amendment and thanks the Hon. Ms Bonaros for her interest and engagement with the objects of the bill. On behalf of the government, I will have more to say about what the member has talked about, which are subsequent aspects of her package of amendments, when the council turns to the next amendment in this set.

The Hon. K.J. MAHER: We support the amendment.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–1]—

Page 2, after line 26 [clause 3(3)]—After the definition of psychologist insert:

qualifying psychologist means a psychologist who—

(a) has at least 5 years experience as a psychologist; and

(b) has an endorsement from the Psychology Board of Australia as a forensic psychologist; and

(c) has, in the opinion of the prescribed authority, sufficient experience as a forensic psychologist to properly carry out functions as a prescribed health professional;

I have effectively spoken to this amendment already. For the reasons I have just outlined, I am hoping that we could see fit to pass this amendment as printed.

The Hon. R.I. LUCAS: My advice is that we will be supporting this amendment, but we will then be moving our own amendment subsequently. Therefore, I move:

Amendment No 1 [Treasurer–1]—

Amendment to Amendment No 2 [Bonaros—1]—Clause 3, page 2, after line 26 [clause 3(3)]—Delete paragraphs (b) and (c) of the definition of qualifying psychologist and substitute:

(b) either—

(i) has an endorsement from the Psychology Board of Australia as a forensic psychologist; or

(ii) has, in the opinion of the prescribed authority, sufficient experience in the forensic mental health field to properly carry out functions as a prescribed health professional;

In so doing, I address the government's response to the Hon. Ms Bonaros' amendment but also, more importantly, why we believe the government's amendment as well needs to be supported. The government has no opposition in principle to a provision of the nature proposed by the Hon. Ms Bonaros. However, after consultation with the current clinical director of the Forensic Mental Health Service, South Australia, Dr Narain Nambiar, the government prefers a slightly reformulated set of criteria for a qualifying psychologist and has filed its own brief amendment to Ms Bonaros' amendment. On behalf of the government I give my reasons for preferring the government's amendments at this time, although I appreciate that if the council does not pass the first amendment of the Hon. Ms Bonaros then the government's own amendments are moot.

As members would know, the bill proposes to enable the prescribed authority to nominate registered psychologists to prepare reports for the Supreme Court under the high-risk offenders legislation thereby freeing registered medical practitioners who are psychiatrists to do the more complex reports under this and other legislation. The regulations provide that the prescribed authority is the person who holds the position of Clinical Director, Forensic Medical Health Service, South Australia.

Unlike the amendment of Ms Bonaros where a qualifying psychologist would have five years' experience as a psychologist and an endorsement from the Psychology Board as a forensic psychologist and sufficient experience as a forensic psychologist in the opinion of the prescribed authority, the government's preferred version would require a qualifying psychologist to have five years' experience as a psychologist and either an endorsement from the Psychology Board as a forensic psychologist or sufficient experience in the forensic mental health field in the opinion of the prescribed authority.

I should make it clear to members that the government's preferred version has been arrived at following advice from Dr Nambiar to the Attorney-General's Department as to the qualifications that he would look for in the psychologists that he would nominate to perform these functions. Dr Nambiar considers that he should have the discretion to nominate a psychologist who has sufficient experience in the forensic mental health field notwithstanding that they do not also have an endorsement from the Psychology Board as a forensic psychologist. Dr Nambiar has advised the department that it is not necessary in every case that a psychologist meets both of those criteria, as some very experienced forensic psychologists do not also hold an endorsement from the Psychology Board. That is the nub of the difference.

The government's position is based on the professional expertise and reputation of the Clinical Director, Forensic Mental Health Service, South Australia, and that is Dr Nambiar. He is saying that he believes, in his professional advice to the government, that it is not necessary in every case that a psychologist meets both of those criteria because there are some very experienced forensic psychologists who do not also hold an endorsement from the Psychology Board. His advice to the government and through the government to the committee is that if the amendment of the Hon. Ms Bonaros was to hold sway some very capable people that he would want to appoint would be excluded from the pool.

The honourable member is saying, 'Hey, we should define a pool and you should only select from that pool.' He is saying that the definition of the pool that the Hon. Ms Bonaros is defining excludes a group of people who, in his professional expertise and experience, are extraordinarily capable people who he believes should be appointed.

The government regards the formulation of the Hon. Ms Bonaros as somewhat excessive. Any psychologist used to prepare reports would be selected by Dr Nambiar. This decision will be based on a range of factors, including the mental health history of the offender and the professional expertise of the pool of psychiatrists and psychologists available to Dr Nambiar. This provides an assurance that, if a psychologist is nominated rather than a psychiatrist in a particular case, the psychologist would have suitable expertise and knowledge regarding high-risk offenders.

It is important also for members to note that, after being nominated by the clinical director, the psychologist would be preparing those reports under the supervision of the clinical director. For these reasons there is very little real risk that a report from an inadequately experienced or qualified psychologist would be used in the court and result in the continuing supervision or detention of an offender without a proper evidentiary basis for doing so.

Also, as the Chief Justice wrote when consulted on the bill by the Attorney-General, the weight to be given to individual reports is quite properly a matter left to the court; therefore, as members will see, there are already sufficient checks and balances in the system to minimise the risk that inexperienced and unqualified psychologists would be preparing reports for the Supreme Court under this legislation.

The amendments of the Hon. Ms Bonaros could in fact be counterproductive by unnecessarily fettering the discretion of the prescribed authority—that is, Dr Nambiar—to select the best psychologists for the particular circumstances. That could adversely affect the quality of reports provided to the Supreme Court and could compromise the protection of the community from these dangerous offenders. I therefore urge honourable members to support Ms Bonaros's amendment but then also, importantly, to support the government's amendment of her amendment.

The Hon. K.J. MAHER: I thank the Hon. Ms Bonaros for bringing these amendments to us. I can indicate that we will be supporting her amendment, then, in order to support the government's amendment to the amendment.

The Hon. R.I. Lucas's amendment to the Hon. C. Bonaros's amendment carried.

The Hon. C. Bonaros's amendment as amended carried; clause as amended passed.

Remaining clauses (4 and 5) and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.