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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-06-02 Daily Xml
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MENTAL HEALTH BILL

Final Stages

Consideration in committee of the Legislative Council’s amendments.

The Hon. J.D. LOMAX-SMITH: This bill has now passed both houses, with agreement on the vast majority of the provisions. The bill is central to the reforms this government is putting in place in the mental health system. These include the limited treatment centres, which will be so important in regional areas of South Australia, as well as enabling community treatment orders as a first option to be put in place for those who become unwell. In addition, it introduces accountability through the position of chief psychiatrist, ensuring that there be monitoring and quality control in our system.

Members have recognised the importance of the bill in their contributions to the debate, and I thank them for their comments. At the same time, the government has been prepared to support amendments that add value to the bill by either clarifying the intent of certain provisions or enhancing accountability and transparency in the operation of the mental health system.

I will discuss each of the amendments that have been added in another place but I would say that, in regard to the increase in fines, the government is prepared to accept those amendments. These fines are primarily to provide a disincentive to people contemplating doing the wrong thing and, in the interests of the passage of the bill, we will agree to the amendments regarding these increased fines.

Members in another place have also supported amendments to establish a community visitor scheme in the bill rather than as was proposed in the regulations of the bill. The government will support these amendments in the interests of facilitating the passage of the bill.

It has previously been made clear that the government supports in principle the establishment of such a scheme, but did not wish to restrict it only to the mental health system and the facilities that are the responsibility of the Minister for Mental Health and Substance Abuse. However, as a first step towards the establishment of a community visitors scheme with a broader focus on the range of people who are vulnerable because of their inability to makes decisions, the government will accept the amendments regarding the visitors scheme with a minor amendment.

The provisions for a community visitors scheme currently in the bill require that, for the purposes of any visit to a treatment centre, one of the community visitors must be a medical practitioner, a psychologist, a former medical practitioner or a psychologist. To require that one of the community visitors is in these categories is unnecessary and is likely to build into the scheme a degree of inflexibility which would hamper its development and practice. As far as I know, these qualifications are not required anywhere else in Australia, and I believe therefore that other jurisdictions would have recognised this impediment to this operation in this way.

It is certainly not the role of community visitors to second guess the medical treatment a patient is receiving. It is the role of a visitor to talk to the patients and ascertain whether or not they have any concerns about how they are being treated within the facility in the broader sense of the word and not just in regard to their medical treatment. Across Australia community visitors come from a range of backgrounds. However, one of the key characteristics they must have is a degree of empathy with patients and the capacity to engage them in discussion. A background in either medicine or psychology may be of assistance but is not necessary for this.

A range of professions currently contribute to the mental health system, and a background working in the system is not a necessary prerequisite for being a competent community visitor. Community visitors will be specifically trained for the role they are to undertake, and to require a particular professional background for some of the visitors is more likely to be a barrier to the establishment of a successful scheme than an advantage. The government is therefore prepared to accept the amendments regarding the introduction of the scheme but with the deletion of the provision requiring one of the visitors to be a current or former medical practitioner or psychologist.

The government is not prepared to agree to the amendment that establishes the offence of harbouring or assisting a patient at large. The impetus for this amendment has come, I understand, from a Coroner's report into the death of an individual. The Minister for Health and I receive many recommendations each year from the Coroner and, whilst we respect his office, in determining whether or not particular recommendations should be adopted the relevance of the recommendation to the broader system has to be considered. In this case the recommendation will not be accepted as it is not consistent with the policy intent of the bill.

To clarify, harbouring is currently an offence under the Criminal Law Consolidation Act, an act obviously concerned with criminal behaviour. The Mental Health Bill, however, does not deal with those people who have been charged with a criminal offence and who use mental impairment for their defence. The bill is nothing to do with the criminal law as such. It aims to assist in reducing the degree of stigma still attached to mental illness and provide a means of helping people with their recovery.

The bill already establishes an offence in clause 98 of removing patients from treatment centres. If the harbouring offence were to remain in the bill, the reality is that it is the family and friends of the patient who are most likely to come within the ambit of the offence. If a patient leaves a treatment centre without permission, South Australia Police actively search for them. They are not just listed as a missing person but are actively sought. There are many reasons why a person in the community may provide accommodation or other assistance to a patient who has left a treatment centre without permission. Many well-meaning relatives, perhaps not speaking English as a first language, may be trapped without intent to be reckless, as recognised within the amendment.

People with serious mental illness can be very compelling in the arguments they may advance as to whether someone should help them. Elderly parents may be threatened by the patient and provide assistance because of fear. Aboriginal extended families may be more likely than other families to be caught up in the harbouring offence if it were to remain because of the extensive obligations to kin that are part and parcel of their family obligations.

If someone has left a treatment centre without permission, it is important that they return as soon as possible, and educating the community about why this is important and why it is sometimes necessary for someone to be placed on an order that involves a remission and treatment is likely to be more effective in the long term than criminalising the family and friends of people with mental illness.

Ian Bidmeade, the author of the report 'Paving the Way', which has provided the basis for this bill, is not supportive of the amendment made in another place. He said:

The last thing families dealing with the stress of mental illness need is a threat of prosecution for the very human behaviour of trying to protect a family member, albeit inappropriately. The legislation needs to reflect an understanding of the traumas of mental illness and avoid being punitive.

Other individuals and organisations with involvement in the mental health system, such as the Australian Nursing Federation and the Health Consumers Alliance, have expressed similar concerns, and it is for that reason that we oppose this amendment. The Mental Health Bill is not intended to further penalise and traumatise the families and friends of the seriously mentally ill: it is designed to assist them to obtain treatment and other help so that they can return to the community and lead their own lives. For these many reasons, this particular amendment is not supported by the government.

To summarise, the government will accept amendments Nos 1 to 13. We wish to delete subclause (3) in new clause 49C (part of amendment No. 14) relating to psychologists and medical practitioners. We agree to accept amendments Nos 15 to 23 and 25 to 29, but oppose amendment No. 24 relating to harbouring.

The CHAIR: Minister, can I conclude then that you are now formally moving that amendments Nos 1 to 13 be agreed to?

The Hon. J.D. LOMAX-SMITH: Yes.

Amendments Nos 1 to 13:

The Hon. J.D. LOMAX-SMITH: I move:

That the Legislative Council's amendments be agreed to.

Ms CHAPMAN: I place on record the opposition's appreciation of those members in another place who have obviously carefully considered both the merits of the legislation proposed generally and their overall endorsement, as we have in this place. They have presented a number of amendments, and it appears that the government has identified that it will accept some and reject others. In view of the manner in which the government has dealt with this, I note its acceptance of the fine increases, and I do not think that requires any further comment.

The two matters I wish to address are the proposals of the government in respect of the community visitor scheme. Those in another place supported Ian Bidmeade's very strong recommendation in his report that there be a community visitor scheme. The government had wholesale rejected that as being part of the bill. As repeated by the minister here today, the government's argument was: 'We would leave it up to regulation, because we want this to have broader application in respect of areas other than mental health.' That is not an excuse. Clearly, it must be in the legislation, and we are pleased that the government has accepted that it now be in the legislation.

The minister raises the point that it would be inappropriate to require that one of those visiting be a former medical practitioner or a psychologist and that that requirement is not one that is imposed in other jurisdictions where community visitor schemes apply. Overall, the opposition has been very supportive of having a community visitor scheme. I think that there is some merit in what the minister says about that being, on balance, not as necessary. We say that it is very important to have the community visitor scheme in the framework of the legislation, and note that the minister's statement that those who will be undertaking a visitor scheme responsibility will be specifically trained provides some reassurance to the opposition.

We are keen for the bill to pass in this parliament. The government has indicated a number of areas of importance, including, central to the reform, the capacity for limited treatment centres to be ordained and to be able to apply, and this is a matter about which the opposition is completely in support of the government. It is on that basis that we accept the government's position in relation to the amendment in question, which will essentially allow the community visitors scheme to be part of the legislation. However, the requirement of a specifically qualified person will be deleted. In the interests of ensuring this bill is passed, the opposition will support that position.

The final matter is one which perhaps has not had the most attention during debate but is one that has been elevated to a point of difference—that is, the question of whether a penalty should be imposed for someone who harbours a person who absconds from a secure facility. I ask members to bear in mind that, particularly with the introduction of the new legislative framework that will operate, we are talking about a very narrow band of people in the community—people who are unwilling to undertake treatment—with the opportunity for community treatment orders to provide a new structure that will ensure secure care or detention in very limited circumstances.

However, the minister says that to impose a penalty on a person who may harbour someone in these circumstances penalises or traumatises those involved, and makes it comparable to the Criminal Law Consolidation Act, in which there is a harbouring offence. The minister also says that the people who will be harbouring that person are most likely to be family or friends. The opposition takes the view that, first, it is not exclusively in the criminal arena. One of the most important areas which does not involve criminal conduct of the absconder is that of children running away from home. There is the situation—and it is always a difficult one—where children run away from home to avoid a dangerous or abusive situation, and they are then at risk in the community, homeless or otherwise. As much as possible, Family and Community Services are there to support and protect them and in some circumstances, depending on age or vulnerability, they are taken into care by the department or by a representative of the department under that legislation; sometimes they are taken under the guardianship of the minister.

Ted Mullighan QC, who undertook a commission on behalf of this parliament to investigate children who were victims of abuse, particularly sexual abuse in institutions and other places, made very clear recommendations—many of which have not yet been acted upon. Obviously, the opposition hopes the government will give credence to these and will, as it has indicated, give legislative enforcement to those recommendations. It was very clear in that report that children who are left in the street are at risk, and one of the ways Mr Mullighan recommended dealing with that was to ensure that when anyone harboured a child in circumstances where the child was at risk there ought to be some criminal prosecution and penalty attached to it.

To all intents and purposes, the child in this example has not done anything wrong; they may be fleeing from a very unsatisfactory or dangerous situation. We are not criminalising or penalising that child and saying that we will put them into a criminal situation. Ted Mullighan QC said this is not safe for children and that we must protect them, and one of the mechanisms to do that is to introduce a penalty for a person in the community who harbours that child contrary to the child's best interests and contrary to any direction that may be imposed by an authorised officer, usually through the Department for Families and Communities.

This is not a unique situation; it is not one (as the Australian Nursing Federation, for example, has presented to me and others in the opposition) that criminalises, demonises or continues to perpetuate the act of harbouring as though it must involve some criminal element as regards the escapee. No; that is not it at all. It is to protect that person. It is to protect, in this instance, a person who has, for whatever reason, been unwilling or unable to undertake treatment; who has been deemed by the medical professionals—and others who are going to be authorised under this bill—to be in need of secure care for their protection and recovery. That is what this is about. If someone in the community acts contrary to that, just as they might with a child, with the legislation that we hope to introduce to protect them, just as they might in harbouring a criminal, it is necessary to protect that person.

When the minister says, 'But, look, it's family and friends who are often left to provide for these people,' that is absolutely right. However, in the cases that have come to me, many of them want protection against the person who has absconded. It may be a family member. It may be the last of the family members to give them support. Often, as we know, when persons get to the stage of mental ill health where they need to have secure care, they are in desperate circumstances. Often their families and friends have given up on them and they hardly have a person in the world to care about them. They may go to the only person who is left and ask for accommodation and to be able to stay with them, and that person is really impotent to deal with the situation.

This will give the opportunity for a friend or relative, under this pressure, to say to the patient, 'Look, this is not safe for me either. You do need to return. You need to be able to go back and get this care. This is what has been identified. I know you take a different view but I will get into trouble, too, unless you do this.' In fact, this is a very important tool for the relative or friend who has been faced with the vexed question of whether they turn in the person who has come to them as a last resort. Quite the contrary, the opposition takes the view that it is very important. It is not lining up these people who are harbouring somebody as though they are harbouring a criminal; it is to ensure that we do everything possible to eliminate the capacity for the recalcitrant patient to avoid the secure care and treatment that has been directed to occur in the very limited circumstances that we have identified.

We see this as a protective mechanism. As I have indicated, it is a strong recommendation, made in other fields, by Commissioner Mullighan. He has looked at the circumstances, which I put in a similar category, of an innocent child who has left a home situation and is at large and at risk, as far as he is concerned dangerously so, and needs protection. If someone harbours that child in those circumstances that is an offence which is being proposed. We say to the government that this is an important matter and it is one which we would ask it to revisit, namely, to accept that this will be an instrument to assist in what is already a difficult area; to ensure that the professionals who are brought in to provide assessment, judgment, support, service and treatment in these matters actually have that support; and to ensure that people in the community have an obligation to ensure that occurs. The opposition will be opposing the government in its rejection of this amendment.

Motion carried.

Amendment No. 14:

The Hon. J.D. LOMAX-SMITH: I have made this point and I think the honourable member has agreed with amendment No. 14. We seek to delete subclause (3) of new clause 49C. I move:

That the Legislative Council's amendment No. 14 be agreed to, with the following amendment:

Delete subclause (3) of new clause 49C.

Motion carried.

Amendments Nos 15 to 23:

The Hon. J.D. LOMAX-SMITH: I move:

That the Legislative Council's amendments Nos 15 to 23 be agreed to.

Motion carried.

Amendment No. 24:

The Hon. J.D. LOMAX-SMITH: I move:

That the Legislative Council's amendment No. 24 be disagreed to.

I think we have had enough discussion on this matter. I understand the points that the deputy leader has made. We do have a point of difference on this issue in that we believe that—to keep faith with the experts in this area and those who know about mental health issues—it would not be appropriate to retain the issue of harbouring as recommended by another place. Therefore, we disagree with that amendment and seek to delete it.

Motion carried.

Amendments Nos 25 to 29:

The Hon. J.D. LOMAX-SMITH: I move:

That the Legislative Council's amendments Nos 25 to 29 be agreed to.

Motion carried.

The Hon. J.D. LOMAX-SMITH: Madam Acting Speaker, I draw your attention to the state of the house.

A quorum having been formed:

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