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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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MENTAL HEALTH (REPEAL OF HARBOURING OFFENCE) AMENDMENT BILL

Second Reading

Second reading.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (15:48): I move:

That this bill be now read a second time.

I will not hold the house up for very long. During the debate on the Mental Health Bill, the opposition moved an amendment to create an offence of harbouring or assisting a patient at large. The amendment was opposed by the government at the time. However, the inclusion of section 105 was made a condition by the opposition of passing the legislation, as I understand it—I was not the minister at the time—as a whole. I gather that was what the majority wanted in the upper house.

The Hon. Tammy Jennings has sought to remove that harbouring provision and we are fully supportive of the amendment, because that accords with our original position. The amendment which was put in at the time and which is now part of the legislation creates an offence of harbouring or assisting a patient at large. The penalty for this offence is $25,000 or two years imprisonment. Section 105 of the Mental Health Act of 2009 is not in any way consistent with the philosophy of the act generally or the contemporary provision of mental health services in South Australia.

Modern mental health law does not equate mental illness with criminality. The Mental Health Act of 2009 is about providing the best care and treatment to people who have had very serious mental illnesses, with the goal of bringing about their recovery. Excuse me, folks.

The DEPUTY SPEAKER: Is that just a bit of chitchat? The minister might be saying something a little fascinating. In fact, I have been listening very carefully, and he is saying something fascinating.

The Hon. J.D. HILL: I am talking about mental health.

The DEPUTY SPEAKER: That is actually a very important subject, so no chitchat in the background.

The Hon. J.D. HILL: That's right. 'Harbouring is a term that is generally associated with prisoners and is a completely inappropriate description for the individuals who may provide accommodation for a patient who has left a treatment centre. These people are not criminals. If the opposition and others who supported this clause had spoken to mental health clinicians, carers and consumers, they would know that the provision has a very damaging effect and is not supported, as I understand it, by those groups.

The act is concerned with supporting those people who often provide the most care to people with mental illness: their families, carers and friends, yet it is these people who are likely to be captured under section 105 and who would have been imprisoned. That has been the point made in a variety of briefings by carers' organisations and the executive director of the Mental Health Coalition of South Australia.

Under the original amendment to section 105 moved by the opposition, the parents of a mentally ill person, for example, could become criminals simply because their son or daughter arrived home. This was an appalling amendment that the government, unfortunately, was forced to accept as a condition of getting the bill through. I think the opposition parties at the time were mistaken to move the amendment in the first place and, unfortunately, they are maintaining their position in relation to this amendment. It is now been through the upper house.

Educating the community about the health issues and the need at times for people to be placed on detention and treatment orders is a preferable approach to that of criminalising the families and friends of patients by retaining the harbouring clause. Even if the offence provisions in the act are designed to act as a deterrent rather than provide the basis for prosecutions, there is no clear rationale for retaining the offence of harbouring in the act.

I have received correspondence from family members of mental health patients asking me to support the removal of this section. Their concerns arise from the fact that, if their relative were to leave a treatment centre and return to their family and friends—people they believe they can rely on to protect and nurture them—then those very same people who are providing that protection could be fined, imprisoned or further stigmatised as criminals.

Worse, I guess, they are likely, if they were nervous about being sentenced, to say that their son or daughter who has arrived in the middle of the night seeking harbour and protection, 'I'm afraid I'm going to have to call the police.' Then, the person with a mental illness is likely to leave, and God knows where they would go and what circumstances they might end up in. There is also the possibility, of course, that a patient may not be honest and tell their family, friend or carer that they have legitimately been given leave by the treatment centre or have been discharged.

Families have also expressed concern as to whether they will be deemed to have been 'recklessly indifferent' if they fail to contact the police to check if their relative has left a treatment centre without permission each time their relative turns up on their doorstep, distressed or end need of comfort. Even if family and friends may know of the person's mental health condition or their detained status, they cannot necessarily prevent the person from coming to see them.

Relatives of people with mental illness have told me that they fear that, if they refuse to allow the person to re-enter their home or are forced to contact authorities immediately so as not to risk breaching section 105, it will escalate what may already be a sensitive situation. Such action may serve to break down trust between the mentally ill person and those people with whom he or she previously felt safe.

In fact, the mentally ill person may be left with no-one he or she considers safe or may interpret the situation as the family, friends or carers having turned against them. The mentally ill person may see this as evidence to support any paranoid delusions or beliefs which could escalate the situation to violence and self harm. Far from protecting the mentally ill person, retaining section 105 could increase the risk of harm to the patient and others.

If a family, friend or carer is uncomfortable about having a patient who has left a treatment centre in their home, of course there is nothing preventing them from contacting authorities straightaway, but it should not be legislated that they must. Often families, friends and carers with a history of contact with the person are best placed to assist the approach that would provide assistance and reassurance to the patient to encourage them to return to the treatment centre.

I think if, as the Hon. Tammy Jennings has done, the opposition had consulted with Carers SA, the Mental Health Coalition and the Health Consumers Alliance prior to the insertion of section 105, they would be aware that those groups were not supportive of its inclusion in the act. Mr Ian Bidmeade, who, I understand, wrote the report 'Paving the way' which informed the provisions of the Mental Health Act 2009 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.

Section 105 is not congruent with the philosophy underpinning the Mental Health Act 2009. It will serve no useful purpose for people with serious mental illness and their families, friends and carers. All it will do is harm both the family and the patient, particularly if the patient's key supporter is imprisoned for assisting them. It is not consistent with a contemporary approach to mental health care and consequently it should be removed from the act.

I certainly indicate the government's strong support for this measure which, as I say, I am moving on behalf of the Hon. Tammy Jennings in another place. The Hon. Tammy Jennings moved this and it was one of her first announcements. I understand that she worked in the mental health area prior to coming into parliament and she is to be commended for moving this. I checked through the debate in the other place and I note that the Liberal Party opposition indicated that it did not support the change; nonetheless, they did not cause a division (which I thank them for) and the matter went through on the voices.

I do not know who in the upper house changed their vote from last time to this time, but the Hon. Tammy Jennings was obviously very good at getting that matter through, so I congratulate her for it. It is a rare achievement for a member of a minor party or a backbencher to change the law, and for them to do it in the first session of a new parliament after their election is quite a feat and I congratulate her for it. I commend this change to the house.

Dr McFETRIDGE (Morphett) (15:58): I am the lead speaker for the opposition on this bill. We will not be supporting this amendment. It was moved by the opposition in the debate in 2009. The last thing that I or any member of the Liberal Party want to do is to put the fear of criminal prosecution into the minds of families whose relatives or friends are mentally ill.

My father's first job when we came to Australia in 1954 as £10 Pommy migrants was to work at Z ward in what was then the Parkside asylum. He was a military policeman in the Royal Marines, my dad, and the first job he could get here was as a psych nurse in Z ward. I remember quite vividly the stories he told me about the way mental patients were treated back then—the fitting of straitjackets, electroconvulsive therapy, the fairly bizarre ways (such as bondage and other things) in which mental patients were treated in those days.

It is completely wrong to say that that is acceptable now; it was what was acceptable at the time. However, what we are looking at now is new legislation and new language. Something I have had to tackle a little is the language that is being used. We do not want to stigmatise in any way people who have a mental illness, because they are ill. They are not bad and they are not mad. They are ill, and they need to be given every opportunity to get better in the same way as anyone with a physical illness.

We have cooperated as much as we possibly can with the government in changing the mental health legislation to move with the times. In relation to this particular amendment, if it is such an important thing to do, why didn't the government do it between now and when the bill was assented to. Anyway, the Greens are doing it, and the government is backing the Greens. So, all is moving forward, to use that colloquialism.

However, I need to put on the record why we did this, and it goes back to October 2008. There were four recommendations in a Coroner's report on the death of a man who had been a mental health patient, and the first two were about changing protocols and methodology in the mental health wards of hospitals. One recommendation was about the police should not recognise absconded mental health patients (that is the Coroner's words) as missing persons and that they should be recognised as being persons who are 'unlawfully at large and liable to be apprehended under the law, and the necessary vigour should be brought about to facilitate their return'. That has happened, and the police have changed their protocols.

The Coroner's third recommendation in 2008 was that the Attorney-General or the Minister for Health consider introducing legislation that would render it an offence to knowingly assist an absconded detainee under the Mental Health Act 1993, as it was then, to avoid apprehension. That is what this is all about. The Coroner, who I know has a much broader understanding of the legal ramifications of this legislation if it were to be introduced and enacted, and it has been, would understand that this will have some ramifications, but, for the greater good, this was a necessary thing to do.

I am not a lawyer, and I am boasting not apologising there. I think the member for Bragg will be speaking after me about this measure. I know she is going to explain the legalese around 'knowingly or being recklessly indifferent to harbouring someone who has absconded from a mental health treatment centre'. It is very, very important that we do not stigmatise mental health patients because they are ill. The last thing we want to do is to make relatives and friends of people with a mental illness feel in any way that they are criminals.

However, I do think they have an obligation to assist in returning people who are ill and who have been put under a detention order to the treatment centre. That does not mean that it has to be then and there, that they cannot have a cup of tea, bring them in out of the rain and look after their general welfare. However, in the interests of people who have been put under a detention order (these people are very, very ill and are incapable of making decisions for themselves regarding their illness, so they have been detained by well qualified professional people), they need to be returned to the treatment centre as soon as possible. That is what this is about.

In April 2009, the Liberal Party moved the amendment in the upper house, and at that time the government did not have the numbers and the amendment got up. The then minister, Jane Lomax-Smith of honourable memory, said that they would accept the amendment for the sake of expediency. None of this should be done for the sake of expediency. If it is wrong, then they should have objected; they did not. It is interesting that the government has allowed the Greens to make the move on this, and it is following along and supporting it.

We can count on this side and we know where the numbers lie but, if section 105 is such a terrible thing, why did the government not do it earlier? If section 105 is such a bad thing, why are we not looking again at section 60, where it is an offence to hinder or obstruct an authorising officer? By having somebody in your home and not notifying the authorities—I note that the minister said you should phone the police. Ask Leon Byner who you should phone; ask anybody out there. It should not be a police matter. It should be mental health staff going out to help these people come back to receive the treatment they deserve and they need. It should not be the police.

We need to make sure that we give these people the very best treatment. Under section 60 it is an offence to hinder or obstruct, so hiding somebody or not telling the truth about their whereabouts is an offence, and that is staying in there, and that is up to a $25,000 fine. So, if section 105 is so bad, then what about section 60? Should we not be looking at that and section 104? If section 105 is such a bad thing then why is it an offence to assist a detained person to leave a treatment centre, with a similar penalty of $25,000?

If it is an offence to harbour somebody in your home, and the government thinks that is such a bad thing, or perhaps if you are well meaning and you think that the detained person is better off with you and you want to help them get out of the treatment centre, you might think that is the best thing for that person, but it is an offence, and it is an offence punishable with a similar penalty to a section 105 penalty of up to $25,000.

I will admit that I personally have difficulties with a two-year gaol sentence being added on to the penalty in section 105, and why that is there I do not know. It may just be for legal drafting. It is so important that we make sure that people who are detained under the Mental Health Act are given the best treatment possible, and that treatment should not be interrupted if the person who has been receiving that treatment absconds, probably through no fault of their own, because they do not comprehend what is going on with them.

Even that word 'abscond': that is the word that the Coroner has been using in his report. I know the minister does not like the word 'abscond', and it does have some connotations to it. When you are detained, that is a legal thing to happen to you. You have to stay, you have to be there, so when you leave, I suppose 'absconding' is an appropriate word to use. It does have some stigma attached to it, and I suppose we are trying to move away from that, but in the Coroner's report that is the word he used.

The Coroner, in his report talking about detention orders, points out that detention orders are made for the patient's own health and safety or for the need for the protection of other people, including the general public. We must also remind ourselves that these people are extremely ill, and sometimes they do not understand the consequences of their actions, and that may be personal harm or threats of harm to others. We have to make sure that we do something about protecting these people from themselves as well as protecting the general public.

The new Mental Health Act is a big step forward, as I have said. We do not want to go back to 1954 and the Z ward and straitjackets. We do not want that. We want to make sure that we are moving forward. I think section 105—as I said, the member for Bragg will broaden the house's knowledge on the meaning of 'knowingly or recklessly indifferent'—is not as draconian as people try to make it out to be.

I think people who are living in fear of being thrown in gaol because they keep their friend at home for a cup of tea or give them a bed for the night are sadly misinformed. The perception is that that may happen, but the reality is that that is not the intent of this part of the legislation. It is good legislation and it should be maintained in here, but we can count.

Ms CHAPMAN (Bragg) (16:10): I rise to speak to the Mental Health (Repeal of Harbouring Offence) Amendment Bill which was first introduced in parliament in another place on 26 May by the Hon. Tammy Jennings. As indicated by the minister today, he on behalf of the government introduces this bill for our consideration.

The opposition opposes this bill, and I say this for good reason. I will briefly reflect on the history of the development of the legislation, because this bill is now addressing an alleged defect. Until the beginning of July this year, when the Mental Health Act 2009 became effective, South Australia's severely mentally unwell people were dealt with under the Mental Health Act 1993 and, after several years of consultation and a review of the 1993 legislation, the Mental Health Act that we now have came for consideration to this parliament.

It is important to understand that during that period of consultation, late in the piece, there had been a coronial inquiry in which the Coroner investigated the death of Damien Paul Dittmar, who had been detained at the Queen Elizabeth Hospital with a mental health condition under the previous mental health act, and he absconded and subsequently committed suicide.

This amendment was introduced by the Hon. Michelle Lensink in another place at the time of the debate on the principal act. The recommendations of the Coroner in that case were considered and presented to the parliament, including the importance of ensuring that there be some protection for a seriously ill, mentally unwell person absconding from a facility when the law and the medical profession have determined that he or she is in need of care.

I want to say that the Mental Health Act, as its predecessor did, provides for a very small proportion of mentally unwell people in our community. I think it is important for members to appreciate that, in essence, seriously unwell people can come under consideration for whether their personal liberty is going to be restricted and, effectively, they can be forced to take medication. They can be forced into confinement and forced to have treatment whilst in confinement, and the like.

This affects a very limited number of people in the community and, largely, it is those who, due to their mental health condition, are unfit, unwilling or unable to participate in what is determined to be in their best interests. So I will not re-traverse the merits of that or otherwise. I think it is fair to say that everyone in the house appreciates that in some very limited circumstances it is necessary to impose significant restrictions.

So, we start with the premise that this bill is dealing with the very sick and that circumstances exist where their interests and the interests of others in the community (particularly those who are around them and care for them) need to be protected. Where possible, as the act provides, provision needs to be made for the treatment, care and rehabilitation of the persons in question.

The concerns raised by the Hon. Tammy Jennings suggest a number of things. One is that there will be the unwitting inclusion of people into potential prosecution and conviction for offences. Carers and concerned members of a family might receive into their home a very sick relative or a person who has been in their care, administer to them support, assistance and counselling and inadvertently they could be prosecuted.

Secondly, the language is severe, unacceptable and not contemporary. It is inappropriate to suggest that someone should be described as absconding and, more particularly, that potentially innocent people (in her view) would be treated as someone who is harbouring another. On the first matter I want to say this: to whom will this apply? The current provision (as described by the minister as an amendment to the original act) is that it is an offence to harbour or assist a patient at large. Section 105 of the act provides:

(1) A person who, knowing or being recklessly indifferent as to whether another is a patient at large, harbours or assists the patient to remain at large is guilty of an offence.

Maximum penalty: $25,000 or imprisonment for two years.

To suggest that a caring, concerned sister, mother, relative or carer (professionally trained or otherwise), who answers the door to a person (the subject of a detention) who has absconded from a facility and offers them a cup of tea, ascertains or observes they may be agitated and frightened, and the like—that in some way, by bringing them into their home providing them with a cup of tea or refreshment (or whatever), quietly speaking to them about the circumstances in which they have come to the property and even keeping them there for a while—will somehow be held responsible, and indeed liable to be prosecuted under the current provisions of section 105, is ridiculous.

Anyone in that situation, who feels they are confident and safe in the circumstances—because they may know the relative or person they have cared for very well and know how to manage any symptoms which might cause abject distress to either the patient or the relative—would clearly be concerned about any distress to the patient. Even if they themselves are not fully trained, they would probably have a pretty good understanding and see the signs of any state or condition to which the person might respond adversely—whether they are likely to grab a knife, attack someone, cause harm to themselves or the like.

I suggest that these people are relatives who in those circumstances, in the interests of their loved one, would contact the professional party representing them and/or a hospital and/or the police (if they think that is necessary) to say, 'My relative is here, can we sort out how this will be remedied.' It is ridiculous to suggest that these people will be captured. It is important for the house to appreciate that there is another group in the community who are not so generous.

Let me give members this scenario: a friend of the patient says to his mate when he knocks on the door, 'Yes, come in. You can stay in the back room. I'll make sure that nobody knows you're here, because I know, as you know, there's nothing wrong with you, and those cretins down there at the hospital have got no idea what they're talking about, and I'm going to keep you safe in the back of the house. I'm certainly not going to ring the police, the hospital or anyone else, because they're all nuts and you're not.'

That is, clearly, a circumstance where someone is knowing or recklessly indifferent as to that patient being at large and aids and abets the continued removal of that person from the secure facility they need to be in for their own recovery and rehabilitation. They are the people we need to be dealing with here, not the caring relative who gets a cup of tea and who sensibly and carefully, where appropriate, brings the situation back in control, understanding the importance of that to protect the patient as well.

Then, there is another group, and I want the house to be aware of this. There is another group, and these are the people who contacted me prior to this, when this bill was debated before. They say, 'Look; I am a relative, and I know how sick my son or daughter is. When they do come from the hospital and they are not supposed to be here—they have agreed to be under a voluntary order, they are under detention and they've come out—what am I going to do? I'm terrified. I'm frightened to death about what they're going to do to me.'

Alternatively, they have written to me, saying, 'I've actually been a victim of an assault in those circumstances, and I'm worried for my child and others.' I think that the house needs to appreciate that it is significant that we protect those people. If ever there was an endorsement of what was proposed under this legislation it came from Commissioner Ted Mullighan QC, who undertook an extensive report into children who were under the care of government (that is, guardianship of the minister), who were at large and who were victims of child sexual abuse.

He gave a number of reports to this parliament, and one of them was that it is unsafe to leave children on the streets. He said that they are exposed to the risks of harm and, of course, exposed to circumstances of drugs, sex trafficking and the like. He said, 'That is not acceptable, and I am advising the government and the parliament to make a law that makes sure that, if a child is under the guardianship of a minister and has been directed to live at certain premises, then, in that child's interest with a diminished capacity to be able to make decisions for themselves, that should occur and, furthermore, that anyone who interferes with that, wilfully or with reckless indifference, should face the criminal courts for the harbouring of that child.'

Indeed, this very parliament has passed legislation to do just that—not in the context of criminal activity, let me say. The child has not committed a crime. The child may be at large or under the guardianship of the minister for their own self-protection. But did this parliament say, 'No, no, no. We are not going to use a crime and introduce a penalty for harbouring, and use the words 'absconding' and 'harbouring'. It's too difficult, it's too ugly to say no to that, and we won't protect those children'? No; we followed the advice of Commissioner Mullighan and we acted on it. We should do the same for mental health patients who are very sick in this community, as we have done for children.

The innocent, by reason of age or mental incapacity, are not able to make those decisions for themselves. They deserve our protection, the same as mental health patients who are very sick. So, I say that it is a nonsense. When I asked the Hon. Tammy Jennings to explain to me how we might better deal with the language (because this is the second leg of her argument), she said, 'Well, look; there are other jurisdictions that don't use such harsh words', and I am paraphrasing her position on that. I said to her, as I do to the house, 'I think that language is important.'

We do not use the word 'juvenile' a lot now, even though it refers to a certain age group in human and animal kind. It does describe behaviour which is now associated with, to use an old term, delinquency: the misconduct, illegal behaviour, etc., of young people. We are careful to use the words 'young offenders' instead of 'juvenile'. It is important to understand the significance of language in those circumstances. Even though we would use the word 'harbouring' in the protection of children and the legislation we introduced post the Mullighan inquiries and reports, I was very happy to look at that.

She said, 'Other jurisdictions have done it differently.' I said, 'Look, I will be more than happy to look at amendments to that effect,' and so she did send to me, as she indicated she would, the application of law in other jurisdictions. I must say I was stunned to read it when I received it not because there was not an opportunity to perhaps tame down, soften, etc., the wording, but because the jurisdictions she sent to me use exactly the same language as this current legislation and words which she claims need to be removed from this bill to remedy harsh, cruel and inappropriate language.

Let me summarise them: Northern Ireland, which I would not say is some sort of conservative, right-wing administration. Section 124 of the Mental Health (Northern Ireland) Order 1986 has a harbouring offence in which a person is guilty if they knowingly harbour a patient who is absent without leave, or inducing or knowingly assist: imprisonment six months and penalties that go with it; imprisonment not exceeding two years on the conviction of an indictment. Scotland—and again I would not see them as radical conservatives—has a Mental Health (Care and Treatment) (Scotland) Act 2003 in which again it is an offence to knowingly induce or assist a patient to abscond, or to fail to act and, in particular, goes on to say 'harbours a patient, who with the result, done or failed to do anything, shall be guilty of an offence: penalty six months for a summary conviction; two years on indictment.

The list goes on. In England they oscillate from socialist to conservative governments. They have a Mental Health Act 1983 (UK) which again provides for an offence for a person who knowingly harbours a patient who is absent without leave—that is the description they use there, as distinct from absconding—and again there is imprisonment for six months for summary offences and two years for conviction on indictment. At the invitation to provide examples of jurisdictions which might have softer wording, she sends me three contemporary jurisdictions which have exactly the same provision (although slightly different penalties and fines) for exactly the same offence, with the same language.

What is going on here? This is not really the situation. What has happened is that the government did not want this. It never wanted this in its bill, in the first place. The Hon. Ms Jennings, as committed as she might be to remedying the situation by the repeal of the harbouring provision, should have been completely honest with the parliament when she introduced this bill to disclose that she was one of the people prior to the principal act being debated and passed who advocated not to have it included. This is not new. Now she is in the parliament, she has decided she is going to have a second chop and she is going to the get government, which had consented to its inclusion before, to support her amendment.

I am disappointed that she was not entirely frank about that, but nevertheless the Mental Health Coalition Carers Association has come along and said, 'We are worried for that group.' I understand the concern they have. I think that it is without foundation, but it is reasonable to raise the issue. That is one group. As Commissioner Mullighan makes perfectly clear for children, we need to ensure that we protect these people in another situation.

Finally, if the government was really concerned about language that is too harsh, criminal offences, or the concern of the patient, which is what the whole legislation is supposed to be about, then I ask: why, even after briefings and an entire investigation into the mental health review, does it still allow for neurosurgery on mental patients in circumstances where two things happen. First, in relation to section 43 of the act (which was passed after a briefing by a psychiatrist who has now been appointed as the chief psychiatrist under the new legislation), she acknowledged that nowhere in the world did she know of any current medical procedure of a neurological kind that was being undertaken on a patient with a mental health illness.

In fact, the only thing she could think of which was close was neurological intervention for epilepsy. That is not a mental health illness, but, arguably, it is near the brain. After what occurred with lobotomies in the 1940s and 1950s, this should not even be in here. There are criminal offences if a professional person undertakes the procedure against the rules. If the government was serious about non-criminal behaviour, it ought to read its own act.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (16:30): I thank members for their contributions to the debate.

Bill read a second time and taken through its remaining stages.

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