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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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MENTAL HEALTH (INPATIENT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 April 2012.)

Mr PEDERICK (Hammond) (12:02): I wish to continue my remarks on this bill, having run out of time yesterday. The legislated onus is entirely upon the inpatient. Section 34 (clause 5 of the bill) states:

(3) If granted a leave of absence, the involuntary inpatient is required to comply with the conditions of the leave of absence.

The government has indicated that the staff's responsibility is covered under 'professional conduct', which does not require legislation. Further the bill's new section 34A(2) also states:

(2) Treatment centre staff may take measures for the confinement of the patient, and exercise powers (including the power to use reasonable force), as reasonably required—

(a) for carrying the inpatient treatment order applying to the patient into effect and ensuring compliance with this act; and

(b) for the maintenance of order and security at the centre or the prevention of harm or nuisance to others.

The shadow minister has indicated that he believes there is no compulsion on treatment centre staff to take any measures if an involuntary patient has left a treatment centre without a leave of absence or has breached their leave of absence conditions. In some cases this may have public safety implications for the inpatient and/or the broader public.

The consent for ECT on minors, clause 6, alters the parameters in which a patient under 16 years of age can be prescribed electroconvulsive therapy. This new amendment enables consent to be given by the parent or guardian or, failing this, by the Guardianship Board.

In summarising my few comments, the house will need to strike a balance between the interests of mental health patients and the interests of public safety. The bill reinforces the long-standing practice of allowing patients 'detained involuntarily' but rebadges these patients as 'involuntary inpatients'. In the interests of destigmatising mental health, and on the basis of professional advice, we will support that measure.

The bill would be improved if it included an obligation on treatment centre staff to act as soon as practicable to notify police when a leave of absence, or conditions attached to it, have been breached so that the police can act appropriately. This would minimise any risk of misunderstanding by staff about their mandated requirement to act in such cases, and an amendment would also mandate the reporting of such events in the public interest. I note that the member for Waite will be moving amendments.

Mr Hamilton-Smith interjecting:

Mr PEDERICK: No, he will not be, he has now indicated that he will not be. Thank you, member for Waite. Regarding mental health and when it gets to these issues of where people have to be held in detention, either voluntarily or involuntarily, I want to talk about where funding has been pulled from various organisations, not just in my electorate but across the state. I note the One Voice Network, which has membership extending from Mount Gambier, Mannum, Berri, Auburn, Wallaroo and Yorketown, right through to Port Augusta. For the past two years, Country Health SA Mental Health has funded the One Voice Network to pay a coordinator for 15 hours per week to run each member centre, and I note that funding has ceased as at the end of March.

One area I am really concerned about is the funding that has been axed from Our Wellbeing Place in Murray Bridge. Ann-Marie Garrett used to be the coordinator of Our Wellbeing Place and when the funding was terminated she decided that her time with the Public Service was over and she has retired. I note that there are 7,500 people who access Our Wellbeing Place in Murray Bridge each year, no longer will they be greeted by a coordinator as she has left the program. The direct mental health programs which have been put in place are out on a limb, so to speak.

According to outgoing coordinator Ann-Marie Garrett, since it opened in 2006, the centre has had a mental health focus and fulfilled a vital role in the community by giving isolated, lonely or sick people a place to connect. I note that in 2009, the centre won a Dr Margaret Tobin award for excellence in mental health. The youth in the community have headspace, and Our Wellbeing Place is focused on adult needs. Two adults who had mental health issues joined the art group and went on to university to do a degree in art. One comment from the art group was, 'If we had more classes like this we would need less medication'.

Mrs Garrett indicated that she was shocked to find that funding for her position had been axed, as without a coordinator, as I indicated earlier, the centre could not continue in its current capacity. So, the future of the centre is up in the air. It was set out to have a centre that was open to everyone and where there would be no discrimination, but with no-one driving that what can be done to continue what has been started?

I am disappointed that the funding has stopped. I note that the government is keen to get NGOs involved, but I think the Labor government has missed the ball here. A little bit of funding would help alleviate the mental health needs of thousands of people throughout the state and my electorate in making sure that they had their needs met before (potentially) there might be an issue with these people having to be detained, either voluntarily or involuntarily.

My hope, now that the government has taken its eye off the ball, is that NGOs will pick up these positions and keep up the vital services in this area, not just in my electorate but across the state, for the health needs of the community.

The Hon. J.D. HILL (Kaurna—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for the Arts) (12:09): I thank members for their contributions to this debate. I thank the member for Waite for expressing the opposition's support for this legislation. I think it is always fantastic, particularly in these areas which can be sensitive, that there is bipartisan support for a position. I reflect that, when this legislation went through four or five years ago, it probably would have been difficult to have reached agreement on or even put this kind of philosophy into the legislation.

What we are attempting to do here is to continue the destigmatisation of people with mental illness in our community. There is a whole range of things that we are doing as a community at a state level, at a local level and at a national level to improve services for people with mental illness to make sure that there are acute settings for them to go to when their illness becomes so difficult that they have to be in an institution and to ensure that there is a range of services in the community—subacute care, community-based care, home care and a whole range of packages—to support people.

But the advice to me was that the one big bit of territory that we needed to explore as a government and as a community was in the area of public attitude to people with mental illness. Part of that campaign is being addressed through advertising campaigns which we are running on TV, in bus shelters, on radio and so on to help members of the community have a better understanding of people who have mental illness, and this piece of legislation is very much part and parcel of that strategy to reduce the stigma that people with mental illness suffer.

It is just a change of a word but words can be very powerful, as members know, particularly members in this place. Much of politics is about language—how we use language. We can label people with language and those labels stick with them for a very long period of time. The use of the word 'detention' to apply to mentally ill people against there will in an institution does create the sense that they are being detained because they are dangerous or they are criminal, and that helps foment an attitude towards people who are mentally unwell, and that is something that we are trying to address in this legislation.

As I think the shadow minister would understand, there are a range of ways that people who have an acute mental illness can be treated. A lot of those patients—I think, indeed, the majority of patients—who end up in acute institutions are there as voluntary patients and they are subject to a whole range of treatment as voluntary patients. They are not under lock and key. They can move around and, of course, they can choose to go at any time. Some patients, against their will, are obliged to be in an institution to receive care, so they are what have been described in the past as 'detained patients'. However, the detention is not under lock and key; they are there under the supervision of the staff but they are not in a locked environment—they can move about the place.

The majority of those patients who are detained in that sense comply with the orders that are imposed upon them and they do not leave, they do not run away. The reason they are not under lock and key is that it is a more humane way of treating them. It is a practical way of dealing with them given that they do not generally leave the place where they are being kept, and it is obviously more therapeutic if you have a mental illness to know that you are not under a lock and key. The patients do not therefore feel like prisoners, and so it is really part of the therapy that is being applied.

There are a small number of patients, I am advised, who are compulsorily held in institutions who are under lock and key, generally for very short periods of time, when their illness is at its most acute and where the risk to themselves or to others is so great that the only way they can be managed is in that sense, under what we would properly understand as detention. This legislation will not change any of those arrangements, it just changes the labels that are applied to people in those categories; so, some patients will still be under lock and key, will still be detained in that classic sense of detention. They will be in the minority of cases. The majority of patients who are in an acute institution against their will, involuntary patients, will be there but not under lock and key.

There are also patients in the community who are subject to treatment orders against their will who have compulsory treatment orders applied to them. They are not under lock and key; they are not in an institution. They have, I guess, light supervision in the community and, as long as they maintain their medication, they are fine. We already acknowledge a group of patients who are compulsorily treated in the community, in their own homes, who are managed through our system, and we do not use pejorative language about those people.

All the patients I have referred to have to be distinguished from those who are in an institution like James Nash House or who are classified as forensic patients who are subject to court orders. They may be in an institution other than James Nash where they have to be managed according to the court's rulings. I distinguish those patients because they do have criminal elements to their treatment orders, if you like. We are not interfering or changing those arrangements by this legislation, as I understand it, in any way at all.

The member for Waite raised issues about escaping and failing to comply and how we balance the issues of public safety with the stigma issues. How we do that is at the heart of what this is about. This legislation will not change those arrangements at all: it is just changing language. The member suggests that one option—and he is not pursuing this by amendment and I am grateful to him for not doing that—would be to mandate a requirement that staff or clinicians who work in these institutions notify the police when an involuntary patient absconded, if certain conditions had been set—I think he said 'a reasonable time frame'.

I have advice on a range of things. Firstly, we would then, I think, get rid of stigma in one category, but we might create stigma another category in that a patient who leaves an institution against the order is suddenly subject to a police investigation and the police start looking for that person. So, there is that issue.

Putting that to one side, quite often, I am told, when patients who are subject to these orders leave, the clinicians generally know where they have gone. They are generally fairly predictable. Sometimes they go to the pub, I understand; sometimes they go to their mum's place or their girlfriend's place, so they can be found pretty quickly.

But there is a category of patients who disappear. I think the member referred to a couple of tragic suicide cases which were subject to the Coroner's Court. Sometimes patients who are under treatment orders, who are in technical detention but not under lock and key, leave the facilities and cause harm to themselves or someone else—generally, I think, it is to themselves but I am not sure what the statistics say—and they are a danger to themselves and the community.

How do we deal with that? The way that is dealt with now is the clinicians refer those patients to the police and the police are called in to assist in finding those people who have control orders on them, but that can also apply to voluntary patients who are in an institution and who leave, where their clinicians feel that there is a risk to themselves or to others. Often, you do not need to use a control order. If a patient turns up or is brought to, say, Glenside or another of our hospitals with a particular acute episode, and they say yes and voluntarily put themselves in, if they said no to that, then there would be a control order placed upon them.

There is no real difference in the character of the patients. It is just that they will have agreed to being in the institution. Probably, they have had past experience and they know what needs to happen. If they too were to go away, the clinicians would still call the police in some circumstances where they believe they were at risk or the community was at risk, so there is no real distinction in how they treat them.

I have talked to the chief psychiatrist and asked him what process they go through. The clinicians have their own protocols in place. To pick up the point that the member for Waite raised—I think what he was inviting me to do was to think about how we might better improve that—I asked him whether or not we could consider establishing some guidelines for the use of clinicians across our institutions so that, if patients were to leave in these circumstances, there would be some clarity about under what circumstances police should be called. I understand he is reasonably happy that we could do that, so I give the member for Waite an undertaking that the Chief Psychiatrist will examine and introduce, if it is deemed appropriate, a set of guidelines which are clear about under what circumstances and when.

I think it would aid clinicians if they knew there was a set of protocols in place which they could follow. At the heart of it, of course, you want the clinicians to use their own judgement and not rely on a piece of paper, because they are trained and, if they think something needs to be done quickly, they will do it quickly and so on. I do give him that undertaking.

I think I have pretty well covered the central issues the member for Waite asked me; if I have not, I am happy to try to pick them up if we go into committee. There are also some questions or issues around the ECT changes. As I think the member for Waite explained, this amendment really just clarifies what the law was supposed to be, and it brings into one place provisions which are in other bits of legislation and makes clear what process one needs to go through, particularly if it is a child under the age of 16.

I think the member for Bragg raised some questions about ECT, and I can give some general information to the house. ECT, or electroconvulsive therapy, is a psychiatric treatment for severe mental illness prescribed in particular circumstances. It is most commonly used to treat the symptoms of depression, although there is evidence that it can also be effective in treating the symptoms of mania, catatonia, schizophrenia and other serious mental illness. ECT is a procedure that is performed under a general anaesthetic, where controlled seizures are induced. The 2010-11 annual report of the Chief Psychiatrist states that a total of 6,393 ECT treatments were given in the 2010-11 period; of these, 3,749 (58.6 per cent) were provided by public mental health services and the remainder by private psychiatric hospitals.

The act requires ECT to be consented to by the patient, by the Guardianship Board, or in the case of an emergency, by the treating psychiatrist. Consent to ECT was provided by the patient in 5,095 (79.7 per cent) of the treatments, by the GSB (the Guardianship Board) in approximately 1,150 (18 per cent), and by a psychiatrist (that is in those emergency circumstances) in 148 (2.3 per cent) of the treatments. ECT for children, that is under 16 years of age, is a rare event, occurring only once in the last five years. Nevertheless, amending section 42 of the act to remove any ambiguity about consent requirements for children is important so that clinicians are very clear in applying the law to that area.

Finally, I will just respond briefly to the member for Hammond's comment about funding—it is not really covered by the legislation, but since he has raised it I will try to address it—for a range of community based mental health services; One Voice, I think it was called.

Mr Pederick: One Voice and Our Wellbeing Place.

The Hon. J.D. HILL: Yes, One Voice. As I understand it, there was some one-off money provided a few years ago to assist the establishment of these, and it was very clear that it was short-term funding. The obligation that was part of the funding contract was that the organisations would find alternative funding sources for the future. We extended that funding, I think maybe on two occasions, but it was not ongoing funding, and while some of the organisations which received the funding have been successful at working out how to have the service continued others have been less so.

While I can understand the frustration of local communities about this, the money was given on that basis. I have to say I was not aware of this funding. I am not sure that I was responsible for mental health at the time, but I am not blaming anybody. I am very reluctant to provide one-off funding to organisations. I just think it creates these kinds of problems all the time. It seems to be a good thing or a nice thing to do at the time for a group that is doing something good, ' Here is some money to get you going.' You set the protocols in place and of course it gets a head of steam and then there is no ongoing support for them. I think it is a very problematic way of doing things and certainly, to the extent that I can, I have avoided doing that in my areas of responsibility.

Sometimes it can be a good thing: for example, in the arts having a one-off fund to do something is fine but in a health delivery service I think it does create these issues. I regret that these communities have built up an expectation which can no longer be delivered but, quite frankly, there is no budget line to provide these services on an ongoing basis.

Finally, once again, I thank the opposition for its support. It is fabulous that we have bipartisan support around this small but significant change in language and, I think, attitude. That is a good message for this parliament to send to the community—that people who suffer from a mental illness are to be treated as ordinary citizens who have an illness, in the same way that we treat any other citizen who has an illness. If you have a bad heart or cancer or you need dialysis, we do not pillory or victimise or stigmatise but we treat these people as ordinary citizens who have rights and we should extend that same set of attitudes to people with mental illness.

The casual use of language around mental illness is endemic in all of us. We have all grown up using those kinds of phrases. We just have to try to school ourselves to be more inclusive in the way we talk about people who are mentally unwell.

In conclusion, I thank my advisers who have helped worked on this bill: the Chief Psychiatrist, Dr Peter Tylliss; the former chief psychiatrist (I think somebody on the other side was asking who that was) Dr Margaret Honeyman, who has returned to New Zealand; Lisa Huber, principal policy officer; Ben Sunstrom, the manager of the Office of the Chief Psychiatrist; Cassie Bouyer Penney, policy officer; my former adviser in mental health, Alex Keen; and, of course, parliamentary counsel Christine Swift and Alice Graham. I thank them very much and I commend the legislation to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Mr HAMILTON-SMITH: I want to explore with the minister the change of definitions from detention and treatment order to involuntary inpatient and get on to the record more fulsomely the government's thinking here. I thank the minister for his overview in regard to wanting to destigmatise and move away from the term 'detention'. I guess the focus of my question is on how the public might perceive this term. If an offender under one of our criminal laws has been detained and escapes and that is reported in the media, everyone knows that a detainee has escaped, if you like.

Does the minister have any concerns about possible press reporting if there is an act of violence, whether it is an act of violence against the patient themselves by themselves or anyone else, that the reporting of it might be clouded by the new definition? That is to say, that instead of the media reporting that someone involuntarily detained or under a detention and treatment order has escaped and is at risk—now an involuntary inpatient has escaped or is at risk or has breached their leave—does the minister have any concerns that the public might be less clear than they were before about the status of that person?

Where they might be alert, for example, if they knew they were in the company of someone who was under a detention treatment order, they might not be quite as alert if they were in the company of someone who was an involuntary inpatient. Could the minister expound on that for us, please?

The Hon. J.D. HILL: I thank the member for his question. I think there will be better clarity. When the media reports that a detained patient has escaped (to use that language) from a mental health facility the perception that members of the community have now is that somebody has broken out of a prison-like environment and is roaming the streets and is dangerous.

We saw recently the escape of a number of young offenders from Cavan, and that is the kind of image that you have. You are associating a prison breakout with a mental health facility, which is a hospital. We are talking about a patient walking out of a hospital who is under a controlled order, but we currently call it a detention order, which implies that they have broken out.

In the future, the media will record it as the media will, and I guess changing the language is not going to change the way the media deals with the issue. How we try to move public opinion is a longer and different proposition. However, if the media were to say that somebody who is under a controlled medical order has walked out of the hospital where they should be, the police have been notified, and the public are given a warning if that person is potentially dangerous, I think that would be a fair assessment and reflection of what is going on.

I think it is more transparent about what is happening. I understand; we always want to make sure the public is protected, but, generally, if somebody is currently under detention and they are a really strong risk to the public, I imagine there would be a higher level of scrutiny given to them. That is all I can really say.

Clause passed.

Clause 5.

Mr HAMILTON-SMITH: This strikes to the question of leave. I note the minister's point that we are not really changing substantially the pre-existing arrangements, but bringing them up to date with new definitions. However, it does open the question of leave. In my consultations on this, some members of the public expressed surprise to me that someone detained involuntarily might be allowed leave; now they will be described as voluntary inpatients and would be allowed leave.

The question was put to me along the lines of: well, if these people have been detained involuntarily, either to protect themselves or for the protection of others, why would we let them out on leave? I have had the benefit of some discussions with advisers on this, but I think for the record the minister might just clarify why we do this, to give the public some assurance as to the practice.

The Hon. J.D. HILL: I thank the member again for his question. I think it is important that we do clarify this and I appreciate the opportunity he is creating. As I said in my preliminary remarks, at the moment we have compulsory treatment orders for outpatients and we also have compulsory treatment orders for inpatients. As long as the outpatient, who is under a compulsory order, is taking the medication and doing the things that they need to do, then there are no issues.

Equally, as I understand it, that applies to patients who are in hospital, too. As long as they are complying with their medication and the management regime they are under, that is fine. I think sometimes it is important that they are allowed to be given leave as part of their therapy. Can they catch a bus to their parents' place, or to their wife or husband's place? Can they go down to the shop to buy a drink or something of that order? Can they go to the movies and come back?

All of those elements, as I understand it, are part of their therapy. The other example that was just given to me is it could be done for just good, humane reasons such as mothers wanting to visit their children, for example. An ill woman who has some children who are being looked after by the husband or grandparents, perhaps, can be given leave for an hour or two, half a day, or even overnight, to go and be with family.

Ms Thompson: Attend Christmas dinner.

The Hon. J.D. HILL: Attend Christmas dinner, as my colleague the member for Reynell says. All of those would be quite sensible reasons. It is not dissimilar to patients who have some sort of non-mental illness who are in a hospital for a long period of time who are sometimes allowed to go and do things as long as they are back by a particular time. It is really just part of the therapeutic process. Clearly, if they were current dangers to themselves, or to others, the clinicians would not allow this.

This change of language does not change any of these arrangements. Obviously, medicine is not an exact science and not on every occasion will it be 100 per cent correct, but I dare say 99 per cent of times, or even more, it is. It is a matter of managing those risks, and that is what the clinicians are trained and paid to do. I agree with the member that it does not make sense to say, 'That person is detained, therefore we are allowing them to have leave.' That is correct: it does not make sense. That defies common sense. That is one of the reasons, of course, for changing the language—because it does not make common sense and it does create confusion and concern in the community unnecessarily.

Mr HAMILTON-SMITH: I thank the minister for his answer. I note the minister's offer of a set of guidelines in regard to management of leave and thank him for that, because I think that will be a step forward. As I mentioned, the opposition considered drafting an amendment to tighten up these arrangements but has accepted the advice of the minister and his advisers that we should deal with the control of leave in another way, and I think this set of guidelines is a constructive move forward.

However, in exploring that further, I suppose I seek some direction as to how that set of guidelines might evolve. For example, I am aware of one case where someone who I understand was on leave, some years ago, threw themselves in front of a car. Patients are involuntarily detained or become involuntary inpatients, presumably, because they are a risk either to themselves or others, and it can be very traumatic for a member of the public to be the driver of the car, or for a member of the family or a loved one to find that suddenly this person they love is threatening or trying to kill themselves, etc., where they arguably might more safely be back in the institution or in the facility from which they have come but they have overstretched their leave or did not go back when required because they were either drinking or breaching some condition of the leave.

The loved one, or the person who is accidentally brought into this situation where they are witnessing or involved in a suicide or a violent act, or are on the receiving end of a violent act because the loved one struck them, or something along those lines, might understandably be quite outraged or hurt that the system did not move more quickly, if you like, to ensure that person was found and returned to the clinical facility where they were being treated. They might be outraged that, it having been made clear the person was breaching their terms (for example, having contacted the facility under the influence of alcohol, or something like that—clearly, in breach of the conditions), more prompt action was not taken to get them.

I take the minister's point that we might not necessarily want the police having to spend their time chasing people up in every instance as a matter of course and, therefore, mandate that that occur, but I am sure the department has other devices for recovering people and getting them back to the facility. It might be the deployment of a nurse or carer in a vehicle going to get them. It might be getting on the phone and arranging for a loved one, or someone involved, to physically put them in the car and bring them in, or something like that.

But it does seem to me that, at the moment, there is no onus on the staff in a facility to necessarily act. So, I am looking for some elaboration on what the guidelines might contain. For example, if I were a nurse at a clinical facility and the instruction I had been given was that Mr A was out on leave and he was due back at 4pm and then, come 5pm, Mr A had not turned up, come 6pm I might of my own account say, 'Oh, well, I suppose that can wait until 10,' or 'That can wait until the morning. I'll raise it with the doctor when they are rostered on.' In other words, the discretion is left to me to make a judgement about whether I will chase up that person or report it, or follow it up in some way. Meanwhile, Mr A commits suicide, or Mr A is involved in some act of violence and somebody is hurt who, arguably, need not have been.

I take the point that we rely on the professional status of the clinical people involved in caring for our mental health patients, but it seems to me that there needs to be something a little more rigorous to give comfort to loved ones and to patients, and to the public at large, that something will be done to follow things up when, clearly, leave conditions have not been complied with. Can the minister give us any further detail on how the guidelines might be enforced?

The Hon. J.D. HILL: I have just received some further advice. There is a policy in place now in metro mental health treatment centres. The policy guides practice and stipulates that when it becomes evident that a consumer may be missing from a bedded unit, as it is described, action is to be taken within these time frames: rehabilitation aged-care units, 45 minutes; acute admission units, 30 minutes; psychiatric intensive care units (known as PICUs), closed units and high-dependency units, within 15 minutes.

Details of any parties who may potentially be at serious risk of harm from the consumer should be reported to SAPOL by the unit nursing staff, in liaison with the clinical director, duty coordinator, nursing director and clinical practice service manager, as per the Department of Health's requirement to inform on the grounds of public safety, which allows considered breach of consumer confidentiality in exceptional circumstances.

I will just make the final point that it is worth noting that the directive is to be followed regardless of the patient's status. So, even if they are not currently detained but they are a voluntary patient, if they are missing without anybody's knowledge, those sort of protocols are put in place now. Also, for the benefit of the house, I table a set of guidelines, under the heading 'Adelaide metro mental health directorate', procedure title 'Missing consumers bedded services,' and there are two pages of details of what has happened. Further, I table a form known as MP1, which is a missing consumer notification form, which is used in these cases. I also table the form known as MP2, 'Missing consumer patient at large checklist, treating team follow-up'. I think that it would give the member some comfort that there are actually some protocols in place.

Mr HAMILTON-SMITH: I thank the minister for that elaboration, which is most welcome. My final question on this clause is to explore what follow-up action might be taken should the guidelines not be adhered to. I am just remembering the Coroner's comments on Simon Christopher Hynes, who committed suicide whilst on leave. As I pointed out, the Coroner was critical of the mental health system in his report when he said:

There was no attempt made by mental health authorities to locate Mr Hynes, despite the fact that he was on a community treatment order...

If these guidelines are not adhered to, what devices can the minister institute to ensure that we follow that up so that it does not happen again?

The Hon. J.D. HILL: I am advised that adverse or sentinel events, or reports from the Coroner (of course, the Coroner's events, by definition, would be adverse or sentinel events) are followed up by a monthly meeting of the incident review panel, which consists of senior clinical staff and managers, who supervise how all of these processes work, and that is exactly what they try to do; that is, if there is a mistake, they try to learn from it so that it does not happen again. One of the things I know, having been in this job for a while, is that the health system is very good at learning from error, and it does institute new procedures when something goes wrong. I think that is a pretty good system.

Clause passed.

Clause 6.

Mr HAMILTON-SMITH: I must say, when I read the parent act and what it says about the approvals required for ECT treatment, I could understand why this amendment had been brought forward. It took us a while to try to imagine how you might make it work as it was, so I understand why you have done this. For the record, I think I should ask the minister in his own words to explain to the house why the pre-existing act was not working and why we have changed it, through this amendment to section 42(1)(c), to free up the approval arrangements where we have to conduct this sort of treatment for patients under the age of 16. What was wrong before and why have we had to fix it with this clause?

The Hon. J.D. HILL: As I understand it, the intention has always been that parents should agree to ECT being provided to their children. In circumstances where they cannot or will not and there is a clinical view that it should occur, there is the capacity to go to the Guardianship Board or, if the Guardianship Board is in the place of the parents, for the Guardianship Board to make that decision.

My understanding is that the wording in the original act was considered to be ambiguous. It was being taken that every single time ECT treatment was required for a child then the Guardianship Board would have to be approached. As I say, it has only happened once in five years, so I guess that has not created a burden for anybody in particular, but the language in the original legislation created that sense of ambiguity.

The facts are: if the patient is over the age of 16, under the general provisions in relation to health treatments, they are capable of giving their own consent; if they are not capable over the age of 16, then their agent, a guardian or the board can do so under an application; and if the patient is under 16 years of age, the parent or guardian can do it or, on application, the board can do it. This amendment brings together all of the provisions in one location and makes it really clear how it should operate.

Mr HAMILTON-SMITH: To seek further clarity on that point, new section 42(1)(c)(iii) provides that, if the patient is under 16, approval can be given 'by a parent or guardian of the patient or by the board on application under this section'. Do I take that to mean that the board could authorise ECT against the express wishes of the parent? So, could they overrule the parent or guardian? Or has that been put there as an alternative should the parents not be available? What happens if there is a conflict between the two?

The Hon. J.D. HILL: I think the member has expressed the two circumstances under which it would apply. If the parent is not available, is missing or cannot be contacted for some reason, the Guardianship Board, under application, can give consent. If the parents say no and the clinician believes it is in the best interest of the patient then they can approach the Guardianship Board.

The equivalent would be in the area of blood transfusion, and we have had this a number of times at the Women's and Children's Hospital. For religious reasons, some parents have refused to have a blood transfusion for their child and the clinicians know that, if they do not get the blood transfusion, the kid is going to die. I am not sure whether they go to the same authority or whether they go to the court. I think they might go to the District Court or the Supreme Court. I am not sure exactly, but they go to the court and say, 'The patient is going to die and the parents are saying no. We seek your intervention to allow us to provide this treatment.' The court then weighs up all of the issues.

In relation to ECT, it could well be that a parent, for religious reasons or due to being mentally ill themselves or who knows, may make a decision which is not wise. I think the clinicians would be always mindful to explain the risks and what the benefits might be. If there were alternatives—say, whether you could have an ECT or something else—and if the parent said, 'I'd rather try this than an ECT,' I am sure the clinicians would go along with it. This is obviously in very exceptional circumstances. It has happened once in five years that there has been even one ECT given to a child. If the clinicians are absolutely of the view that the child needs it for their own safety and the parents are in disagreement, they have the right to approach the board, and then the board can adjudicate and make a determination based on the evidence it has put before them. I guess there are appeals then to the Supreme Court and so on if parents do not like it. There are safety provisions in there but that is what it is about.

Clause passed.

Remaining clause (7), schedules and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.D. HILL (Kaurna—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for the Arts) (12:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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