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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-06-04 Daily Xml
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MENTAL HEALTH BILL

Introduction and First Reading

The Hon. G.E. GAGO (Minister for Environment and Conservation, Minister for Mental Health and Substance Abuse, Minister Assisting the Minister for Health) (16:45): Obtained leave and introduced a bill for an act to make provision for the treatment, care and rehabilitation of persons with serious mental illness with the goal of bringing about their recovery as far as is possible; to confer powers to make orders for community treatment, or detention and treatment, of such persons where required; to provide protections of the freedom and legal rights of mentally ill persons; to repeal the Mental Health Act 1993; and for other purposes. Read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Environment and Conservation, Minister for Mental Health and Substance Abuse, Minister Assisting the Minister for Health) (16:45): I move:

That this bill be now read a second time.

A world-class mental health system depends on an effective legislative framework to ensure that society can fulfil its obligations to care for individuals with serious mental illness. There is an expectation in the community and an obligation on the part of the government that, where a person is unable to make an informed decision about their mental health and welfare and they are vulnerable or pose a risk to others, intervention can take place to ensure they obtain the assessment, treatment and care that is necessary. The Mental Health Bill 2008 is designed to replace the Mental Health Act 1993 and provide a contemporary framework for the provision of services to people with serious mental illness who are either unwilling or unable to consent to their own treatment.

To ensure that our mental health legislation is based on up-to-date knowledge and research and contemporary standards, a thorough review of the Mental Health Act 1993 and related legislation was undertaken. This review commenced in August 2004 and was chaired by Mr Ian Bidmeade, a legal policy consultant and solicitor. The terms of reference for the review focussed on the extent to which South Australia's legislation provided a framework for the management of mental health issues in a manner consistent with contemporary standards.

The report of the committee's finding, 'Paving the Way—Review of Mental Health Legislation in South Australia April 2005' (the report), was released for public comment by the Department of Health at the end of May 2005. The report was distributed to approximately 500 stakeholders and the recommendations received significant support. The report proposed a number of changes to modernise the legislation and improve responses to people with mental illness. These included: the need for a clear articulation of the rights of mental health service consumers and carers; greater emphasis on community care, not just hospital and institutional care; and a recognition of the particular circumstances of children, acknowledging the unique cultural perspective of Aboriginal and Torres Strait Islander people.

A majority of the changes recommended in the report were supported by the government, and in December 2006 cabinet approved the drafting of a bill for a new Mental Health Act. The report recommended the establishment of a mental health tribunal to hear appeals currently heard by the Guardianship Board and the Administrative and Disciplinary Division of the District Court. The government does not believe the establishment of a mental health tribunal is necessary. Some of the issues regarding the hearing of appeals can be remedied through the amendment of the Guardianship and Administration Act 1993, which the government is progressing.

In October 2007, a draft mental health bill was released for public comment; 55 written submissions were received through to late December. This process resulted in further refinements to the bill introduced here today. I take this opportunity to thank publicly all individuals and organisations who participated in this process and who have taken the time to formally submit a response to the review or participate in subsequent consultation. Their input has been of immense value in developing this bill and I am confident that the comprehensive consultation process has ensured that the government has been able to address key concerns, and their efforts will result in legislation which is clear in its focus, while retaining a degree of flexibility. I seek leave to insert the remainder of my second reading explanation in Hansard without my reading it.

Leave granted.

I would also like to acknowledge the significant contribution former mental health advocate and review and reference group committee member, the late Trevor Parry, made to ensuring mental health legislation and services have become more consumer focussed. Trevor was passionate about ensuring a balance between any new provisions for early intervention with additional safeguards and supports for people who become subject to involuntary treatment, and this Bill achieves that balance.

The Mental Health Bill2008 incorporates provisions which bring South Australia into line with contemporary approaches to the management of serious mental health issues and includes innovations designed to assist people to obtain assistance in a manner which aims to minimise the extent to which their freedom is curtailed and to protect their rights.

The long title for the Bill states that it is a Bill for 'An Act to make provision for the treatment, care and rehabilitation of persons with serious mental illness…'. This Bill is primarily about the use of powers to treat people with serious mental illness against their will and provides for the checks, balances and protections necessary for the transparent and accountable exercise of these powers.

Most people with a mental illness are never subject to an order which requires them to have treatment. They are treated by their general practitioner, psychologist or possibly a psychiatrist, willingly seeking and obtaining treatment. The Bill which is before you today is designed to provide a framework for providing care and treatment, while protecting the rights of the small minority of people who are unwilling to accept treatment even though they may be placing their own safety or the safety of others in jeopardy. Research indicates that one in five or twenty percent of Australian adults will be affected by mental illness at some time in their life. Three percent will be seriously affected. It is primarily the three percent of the population who suffer from a major mental illness which seriously affects them that this Bill is concerned with.

The Mental Health Bill 2008 contains a set of principles which are designed to provide guidance to all persons and bodies involved in the administration of the Act. The following principles are included in the Bill:

mental health services should be designed to bring about the best therapeutic outcomes for patients, and, as far as possible, their recovery and participation in community life;

the services should be provided on a voluntary basis as far as possible, and otherwise in the least restrictive way and in the least restrictive environment that is consistent with their efficacy and public safety, and at places as near as practicable to where the patients, or their families or other carers or supporters, reside;

the services should—

be governed by comprehensive treatment plans that are developed in a multi disciplinary framework in consultation with the patients (including children) and their family or other carers or supporters; and

take into account the different developmental stages of children and young persons and the needs of the aged; and

take into account the different cultural backgrounds of patients; and

in the case of patients of Aboriginal or Torres Strait Islander descent, take into account the patients' traditional beliefs and practices and, when practicable and appropriate, involve collaboration with health workers and traditional healers from their communities;

there should be regular medical examination of every patient's mental and physical health and regular medical review of any order applying to the patient;

children and young persons should be cared for and treated separately from other patients as necessary to enable the care and treatment to be tailored to their different developmental stages;

the rights, welfare and safety of the children and other dependants of patients should always be considered and protected as far as possible;

medication should be used only for therapeutic purposes or safety reasons and not as a punishment or for the convenience of others;

mechanical body restraints and seclusion should be used only as a last resort for safety reasons and not as a punishment or for the convenience of others;

patients (together with their family or other carers or supporters) should be provided with comprehensive information about their illnesses, any orders that apply to them, their legal rights, the treatments and other services that are to be provided or offered to them and what alternatives are available;

information should be provided in a way that ensures as far as practicable that it can be understood by those to whom it is provided.

I will now go on to discuss the key provisions of the Bill.

The Mental Health Bill 2008 recognises the role of carers to ensure they can provide the best possible care and support to a person with a mental illness. The Bill includes a definition of a carer and refers to carers in the guiding principles as a category of people to whom information about the illness, any orders that apply, legal rights and the treatment and other services available to the person being cared for is to be given. The provisions regarding confidentiality and disclosure of information enable information to be disclosed to a carer, relative or friend of the person subject to an order if the disclosure is reasonably required for the treatment, care or rehabilitation of the person, and there is no reason to believe that the disclosure would be contrary to the person's best interests. If a person is subject to a Community Treatment Order or a Detention and Treatment Order, information reasonably required for their treatment, care or rehabilitation may be shared, despite their opposition to this. These provisions overcome the barriers identified by Bidmeade regarding the sharing of information. Carers, professionals and some consumers consulted as part of the Bidmeade review all expressed concern that information necessary for the appropriate care and treatment of a person was not able to be shared. The Mental Health Bill 2008 clarifies that information can be shared with the consent of the person concerned, or with a carer, relative or friend as described.

The Mental Health Act 1993 has been identified as lacking a sufficient focus on consumer rights. The Bill, in contrast, articulates a number of rights for both voluntary and involuntary patients, as well as their carers, which are not included in the Mental Health Act 1993. These include:

Providing a copy of orders and a statement of rights to a guardian, medical agent, relative, carer or friend of the patient nominated by the patient for the purpose, as well as to the patient

Providing for the use of interpreters where available and appropriate

Entitling the patient to have another person's support

Entitling the patient to communicate with people outside of the treatment centre

Enabling information reasonably required for the treatment, care or rehabilitation of the person to be shared with a relative, carer or friend of the patient, where such disclosure is not contrary to the person's best interest

The right to a comprehensive treatment and care plan and to input into the plan for patients and their carers or other persons providing support to them.

In recognition of the different and broader concept of mental health in Aboriginal and Torres Strait Islander and Torres Strait Islander culture, the Bill establishes as a principle that services should take into account the patient's traditional beliefs and practices, and when practicable and appropriate, services should involve collaboration with Aboriginal and Torres Strait Islander health workers and traditional healers. The definition of relative used in the Bill recognises traditional Aboriginal and Torres Strait Islander kinship rules for determining who is a relative.

The Bill enables the Minister to determine that a specified place will be a Limited Treatment Centre for the purposes of the Act. This provision will enable some country hospitals which are suitably equipped, to be declared Limited Treatment Centres. This will enable them to detain and treat a person, if they meet the criteria for the order, for up to 7 days on a level 1 Detention and Treatment Order, rather than having to transport the person to Adelaide. During the 7 day period the illness may resolve itself. These provisions will be of benefit to all South Australians who live in country areas and, in particular, to Aboriginal and Torres Strait Islander people.

If further detention and treatment is deemed necessary, the person should be transferred to an Approved Treatment Centre. Currently the metropolitan public hospitals and 2 private hospitals are approved treatment centres and it is not anticipated that this will change in the immediate future.

The Mental Health Act 1993 does not contain provisions especially directed at children. The Mental Health Bill 2008 includes express provision about the application of the Act to children and includes a number of provisions designed to protect children's interests. These include principles that children and young people would be cared for and treated separately from other patients to enable the care to be tailored to their developmental stages and that the rights, safety and welfare of children and other dependants of patients should always be considered and protected as far as possible. The latter principle is designed to ensure that the needs of children and young people are considered and responded to when either or both of their parents have a serious mental illness. While it is not appropriate to include specific provisions for how the children of patients should be treated in the Bill, this principle will provide guidance to mental health and other staff dealing with children in specific circumstances. It is proposed that the Department of Health undertake a review of the current practices regarding the children of patients to ensure that their needs are being adequately addressed.

The Bill provides additional protections and safeguards for children under 18 but recognises that a child of 16 may consent to their own treatment, in line with the Consent to Medical Treatment and Palliative Care Act 1995. The long term orders on which a child may be placed, an infrequent occurrence, are shorter than those for adults and require more frequent review. These provisions are designed to provide greater protection for children.

Bidmeade recommended that provisions for electro-convulsive therapy (ECT) should be separate from the provisions for the other, much less commonly used treatments, the use of which is regulated by mental health legislation. This has been done. The Bill includes a requirement that consent, either by or on behalf of the patient, or by the Board, can only be given for a maximum of 12 episodes of ECT in a maximum period of 3 months. The use of ECT without consent is allowed in an emergency, however the psychiatrist administering the treatment in these circumstances must advise the Chief Psychiatrist of their actions within one working day. This requirement will enable the provision of emergency ECT to be monitored.

The term psychosurgery in the current Act has been changed to neurosurgery in the Bill. Psychosurgery is more tightly controlled than ECT and is currently unable to be performed if the patient cannot consent in writing. In practice, this part of the Act has never been used in South Australia. The Bill retains the requirement that neurosurgery has to be authorised by the person who will carry it out and 2 psychiatrists (at least one of whom is a senior psychiatrist), and the patient has to give written consent. If the patient is unable to consent, the Guardianship Board can do so. These provisions retain significant protection for patients but recognise that someone who may benefit from neurosurgery for mental illness is often unable to consent. Enabling the Guardianship Board to consent is designed to assist patients who may benefit from this treatment to obtain it.

The criteria for compulsory intervention for the purpose of mental health care and treatment are a critical component of any mental health legislation as they determine when an individual's wishes can be overridden, and assessment and treatment provided compulsorily. The criteria for detention under the current Act are that:

the person has a mental illness that requires immediate treatment; and

such treatment is available in an approved treatment centre; and

the person should be admitted as a patient and detained in an approved treatment centre in the interests of his or her own health and safety or for the protection of other persons.

The concept of 'health and safety' has proved problematic in practice, often setting the threshold for intervention too high to include people who are obviously deteriorating but have not yet reached the point where both their health and safety are compromised. The criteria included in the Bill for the issue of a Community Treatment Order or Detention and Treatment Order have been developed after giving close consideration to Bidmeade's recommendation, the United Nations Principles for the Protection of Persons with Mental Illness, the Model Mental Health Legislation agreed to by the Australian Health Ministers' Council and submissions received during the consultation period. The criteria for both forms of order require decisions that:

the person has a mental illness; and

because of the mental illness, the person requires treatment for the person's own protection from harm (including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and

there is no less restrictive means than the particular form of order in question for ensuring appropriate treatment of the person's mental illness.

The intent of the criteria for intervention in the Mental Health Bill 2008 is to ensure that a person who needs a specialist psychiatric assessment will receive one. The intent is to broaden the basis for obtaining an order. In line with the recommendations of the 'Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau' (Palmer Report), initial orders for both detention and community treatment can be made where it 'appears' to the medical practitioner or authorised health professional that the person has a mental illness. This is a lower threshold than in the current Act where even a medical practitioner who makes a first order, not only a psychiatrist who confirms an order, has to be satisfied the person has a mental illness.

This set of criteria is also intended to address the problems identified by Australian researchers of mental health law. According to their research, mental health laws which place the emphasis on involuntary intervention only when persons are assessed as dangerous to themselves or others result in poorer outcomes for these people. They convincingly argue that placing the emphasis on the dangerousness of the person often results in the period of time between the first onset of the mental illness, usually psychosis including schizophrenia, and the time at which the illness is diagnosed and treated, being longer than necessary. This delay in receiving treatment can lead to a poorer prognosis for the patient and potentially homicide.

Recent data from both New South Wales and the United Kingdom show that the risk of a patient committing homicide during their first psychotic episode is in the order of one in 500 new cases. In contrast, the annual risk of homicide by patients who have received treatment is only about one in 10000 per year. The researchers note that the lethal assault was usually preceded by frightening delusional beliefs and most of the victims were family members or close associates. Only 15 per cent of victims were strangers.

It would be remiss of me not to point out that most people with a mental illness are not violent and that patients with psychosis are not generally violent once they have been treated and can be safely managed in the community. However it is now clear that untreated psychosis in particular can lead to violence and that mental health law in general, and the criteria for involuntary intervention in particular, can reduce this risk. The greatest risk of potential harm for people with mental illness arises from the potential for suicide if they are not treated. The suicide rate for people with a mental illness is up to one in 10 compared to an average of one in 100 for the whole population. The criteria in the Bill place the emphasis on the person's need for treatment with the aim of ensuring that patients who need an assessment and treatment will fall within the new legislative scheme. Enabling people to obtain an early assessment, and treatment if required, is designed to reduce the risk of both suicide and homicide arising from untreated illness.

Part 9 of the Bill enables 'authorised officers' to transport a person who appears to have a mental illness. This is in line with a 2006 Australian Labor Party election promise that mental health staff would be given the powers to do their jobs and police would be used where there was a danger involved.

Authorised officers are defined by the Bill as mental health clinicians, ambulance officers, and specific staff of the Royal Flying Doctor Service. Within this part of the Bill 'authorised officers' and police officers have broadly similar powers. The differences in powers are that some authorised officers, that is specific ambulance and Royal Flying Doctor Service staff, will be legally able to chemically restrain a person under the provisions of the Controlled Substances Act 1984, while a police officer, unlike an authorised officer, will be able to break into premises under certain circumstances. These provisions are not new provisions, merely a clearer articulation of existing powers.

Currently, the Mental Health Emergency Services Memorandum of Understanding between the Department of Health, South Australian Ambulance Services, the South Australian Police and the Royal Flying Doctor Service signed in June 2006 provides a framework and specific guidance to staff transporting people with a mental illness. The Bill refers to the Memorandum of Understanding and states that authorised officers, police officers and other persons engaged in the administration of this measure should endeavour to comply with it. It is planned that the Memorandum of Understanding will be updated prior to the new Act coming into force. Practices, driven by the Memorandum of Understanding, are already consistent with the intentions of the Bill and have resulted in the safe transportation of people with mental illness. Police are no longer involved in inter-hospital transfers. The current Mental Health Act 1993 lacks clarity regarding the power of various professionals to transport a person with a mental illness. The Bill and the Memorandum of Understanding clarify that in the main, responsibility for transporting people with a mental illness rests with health staff, however when there is a danger, assessed in line with agreed methods of risk assessment, then the police will be there to assist.

Recent reforms of mental health legislation in other Australian States and Territories have emphasised the 'treatment plan' as crucial to proper treatment, incorporating the involvement of both community services and hospitals as appropriate. Bidmeade argues that the treatment plan is the cornerstone of compulsory orders for treatment in the community or involuntary inpatient treatment, with the plans being individualised, multidisciplinary and comprehensive, not just focussing on medication.

Consistent with a focus on recovery from mental illness, treatment plans provide the means for clearly articulating the purpose of compulsory mental health orders and how treatment and care will be undertaken. The treatment plan, referred to as a treatment and care plan in the Bill to reflect the multidisciplinary nature of these plans, will specify the elements which are compulsory, for example, medication, and those which are voluntary, for example, counselling. While a treatment plan is a desirable component of a contemporary approach to the treatment of mental illness, the Mental Health Bill 2008 does not allow the absence of a treatment plan as grounds for an appeal against an order. This is to encourage a comprehensive approach to treatment and care plans rather than a minimalist or token approach simply to be able to demonstrate compliance with a legislative requirement.

Organisations representing the interests of patients and their carers have welcomed the requirement for treatment and care plans in the Bill and their involvement in the development of such plans. Since the requirement for treatment plans was prescribed in legislation in Victoria, reportedly all patients have treatment plans and, there has been a significant increase in constructive dialogue and interaction between service providers and service users.

The most significant change in the provision of mental health services in the last century has been the development of care in the community. Facilitated by the development of new drugs to treat psychosis, including schizophrenia, and other major mental illnesses, care in the community has enabled the majority of people with a serious mental illness to remain in the community rather than being detained. This minimises the extent to which a person's freedom is limited while ensuring access to appropriate treatment.

The current Act enables only the Guardianship Board to make a Community Treatment Order. It is entirely appropriate for the Guardianship Board to continue to make longer term orders for community treatment or detention and treatment and it is pointed out that the Guardianship Board's role in making Community Treatment Orders on receipt of an application remains unchanged. It is expected that in most cases Community Treatment Orders will result from applications made to the Guardianship Board.

However, currently, Community Treatment Orders are generally made only after a person has deteriorated to the point where they have been hospitalised. The general trend in mental health legislation nationally is for orders similar to Community Treatment Orders to be available as a first treatment option if appropriate for a particular person at a particular time. This is also consistent with the principle, contained in the Bill that services are to be provided in the least restrictive environment and the least restrictive way that is consistent with their efficacy and public safety.

To prevent the present situation whereby a patient is often admitted as an inpatient, prior to a Community Treatment Order being made, the Mental Health Bill 2008 enables medical practitioners or a few highly skilled and trained authorised health professionals to be able to make a level 1 Community Treatment Order for up to 28 days to facilitate early access to care and treatment if appropriate. The order must be confirmed by a psychiatrist or authorised medical practitioner within 24 hours or as soon as practicable.

The process used for the Board's review of a level 1 Community Treatment Order will, in fact, be similar to a Board hearing that is currently set up on receipt of an application by the Board for the Board's consideration of whether a Community Treatment Order should be made as only the Board can make a level 2 Community Treatment Order for up to 12 months.

Community Treatment Orders enable early intervention to occur with the aim of reducing the severity and impact of the mental illness. A level 1 order will be able to be made relatively quickly rather than taking up to 14 days for a hearing of the Guardianship Board as is the case at present. The current Act is also somewhat contradictory in enabling a person to be detained for up to 3 days by a medical practitioner, subject to confirmation of the order, but requiring the authority of the Guardianship Board for them to be treated in the community.

The criteria for both Community Treatment Orders and Detention and Treatment Orders contain common elements and the requirement that the order is the least restrictive means of ensuring appropriate treatment of the person's illness will mean that in appropriate cases a Community Treatment Order is made. This provision aligns with national and international approaches to managing serious mental illness.

The Chief Psychiatrist has a responsibility to ensure that a mental health clinician is responsible for monitoring compliance with the order which is aimed at preventing people falling through the cracks if they move to another area or even interstate. Rather than focussing narrowly on medication and medical treatment like the current Act, it is contemplated that a broader range of services will be included in a treatment and care plan under a Community Treatment Order.

In contrast to the other States and Territories, with the exception of Tasmania, the Mental Health Act 1993 only allows a medical practitioner to make an order for detention and treatment. The Bill enables 'authorised health professionals' as well as medical practitioners to make both Community Treatment Orders and Detention and Treatment Orders. It is planned that 'authorised health professionals' will be a few individuals with advanced skills, knowledge and training in mental health.

Currently, the power to confirm an order is restricted to a psychiatrist. The Mental Health Bill 2008 enables psychiatrists and 'authorised medical practitioners' to confirm an order. An authorised medical practitioner will be a person who has undertaken several years of psychiatric training at a reputable training institution and has considerable psychiatric experience. These people will be selected by the Minister, on the advice of the Chief Psychiatrist.

The Bill, unlike the current Act, makes it clear that audio-visual conferencing can be used as the basis for making, confirming, extending, reviewing and revoking orders. This will reduce the need for people from remote areas to be transported to Adelaide for an assessment if they can be appropriately and safely examined via audio-visual conferencing.

The timeframes for involuntary treatment, particularly detention and treatment in the Mental Health Bill 2008 have been adjusted to more accurately correspond with the actual patterns of many mental illnesses and reflect a number of safeguards including specialist psychiatric and Board reviews. In contrast to the current Act all orders will expire at 2pm on a business day rather than at midnight.

The particular needs of children are addressed by provisions for shorter orders and more frequent reviews.

Patients can appeal at any time against any order and legal representation for appeals will continue to be provided. A range of people may make an application to the Board for a variation or revocation of a long term Community Treatment Order or a Detention and Treatment Order, both of which are made by the Board.

The Mental Health Bill 2008 provides additional safeguards for people in receipt of mental health services. The position of Chief Psychiatrist will replace the existing position of a Chief Advisor in Psychiatry. The Chief Psychiatrist will have the authority to monitor and review the performance of mental health services with a focus on promoting continuous improvement and issue standards to apply in the treatment of patients.

The current Act is silent regarding the issue of how interstate orders apply in South Australia and how South Australian orders apply interstate. The Bill deals with these matters in a comprehensive fashion. A Ministerial Agreement will be negotiated with the other States and Territories, on an individual basis. These agreements will provide greater clarity for all parties regarding the inter-state management of people on mental health orders.

The Mental Health Bill 2008 provides reforms which will complement the Government's recently announced $107.9 million mental health reform package to implement the Social Inclusion Board's recommendations. This reform package comprised funding for:

90 intermediate care beds;

73 supported accommodation places;

6 new community mental health centres;

the employment of 8 new mental health nurse practitioners in the country;

the establishment of a priority access service for about 800 people with chronic and complex needs, including those with drug and alcohol problems, a history of homelessness or who may be involved in the criminal justice system;

the provision of non clinical community based support services by non-government organisations; and

the establishment of an early intervention service for young people experiencing their first episode of psychosis.

The Social Inclusion Board also made recommendations about how care should be delivered in the future. The centre piece of their reforms was the stepped model of care which contains the following graduating steps:

support across the community, including community mental health centres and care and support provided by non-government organisations

24-hour supported accommodation;

community recovery centres;

intermediate care beds;

acute care beds; and

secure care beds.

The Bill recognises the provision of care in the community to assist people leaving acute mental health facilities or to provide a place for early intervention. As a subset of the new stepped care system, the Government has already commenced the process of establishing community recovery centres and opened the first 20 bed centre at Mile End in June 2007. It recently opened the second, the Trevor Parry Centre, in January 2008 and the third facility is planned to open at Playford in June 2008.

As a further commitment to mental health reform, the Government released the Glenside Concept Master Plan in September 2007 which outlined the development of the Glenside Campus into a new world-class 129-bed hospital for mental illness and substance abuse called: 'SA Specialist Health Services' that will comprise:

40 secure rehabilitation beds;

6 mother and infant acute beds;

23 rural and remote acute beds;

20 acute adult beds;

10 psychiatric intensive care beds; and

30 drug and alcohol acute beds.

In anticipation of the Bill's provisions for early access to care and treatment, a new Mental Health Triage Service commenced operation in December 2007, providing for a single entry point and emergency response across Adelaide in partnership with SA Ambulance Service.

The broad definition of mental illness has been retained in the Mental Health Bill in response to the Coroner's concerns that people should not be denied access to services, including short term intervention in a crisis, on the basis of diagnosis. The Government's capital works program is replacing old and outmoded facilities with new inpatient mainstream facilities such as the Margaret Tobin Centre at the Flinders Medical Centre, the Repatriation General Hospital Aged Care Centre, a new 50 bed facility at Lyell Mc Ewin Health Service which is due for completion in late 2009 and a new 40-bed secure forensic mental health centre at Mobilong.

The Bill acknowledges traditional healers and recognises the cultural values and practices of Aboriginal people and the Government is working in partnership with Aboriginal Health Services to improve service access for Aboriginal people.

The importance of partnership cannot be over-emphasised. For example, it is partnership that underpinned the RAISE Wellbeing Program in Port Augusta between Pika Wiya Health Service and the local specialist mental health service that won a Margaret Tobin Award in 2006.

The Child and Adolescent Mental Health Service has commenced a visiting service to the APY Lands. The visiting team is comprised of a psychiatrist and a social worker. A number of services are provided on the Lands through the Nganampa Health Council and there are 2 Anangu men working in the APY Lands Men's Health Program which provides cultural and social, emotional wellbeing support for men at risk of mental health issues.

Housing resources for Aboriginal people with a mental illness who are homeless or at risk of becoming so are located in Adelaide, Port Augusta, Ceduna, Port Pirie, Port Lincoln, Whyalla, Berri, Murray Bridge, Mount Gambier and Coober Pedy.

The Australian Government is providing capital funding for a substance misuse facility for the APY Lands and the SA Government will provide recurrent funding to run the facility. A mobile drug and alcohol outreach service is currently operating on the APY Lands.

In line with the Bill's provisions for care in the community and in partnering with non-government organisations, the State Government is undertaking a training initiative for the non-government mental health sector to support the development of its workforce and build up its capacity to deliver high quality services. The Government has also provided funding to NGOs to enhance their governance arrangements as well as for the development of quality standards. These initiatives form part of a broader capacity building program to improve services to people with mental illness.

The Bill recognises the role of informal, unpaid, family carers as partners with service providers in providing care and treatment for people with mental illness. In line with the Carers Recognition Act 2005, carers have choices and the Bill provides for the appropriate sharing of information with carers who care for a person with a mental illness who is subject to an order.

The Government values the important role that carers play and provides support funding for mental health carer respite and other support programs. A number of carer organisations receive funding from the Government.

The Australian Government is also rolling out a number of programs through the Council of Australian Governments National Action Plan on Mental Health 2006-2011. The overall commitment of South Australia to this action plan, which includes the recent reforms, is approximately $234 million. It should also be noted that a number of Australian Government funded services arising from the National Action Plan are now being provided in South Australia. Some of these service programs include Personal Helpers and Mentors, Support for Day to Day Living and Better Access to Psychiatrists, Psychologists and General Practitioners through the Medicare Benefits Schedule.

The Mental Health Bill 2008 and the service initiatives I have described will provide a modernised legislative framework and integrated service system to ensure that society can fulfil its obligation to care for individuals with serious mental illness.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out the terms that are defined for the purposes of the measure.

The Board is the Guardianship Board established under the Guardianship and Administration Act 1993.

Mental illness is given a general definition—any illness or disorder of the mind. Schedule 1 sets out conduct that will not on its own be taken to indicate mental illness.

Prescribed psychiatric treatment is defined as ECT or neurosurgery for mental illness or any other treatment declared by the regulations to be prescribed psychiatric treatment.

4—Application of Act to children

This clause provides that the measure applies to children in the same way as to persons of full age, subject to the following:

in the case of a child under 16 years of age, a right conferred on a person may be exercised by a parent of guardian of the child on behalf of the child;

an obligation to give a document to a person is, if the person is a child under 16 years of age, to be treated as an obligation to give the document to a parent or guardian of the child, and operates to the exclusion of any further obligation to send or give the document to a guardian, medical agent, relative, carer or friend.

5—Medical examinations by audio-visual conferencing

This clause makes provision for medical examinations to be conducted by audio-visual conferencing if it is not practicable in the circumstances for the medical practitioner or authorised health professional to carry out an examination of the person in the person's physical presence.

Part 2—Objects and guiding principles

6—Objects

The objects of the measure are—

to ensure that persons with serious mental illness—

receive a comprehensive range of services of the highest standard for their treatment, care and rehabilitation with the goal of bringing about their recovery as far as is possible; and

retain their freedom, rights, dignity and self-respect as far as is consistent with the proper delivery of the services and the protection of the public; and

for that purpose, to confer appropriately limited powers to make orders for community treatment, or detention and treatment, of such persons where required.

7—Guiding principles

The Minister, the Board, the Chief Psychiatrist, health professionals and other persons and bodies involved in the administration of the measure are to be guided by specified principles in the performance of their functions.

These are as follows:

mental health services should be designed to bring about the best therapeutic outcomes for patients, and, as far as possible, their recovery and participation in community life;

the services should be provided on a voluntary basis as far as possible, and otherwise in the least restrictive way and in the least restrictive environment that is consistent with their efficacy and public safety, and at places as near as practicable to where the patients, or their families or other carers or supporters, reside;

the services should—

be governed by comprehensive treatment and care plans that are developed in a multi-disciplinary framework in consultation with the patients (including children) and their family or other carers or supporters; and

take into account the different developmental stages of children and young persons and the needs of the aged; and

take into account the different cultural backgrounds of patients; and

in the case of patients of Aboriginal or Torres Strait Islander descent, take into account the patients' traditional beliefs and practices and, when practicable and appropriate, involve collaboration with health workers and traditional healers from their communities;

there should be regular medical examination of every patient's mental and physical health and regular medical review of any order applying to the patient;

children and young persons should be cared for and treated separately from other patients as necessary to enable the care and treatment to be tailored to their different developmental stages;

the rights, welfare and safety of the children and other dependants of patients should always be considered and protected as far as possible;

medication should be used only for therapeutic purposes or safety reasons and not as a punishment or for the convenience of others;

mechanical body restraints and seclusion should be used only as a last resort for safety reasons and not as a punishment or for the convenience of others;

patients (together with their family or other carers or supporters) should be provided with comprehensive information about their illnesses, any orders that apply to them, their legal rights, the treatments and other services that are to be provided or offered to them and what alternatives are available;

information should be provided in a way that ensures as far as practicable that it can be understood by those to whom it is provided.

Part 3—Voluntary patients

8—Voluntary patients

This clause provides that a person may be admitted as a voluntary patient in a treatment centre at his or her own request and that such a person may leave the centre at any time unless a detention and treatment order then applies to the person.

9—Voluntary patients to be given statement of rights

This clause provides that the Director of a treatment centre must ensure that a voluntary patient in the centre is given a written statement of rights informing the patient of his or her legal rights and containing any other information prescribed by the regulations.

The clause ensures that various measures are taken in circumstances where a patient is unable to read or otherwise comprehend the statement and that the director must cause a copy of the statement of rights to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

Part 4—Orders for treatment of persons with mental illness

Division 1—Level 1 community treatment orders

10—Level 1 community treatment orders

This clause provides that a medical practitioner or authorised health professional may make an order for the treatment of a person (a level 1 community treatment order) if it appears to the medical practitioner or authorised health professional, after examining the person, that—

the person has a mental illness; and

because of the mental illness, the person requires treatment for the person's own protection from harm (including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and

there are facilities and services available for appropriate treatment of the illness; and

here is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness.

A level 1 community treatment order, unless earlier revoked, expires at a time fixed in the order which must be 2pm on a business day not later than 28 days after the day on which it is made.

Subclause (4) provides that if a level 1 community treatment order is made by a person other than a psychiatrist or authorised medical practitioner, the following provisions apply:

a psychiatrist or authorised medical practitioner must examine the patient within 24 hours;

if it is not practicable to examine the patient within that period, a psychiatrist or authorised medical practitioner must examine the patient as soon as practicable thereafter;

after completing the examination, the psychiatrist or authorised medical practitioner may confirm the level 1 community treatment order if satisfied that the grounds referred to above exist for the making of a level 1 community treatment order, but otherwise must revoke the order.

A level 1 community treatment order may be varied or revoked at any time by a psychiatrist or authorised medical practitioner who has examined a patient to whom the order applies.

Confirmation, variation or revocation of a level 1 community treatment order must be effected by written notice in the form approved by the Minister.

11—Board and Chief Psychiatrist to be notified of level 1 orders or their variation or revocation

This clause provides that a psychiatrist or authorised medical practitioner making, confirming, varying or revoking a level 1 community treatment order must ensure that the Board and the Chief Psychiatrist are each sent or given, within 1 business day, a written notice in the form approved by the Minister.

Receipt of the notice provided must be acknowledged in writing by the Registrar of the Board and the Chief Psychiatrist respectively within 1 business day.

12—Copies of level 1 orders, notices and statements of rights to be given to patients etc

A medical practitioner or authorised health professional making a level 1 community treatment order must ensure that the patient is given, as soon as practicable, a copy of the order.

A medical practitioner or authorised health professional making a level 1 community treatment order must ensure that the patient is given a written statement of rights informing the patient of his or her legal rights and containing any other information prescribed by the regulations.

The clause ensures that various measures are taken in circumstances where a patient is unable to read or otherwise comprehend the statement and that the medical practitioner or authorised health professional must cause a copy of the statement of rights to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

Subclause (5) provides that if a level 1 community treatment order is varied or revoked, the psychiatrist or authorised medical practitioner varying or revoking the order must—

ensure that the patient is given, as soon as practicable, a copy of the notice of variation or revocation of the order; and

cause a copy of the notice of variation or revocation to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

13—Treatment of patients to whom level 1 orders apply

A patient to whom a level 1 community treatment order applies may be given treatment for his or her mental illness of a kind authorised by a psychiatrist or authorised medical practitioner who has examined the patient. Such authorisation is not required if a medical practitioner considers that—

the nature of the patient's mental illness is such that the treatment is urgently needed for the patient's well-being; and

in the circumstances it is not practicable to obtain that authorisation.

Treatment may be given under this clause despite the absence or refusal of consent to the treatment.

This clause does not apply to prescribed psychiatric treatment (as defined by clause 3), or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993.

14—Chief Psychiatrist to ensure monitoring of compliance with level 1 orders

This clause provides that the Chief Psychiatrist must, after receiving notice of the making of a level 1 community treatment order, ensure that there is a mental health clinician who has ongoing responsibility for monitoring and reporting to the Chief Psychiatrist on the patient's compliance with the order.

15—Board to review level 1 orders

This clause requires that the Board review a level 1 community treatment order as soon as practicable after receiving notice of the order and before the order expires and enables the Board to conduct a review in any manner it considers appropriate.

The Board must, on a review of a level 1 community treatment order, revoke the order unless satisfied that grounds exist for a level 2 community treatment order to be made.

Division 2—Level 2 community treatment orders

16—Level 2 community treatment orders

This clause provides that the Board may make an order for a level 2 community treatment order if satisfied as to the matters set out as the grounds for a level 1 community treatment order.

Subclause (2) provides that a level 2 community treatment order may be made in respect of a person—

on an application to the Board for the Board's decision as to whether it should make a community treatment order in respect of the person (whether or not a level 1 community treatment order has been made in respect of the person); or

on a review by the Board of a level 1 community treatment order that applies to the person; or

on an application to the Board for the revocation of a level 3 detention and treatment order that applies to the person.

Subclause (3) specifies the persons who may make an application to the Board for the Board's decision as to whether it should make a community treatment order in respect of a person. The persons specified for the purpose of subclause (3) may also make an application for a variation or revocation of a level 2 community treatment order.

Subclause (6) provides that the Board may, on application, by order, vary or revoke a level 2 community treatment order at any time.

17—Chief Psychiatrist to be notified of level 2 orders or their variation or revocation

The Registrar of the Board is required to ensure that the Chief Psychiatrist is notified, within 1 business day, of the making, variation or revocation of a level 2 community treatment order by the Board.

18—Treatment of patients to whom level 2 orders apply

Under this clause, a patient to whom a level 2 community treatment order applies may be given treatment for his or her mental illness of a kind authorised by a psychiatrist or authorised medical practitioner who has examined the patient.

Authorisation is not required for treatment if a medical practitioner considers that—

the nature of the patient's mental illness is such that the treatment is urgently needed for the patient's well-being; and

in the circumstances it is not practicable to obtain that authorisation.

Treatment may be given under this clause despite the absence or refusal of consent to the treatment.

This clause does not apply to prescribed psychiatric treatment (as defined by clause 3), or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993.

19—Chief Psychiatrist to ensure monitoring of compliance with level 2 orders

Under this clause, the Chief Psychiatrist must ensure that for each patient to whom a level 2 community treatment order applies there is a mental health clinician who has ongoing responsibility for monitoring and reporting to the Chief Psychiatrist on the patient's compliance with the order.

Part 5—Orders for detention and treatment of persons with mental illness

Division 1—Non-compliance with community treatment orders and making of detention and treatment orders

20—Non-compliance with community treatment orders and making of detention and treatment orders

This clause provides that a person's refusal or failure to comply with a community treatment order is a relevant consideration in deciding whether a detention and treatment order should be made in respect of the person under this Part.

However, nothing in the measure is to prevent the making of a detention and treatment order under this Part in respect of a person without a prior community treatment order having been made in respect of the person if a detention and treatment order is required in the particular circumstances.

Division 2—Level 1 detention and treatment orders

21—Level 1 detention and treatment orders

This clause provides that a medical practitioner or authorised health professional may make an order for the treatment of a person (a level 1 detention and treatment order) if it appears to the medical practitioner or authorised health professional, after examining the person, that—

the person has a mental illness; and

because of the mental illness, the person requires treatment for the person's own protection from harm (including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and

there is no less restrictive means than a detention and treatment order of ensuring appropriate treatment for the person's illness.

The clause also sets out the form in which the order must be made.

A level 1 detention and treatment order, unless earlier revoked, expires at a time fixed in the order which must be 2pm on a business day not later than 7 days after the day on which it is made.

On the making of a level 1 detention and treatment order, the following provisions apply:

the patient must be examined by a psychiatrist or authorised medical practitioner, who must, if the order was made by a psychiatrist or authorised medical practitioner, be a different psychiatrist or authorised medical practitioner;

the examination must occur within 24 hours of the making of the order;

if it is not practicable for the examination to occur within that period, it must occur as soon as practicable thereafter;

after completion of the examination, the psychiatrist or authorised medical practitioner may confirm the level 1 detention and treatment order if satisfied that the grounds referred to above exist for the making of a level 1 detention and treatment order, but otherwise must revoke the order.

A medical practitioner or authorised health professional may form an opinion about a person under subclause (1) or (4) based on his or her own observations and any other available evidence that he or she considers reliable and relevant (which may include evidence about matters occurring outside the State).

A psychiatrist or authorised medical practitioner who has examined a patient to whom a level 1 detention and treatment order applies may revoke the order at any time.

Confirmation or revocation of a level 1 detention and treatment order must be effected by written notice in the form approved by the Minister.

22—Board and Chief Psychiatrist to be notified of level 1 orders or their revocation

This clause provides that a psychiatrist or authorised medical practitioner making, confirming, or revoking a level 1 detention and treatment order must ensure that the Board and the Chief Psychiatrist are each sent or given, within 1 business day, a written notice in the form approved by the Minister.

Receipt of the notice must be acknowledged in writing by the Registrar of the Board and the Chief Psychiatrist respectively within 1 business day.

23—Copies of level 1 orders, notices and statements of rights to be given to patients etc

A medical practitioner or authorised health professional making a level 1 detention and treatment order must ensure that the patient is given, as soon as practicable, a copy of the order.

A medical practitioner or authorised health professional making a level 1 detention and treatment order must ensure that the patient is given a written statement of rights informing the patient of his or her legal rights and containing any other information prescribed by the regulations.

The clause ensures that various measures are taken in circumstances where a patient is unable to read or otherwise comprehend the statement and that the director of a treatment centre in which a patient is first detained under a level 1 detention and treatment order must cause a copy of the order and statement of rights to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

Subclause (5) provides that if a level 1 detention and treatment order is revoked, the director of the treatment centre in which the patient is detained must—

ensure that the patient is given, as soon as practicable, a copy of the notice of revocation of the order; and

cause a copy of the notice of revocation to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

24—Treatment of patients to whom level 1 orders apply

A patient to whom a level 1 detention and treatment order applies may be given treatment for his or her mental illness or any other illness of a kind authorised by a psychiatrist or authorised medical practitioner who has examined the patient.

Subclause (2) provides that the treatment may be given despite the absence or refusal of consent to the treatment.

This clause does not apply to prescribed psychiatric treatment (as defined by clause 3), or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993. The administration of prescribed psychiatric treatment (as defined by clause 3) is governed by Part 7 of the measure.

If a medical practitioner authorises treatment of a patient to whom a level 1 detention and treatment order applies that is treatment of a kind prescribed by the regulations, the medical practitioner must ensure that the Chief Psychiatrist is sent or given, within 1 business day, a written notice in the form approved by the Minister.

Division 3—Level 2 detention and treatment orders

25—Level 2 detention and treatment orders

This clause provides that if a level 1 detention and treatment order has been made or confirmed by a psychiatrist or authorised medical practitioner under Division 2, a psychiatrist or authorised medical practitioner may, after further examination of the patient carried out before the order expires, make a further order for the detention and treatment of the patient (a level 2 detention and treatment order).

A psychiatrist or authorised medical practitioner may make a level 2 detention and treatment order if satisfied as to the matters set out as the grounds for a level 1 detention and treatment order.

Subclause (3) provides that a psychiatrist or authorised medical practitioner may form an opinion about a person based on his or her own observations and any other available evidence that he or she considers reliable and relevant (which may include evidence about matters occurring outside the State).

The clause also sets out the form in which the order must be made.

A level 2 detention and treatment order, unless earlier revoked, expires at a time fixed in the order which must be 2pm on a business day not later than 42 days after the day on which it is made.

A psychiatrist or authorised medical practitioner who has examined a patient to whom a level 2 detention and treatment order applies may revoke the order at any time.

Revocation of a level 2 detention and treatment order must be effected by written notice in the form approved by the Minister.

26—Notices and reports relating to level 2 orders

This clause provides that a psychiatrist or authorised medical practitioner making or revoking a level 2 detention and treatment order must ensure that the Board and the Chief Psychiatrist are each sent or given, within 1 business day, a written notice in the form approved by the Minister.

Receipt of the notice must be acknowledged in writing by the Registrar of the Board and the Chief Psychiatrist respectively within 1 business day.

Subclause (4) provides that a psychiatrist or authorised medical practitioner making a level 2 detention and treatment order must, as soon as practicable, provide the director of the approved treatment centre in which the patient is or is to be detained under the order with a written report of the results of his or her examination of the patient and of the reasons for making the order.

On receiving a report under subclause (4), the director must forward a copy of the report to the Board.

27—Copies of level 2 orders and notices to be given to patients etc

A psychiatrist or authorised medical practitioner making a level 2 detention and treatment order must ensure that the patient is given, as soon as practicable, a copy of the order.

A psychiatrist or authorised medical practitioner making a level 2 detention and treatment order must ensure that the patient is given a written statement of rights informing the patient of his or her legal rights and containing any other information prescribed by the regulations.

The clause ensures that various measures are taken in circumstances where a patient is unable to read or otherwise comprehend the statement and that the director of a treatment centre in which a patient is first detained under a level 2 detention and treatment order must cause a copy of the order and statement of rights to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

Subclause (5) provides that if a level 2 detention and treatment order is revoked, the director of the treatment centre in which the patient is detained must—

ensure that the patient is given, as soon as practicable, a copy of the notice of revocation of the order; and

cause a copy of the notice of revocation to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

28—Treatment of patients to whom level 2 orders apply

A patient to whom a level 2 detention and treatment order applies may be given treatment for his or her mental illness or any other illness of a kind authorised by a medical practitioner who has examined the patient.

Subclause (2) provides that the treatment may be given despite the absence or refusal of consent to the treatment.

This clause does not apply to prescribed psychiatric treatment (as defined by clause 3), or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993. The administration of prescribed psychiatric treatment (as defined by clause 3) is governed by Part 7 of the measure.

If a medical practitioner authorises treatment of a patient to whom a level 2 detention and treatment order applies that is treatment of a kind prescribed by the regulations, the medical practitioner must ensure that the Chief Psychiatrist is sent or given, within 1 business day, a written notice in the form approved by the Minister.

Division 4—Level 3 detention and treatment orders

29—Level 3 detention and treatment orders

Proposed section 29 provides that the Board may make an order that a person be detained and receive treatment in an approved treatment centre (a level 3 detention and treatment order) if satisfied as to the matters set out as the grounds for a level 1 or level 2 detention and treatment order.

A level 3 detention and treatment order may be made, on application, in respect of a person to whom a level 2 or level 3 detention and treatment order applies.

Subclause (6) provides that the Board may, on application, by order, vary or revoke a level 3 detention and treatment order at any time.

30—Chief Psychiatrist to be notified of level 3 orders or their variation or revocation

The Registrar of the Board must ensure that the Chief Psychiatrist is notified, within 1 business day, of the making, variation or revocation of a level 3 detention and treatment order by the Board.

31—Treatment of patients to whom level 3 orders apply

A patient to whom a level 3 detention and treatment order applies may be given treatment for his or her mental illness or any other illness of a kind authorised by a medical practitioner who has examined the patient.

Subclause (2) provides that the treatment may be given despite the absence or refusal of consent to the treatment.

This clause does not apply to prescribed psychiatric treatment (as defined by clause 3), or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993. The administration of prescribed psychiatric treatment (as defined by clause 3) is governed by Part 7 of the measure.

If a medical practitioner authorises treatment of a patient to whom a level 3 detention and treatment order applies that is treatment of a kind prescribed by the regulations, the medical practitioner must ensure that the Chief Psychiatrist is sent or given, within 1 business day, a written notice in the form approved by the Minister.

Division 5—General

32—Detention and treatment orders displace community treatment orders

This clause provides that if a detention and treatment order is made in respect of a person to whom a community treatment order applies and the community treatment order is not revoked, the requirements of the community treatment order do not apply for the period of operation of the detention and treatment order (and if the community treatment order remains in force at the end of that period, the requirements of the order will apply again according to their terms).

33—Duty of director of treatment centre to comply with detention and treatment orders

This clause provides that if a person to whom a detention and treatment order applies is in the care and control of treatment centre staff and a detention and treatment order is made in respect of a voluntary patient in a treatment centre, subject to clause 35, the director of the treatment centre must—

if the person is not already admitted to the centre, admit the person to the centre; and

comply with the detention and treatment order.

34—Powers required for carrying detention and treatment orders into effect

This clause provides that treatment centre staff may exercise, in relation to a patient to whom a detention and treatment order applies who is present at, or has been admitted to, the centre, any power (including the power to use reasonable force) that is reasonably required—

for carrying the order into effect; or

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

35—Transfer of patients to whom detention and treatment orders apply

A patient to whom detention and treatment orders applies may be transferred to another treatment centre if the director of a treatment centre considers it is necessary or appropriate, after first arranging with the director of the other centre for the patient's admission to that centre.

Subclause (2) states that the director of a treatment centre in which a patient has been detained may give a direction—

for the patient to be transferred to a hospital, or between hospitals, in circumstances where the patient has or has had an illness other than a mental illness, after first arranging with the person in charge of the relevant hospital for the patient's admission to the hospital;

for the patient's transfer back to the treatment centre after completion of the hospital treatment.

If a patient to whom a detention and treatment order applies has been transferred to a hospital as a result of a direction under this clause—

the patient is, while in the care and control of staff of the hospital to be taken to continue in the care and control of the treatment centre staff; and

staff of the hospital may exercise the powers conferred by clause 34 in relation to the patient as if they were treatment centre staff.

The clause requires that a direction must be given in writing and that specified persons must be notified of a direction.

36—Leave of absence of patients detained under detention and treatment orders

This clause provides that the director of a treatment centre may, by written notice in the form approved by the Minister and subject to any conditions that the director considers appropriate, grant a patient detained in the centre leave of absence from the centre for any purpose and period that the director considers appropriate and specifies in the notice.

A copy of the notice by which the patient is granted leave of absence must be given to the patient before the patient commences the leave.

37—Persons granted leave of absence to be given statement of rights

The clause states that the director of a treatment centre who grants a patient detained in the centre leave of absence from the centre must ensure that the patient is given, before the patient commences the leave, a written statement of rights—

informing the patient of his or her legal rights; and

containing any other information prescribed by the regulations.

The clause ensures that various measures are taken in circumstances where a patient is unable to read or otherwise comprehend the statement and that the director must cause a copy of the statement of rights to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

38—Cancellation of leave of absence

The director of a treatment centre may, by notice in the form approved by the Minister, cancel any leave of absence from the centre granted to a patient under this Division.

Part 6—Treatment and care plans

39—Treatment and care plans for voluntary patients

This clause requires that the treatment and care of a voluntary patient in a treatment centre must, as far as practicable, be governed by a treatment and care plan directed towards the recovery of the patient.

The treatment and care plan—

must describe the treatment and care that will be provided to the patient at the treatment centre and should describe any rehabilitation services and other significant services that will be provided or available to the patient at the treatment centre or following the person's discharge from the centre; and

must, as far as practicable, be prepared and revised in consultation with the patient and any guardian, medical agent, relative, carer or friend of the patient who is providing support to the patient.

40—Treatment and care plans for patients to whom community treatment orders apply

This clause requires that the treatment and care of a patient to whom a level 2 community treatment order applies must, as far as practicable, be governed by a treatment and care plan directed towards the recovery of the patient.

The treatment and care plan—

must describe the treatment and care that will be provided to the patient under the requirements of the order and should describe any rehabilitation services and other significant services that will be provided or available to the patient under the requirements of the order or through the patient's voluntary participation; and

must, as far as practicable, be prepared and revised in consultation with the patient and any guardian, medical agent, relative, carer or friend of the patient who is providing support to the patient.

41—Treatment and care plans for patients to whom detention and treatment orders apply

This clause requires that the treatment and care of a patient to whom a level 2 or level 3 detention and treatment order applies must, as far as practicable, be governed by a treatment and care plan directed towards the recovery of the patient.

The treatment and care plan—

must describe the treatment and care that will be provided to the patient while in detention at the approved treatment centre and should describe any rehabilitation services and other significant services that will be provided or available to the patient while in detention at the treatment centre or following the person's discharge from the centre; and

must, as far as practicable, be prepared and revised in consultation with the patient and any guardian, medical agent, relative, carer or friend of the patient who is providing support to the patient.

Part 7—Regulation of prescribed psychiatric treatments

Division 1—ECT

42—ECT

Under this clause, ECT (electro-convulsive therapy) must not be administered to a patient unless—

the patient has a mental illness; and

ECT, or a course of ECT, has been authorised for treatment of the illness by a psychiatrist who has examined the patient; and

written consent to the treatment has been given—

by or on behalf of the patient; or

if the patient is under 16 years of age or consent cannot be given by or on behalf of the patient—by the Board on application under this clause.

Subclause (2) limits consent to a course of ECT to a maximum of 12 episodes of ECT and a maximum period of 3 months, and any second or subsequent course of ECT for a patient must be separately consented to after the commencement or completion of the preceding course.

ECT administered to a patient in order to determine the correct dose for future episodes of ECT in a course of treatment must be counted as a single episode of ECT in that course of treatment for the purposes of this clause.

Consent to the administration of ECT extends to the administration of anaesthetics required for the purposes of the ECT treatment.

Under subclause (6), consent to a particular episode of ECT is not required if a psychiatrist considers that—

the patient has a mental illness of such a nature that administration of that particular episode of ECT is urgently needed for the patient's well-being; and

in the circumstances it is not practicable to obtain that consent.

Notice of the administration of an episode of ECT to a patient without consent in reliance on subclause (6) must be sent or given to the Chief Psychiatrist, within 1 business day—

advising the Chief Psychiatrist of that action; and

containing any other information prescribed by the regulations.

Subclause (8) makes it an offence to contravene subclause (1).

Division 2—Neurosurgery for mental illness

43—Neurosurgery for mental illness

This clause provides that despite any other Act or law, neurosurgery must not be carried out on a patient as a treatment for mental illness unless—

the patient has a mental illness; and

the neurosurgery has been authorised for treatment of the illness by the person who is to carry it out and by 2 psychiatrists (at least 1 of whom is a senior psychiatrist), each of whom has separately examined the patient; and

the patient is of or over 16 years of age and written consent to the treatment has been given—

by the patient; or

if consent cannot be given by the patient—by the Board on application under this clause.

An application for the Board's consent under this clause may be made by a medical practitioner or mental health clinician.

Subclause (3) makes it an offence to contravene subclause (1).

Division 3—Other prescribed psychiatric treatments

44—Other prescribed psychiatric treatments

This clause provides that the regulations may regulate the administration of any prescribed psychiatric treatment (other than ECT or neurosurgery) by imposing requirements for prior authorisations or consents (or both).

Part 8—Further protections for persons with mental illness

45—Assistance of interpreters

This clause states that if—

a medical practitioner or authorised health professional intends to conduct an examination of a person for the purposes of the measure; and

the person is unable to communicate adequately in English but could communicate adequately with the assistance of an interpreter,

the medical practitioner or authorised health professional must arrange for a competent interpreter to assist during the examination of the person.

46—Copies of Board orders, decisions and statements of rights to be given

This clause provides that the Registrar of the Board must ensure that the patient is given, as soon as practicable after the making by the Board of an order or decision in respect of the patient, a copy of the order or decision and a written statement of rights informing the patient of his or her legal rights and containing any other information prescribed by the regulations.

The clause ensures that various measures are taken in circumstances where a patient is unable to read or otherwise comprehend the statement and that a copy of the order or decision and statement of rights are sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

47—Patients' right to be supported by guardian etc

This clause provides that a patient is entitled to have another person's support, wherever practicable, in—

the exercise of a right under the measure; or

any communications between the patient and a medical practitioner examining or treating the patient or between the patient and the director or staff of a treatment centre in which the patient is treated or detained.

48—Patients' right to communicate with others outside treatment centre

Subclause (1) ensures that a patient in a treatment centre is entitled to—

communicate with persons outside the centre; and

receive visitors at the centre; and

be afforded reasonable privacy in his or her communications with others,

subject to any restrictions and conditions that have been approved by the Director of the centre as being reasonably required for carrying into effect any detention and treatment order that applies to the patient or for the maintenance of order and security at the centre or the prevention of harm or nuisance to others.

Subclause (2) provides that no restrictions or conditions are to be applied under this clause to communications by post between a patient in a treatment centre and any of the following, or to visits to a patient by any of the following:

the Minister;

the Board;

the Public Advocate;

the Chief Psychiatrist;

the Health and Community Services Complaints Commissioner within the meaning of the Health and Community Services Complaints Act 2004;

a member of Parliament;

a legal practitioner (in the practitioner's professional capacity);

a person representing, or acting on behalf of, a person or body referred to in any of the preceding paragraphs;

a person of a class prescribed by the regulations.

49—Neglect or ill-treatment

This clause provides that a person having the oversight, care or control of a patient who ill-treats or wilfully neglects the patient is guilty of an offence.

Part 9—Powers relating to persons who have or appear to have mental illness

50—Issuing of patient transport requests

This clause provides that a patient transport request may be issued in respect of a patient as follows:

if a community treatment order applies to the patient and the patient has not complied with the requirements of the order, a medical practitioner or mental health clinician may issue the request for the purpose of the patient's transport for treatment in accordance with the order;

if a medical practitioner or authorised health professional has made a level 1 detention and treatment order in respect of the patient at a place other than a treatment centre, the medical practitioner or authorised health professional may issue the request for the purpose of the patient's transport to a treatment centre;

if the patient is a patient at large, the director of a treatment centre, a medical practitioner or mental health clinician may issue the request for the purpose of the patient's transport to a treatment centre;

if a detention and treatment order applies to the patient and the director of a treatment centre has given a direction for the transfer of the patient under Part 5 Division 5 to another treatment centre or hospital, the director may issue the request for the purpose of the patient's transport to the other treatment centre or hospital.

51—Powers of authorised officers relating to persons who have or appear to have mental illness

This clause sets out the powers of an authorised officer if—

an authorised officer believes on reasonable grounds that the person is a patient in respect of whom a patient transport request has been issued; or

an authorised officer believes on reasonable grounds that the person is a patient at large; or

it appears to an authorised officer that—

the person has a mental illness; and

the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.

The following powers may be exercised:

the authorised officer may take the person into his or her care and control;

the authorised officer may transport the person from place to place;

the authorised officer may restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances;

the authorised officer may restrain the person by means of the administration of a drug when that is reasonably required in the circumstances (and authorised under the Controlled Substances Act 1984);

the authorised officer may enter and remain in a place where the authorised officer reasonably suspects the person may be found;

the authorised officer may search the person's clothing or possessions and take possession of anything in the person's possession that the person may use to cause harm to himself or herself or others or property.

The clause sets out that an officer who takes a person into his or her care and control must, as soon as practicable—

in the case of a patient in respect of whom a patient transport request has been issued—transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, in accordance with the patient transport request; or

in the case of a patient at large—transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, to a treatment centre; or

in the case of a person requiring medical examination—transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, to a treatment centre or other place for medical examination.

52—Powers of police officers relating to persons who have or appear to have mental illness

This clause sets out the powers of a police officer if—

a police officer believes on reasonable grounds that the person is a patient in respect of whom a patient transport request has been issued; or

a police officer believes on reasonable grounds that the person is a patient at large; or

it appears to a police officer that—

the person has a mental illness; and

the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property; and

the person requires medical examination.

The clause provides police officers with similar powers to authorised officers, although the powers do not apply to a patient in respect of whom a patient transport request has been issued unless the person has subsequently become a patient at large. An additional power is provided to use reasonable force to break into a place when that is reasonably required in order to take the person into care and control.

The clause also provides that if a police officer has arrested or apprehended a person, the person may, despite any other law, be released from police custody for medical examination or treatment under the measure.

53—Officers may assist each other

This clause spells out that authorised officers and police officers may assist each other in the exercise of powers under the measure.

54—Roles of various officers

This clause contemplates a memorandum of understanding between relevant agencies about the respective roles of authorised officers and police officers.

55—Offence to hinder etc officer

This clause makes it an offence to hinder or obstruct an authorised officer or police officer in the exercise of powers under the measure.

Part 10—Arrangements between South Australia and other jurisdictions

Division 1—Preliminary

56—Interpretation

This clause contains definitions for the purposes of this Part.

57—Ministerial agreements

This clause contemplates intergovernmental agreements relating to the administration of this Part and corresponding laws of other jurisdictions.

58—Requests or approvals relating to actions involving other jurisdictions

The purpose of this clause is to ensure that action is only taken if it is contemplated by the relevant intergovernmental agreement and requested or approved by the relevant interstate officer.

59—Powers of South Australian officers under corresponding laws or Ministerial agreement

This is a formal provision accepting any conferral of jurisdiction on South Australian officers by a corresponding law.

60—Regulations may modify operation of Part

Flexibility is provided to enable the regulations to adjust the arrangements as necessary to fit in with the law of a particular jurisdiction.

Division 2—Community treatment orders

61—South Australian community treatment orders and treatment in other jurisdictions

This clause enables a South Australian patient to receive treatment under a South Australian community treatment order at an interstate treatment centre.

62—Powers of interstate officers

For the purposes of ensuring compliance with an interstate community treatment order, interstate officers are authorised to exercise powers in South Australia (except any power of forcible entry).

63—Interstate community treatment orders and treatment in South Australia

This clause covers the situation where an interstate community treatment order requires the person to receive treatment in South Australia. The interstate order is to be complied with as if it were a South Australian order on the same terms.

64—Making of South Australian community treatment orders when interstate orders apply

The Chief Psychiatrist is able, under this clause, to make a South Australian community treatment order mirroring an interstate community treatment order for a person who is now in South Australia without the need for a separate medical examination. Such an order is to be regarded as if it were a level 1 community treatment order.

Division 3—Transfer to or from South Australian treatment centres

65—Transfer from South Australian treatment centres

This clause deals with the transfer to an interstate treatment centre of a patient detained in or at large from a South Australian treatment centre at the direction of the director of the South Australian treatment centre.

66—Transfer to South Australian treatment centres

This clause deals with the acceptance in a South Australian treatment centre of a patient detained in or at large from an interstate treatment centre. The patient is to be regarded as subject to a level 1 detention and treatment order.

67—Patient transport requests

This clause provides for the issuing of patient transport requests where there has been patient transfer under the Division.

68—Powers when patient transport request issued

This clause ensures that authorised officers have appropriate powers in relation to a patient for whom a patient transport request has been issued.

Division 4—Transport to other jurisdictions

69—Transport to other jurisdictions when South Australian detention and treatment orders apply

This clause deals with the situation where a South Australian detention and treatment order has been issued but the person is to be admitted to an interstate treatment centre.

70—Transport to other jurisdictions of persons with apparent mental illness

This clause provides for the situation where a South Australian officer has taken into his or her care and control a person who appears to have a mental illness and to require medical examination but the person is to be assessed interstate.

71—Transport to other jurisdictions when interstate detention and treatment orders apply

This clause covers the situation where a South Australian officer believes on reasonable grounds that a person in South Australia is an interstate patient at large. The person—

may be taken into the care and control of a South Australian authorised officer;

may be transported to an interstate treatment centre by a South Australian authorised officer;

may be delivered by a South Australian authorised officer into the care and control of an interstate authorised officer (whether in or outside South Australia) for the purpose of the person's transport to an interstate treatment centre;

may be taken to a South Australian treatment centre by a South Australian authorised officer and detained there pending the person's transport to an interstate treatment centre;

may be given treatment for his or her mental illness or any other illness in South Australia, without any requirement for the person's consent, as authorised by a medical practitioner who has examined the patient.

The clause also gives interstate officers powers to deal with the person if found in South Australia.

Division 5—Transport to South Australia

72—Transport to South Australia when South Australian detention and treatment orders apply

This clause provides for the transport of a patient back to South Australia if the patient is at large from a South Australian treatment centre and found interstate.

73—Transport to South Australia of persons with apparent mental illness

This clause covers the situation where a person to be assessed for mental illness has been taken into care and control outside the State but the person is to be assessed in South Australia.

Part 11—Reviews and appeals

Division 1—Reviews

74—Reviews

The Board may conduct a review of an order or treatment as it considers appropriate and is required to conduct the following reviews:

a review of the circumstances involved in the making and revocation of a level 1 community treatment order if the order was not reviewed by the Board before its revocation (which review must be conducted as soon as practicable after the revocation of the order);

a review of a level 2 community treatment order that has been made in respect of a child and continues to apply to the person 3 months after the making of the order (which review must be conducted as soon as practicable after the end of the period of 3 months);

a review of the circumstances involved in the making of a level 1 detention and treatment order if the order has been made within 7 days after the expiry or revocation of a previous detention and treatment order applying to the same person (which review must be conducted as soon as practicable after the making of the level 1 detention and treatment order);

a review of a level 3 detention and treatment order that has been made in respect of a child and continues to apply to the person 3 months after the making of the order (which review must be conducted as soon as practicable after the end of the period of 3 months);

any review that is required under the regulations.

75—Decisions and reports on reviews

The Board is required to revoke an order if not satisfied that there are proper grounds for it to remain in operation and may otherwise affirm, vary or revoke an order or make an order for review of a treatment and care plan. The Board is authorised to draw particular matters to the attention of the Minister.

Division 2—Appeals

76—Appeals to Board against orders (other than Board orders)

The following persons may appeal against an order to the Board:

the person to whom the order applies;

the Public Advocate;

a guardian, medical agent, relative, carer or friend of the person to whom the order applies;

any other person who satisfies the Board that he or she has a proper interest in the matter.

77—Operation of orders pending appeal

The Board may suspend or vary the operation of an order pending an appeal.

78—Representation on appeals to Board

This clause provides for entitlement to legal representation and for the provision of legal representation.

79—Appeals to District Court and Supreme Court

The Guardianship and Administration Act 1993 provides for appeal from Board decisions.

Part 12—Administration

Division 1—Minister and Chief Executive

80—Minister's functions

This clause provides that the Minister is to have the following functions for the purposes of the measure:

to encourage and facilitate the involvement of persons who currently have, or have previously had, a mental illness, their carers and the community in the development of mental health policies and services;

to develop or promote a strong and viable system of treatment and care, and a full range of services and facilities, for persons with mental illness;

to develop or promote ongoing programmes for optimising the mental health of children and young persons who are or have been under the guardianship or in the custody of the Minister pursuant to the Children's Protection Act 1993;

to develop or promote services that aim to prevent mental illness and intervene early when mental illness is evident;

to ensure that information about mental health and mental illness is made available to the community and to promote public awareness about mental health and mental illness;

to develop or promote appropriate education and training programmes, and effective systems of accountability, for persons delivering mental health services;

to promote services in the non-government sector that are designed to assist persons with mental illness;

to develop or promote programmes to reduce the adverse impact of mental illness on family and community life;

any other functions assigned to the Minister by the measure.

81—Delegation by Minister

This clause provides for delegation of Ministerial functions and powers.

82—Delegation by Chief Executive

This clause provides for delegation of the Chief Executive's functions and powers.

Division 2—Chief Psychiatrist

83—Chief Psychiatrist

The Governor is to appoint a senior psychiatrist as Chief Psychiatrist.

84—Chief Psychiatrist's functions

The Chief Psychiatrist is to have the following functions:

to promote continuous improvement in the organisation and delivery of mental health services in South Australia;

to monitor the treatment of voluntary patients and patients to whom detention and treatment orders apply, and the use of mechanical body restraints and seclusion in relation to such patients;

to monitor the administration of the measure and the standard of psychiatric care provided in South Australia;

to advise the Minister on issues relating to psychiatry and to report to the Minister any matters of concern relating to the care or treatment of patients;

any other functions assigned to the Chief Psychiatrist by the measure or any other Act or by the Minister.

The Chief Psychiatrist may, with the approval of the Minister, issue standards that are to be observed in the care or treatment of patients.

85—Delegation by Chief Psychiatrist

This clause provides for delegation of the Chief Psychiatrist's functions and powers.

Division 3—Authorised medical practitioners

86—Authorised medical practitioners

This clause provides for the Minister to make determinations as to the persons who will be authorised medical practitioners for the purposes of the measure.

Division 4—Authorised health professionals

87—Authorised health professionals

This clause provides for the Minister to make determinations as to the persons who will be authorised health professionals for the purposes of the measure.

Division 5—Treatment centres

88—Approved treatment centres

This clause provides for the Minister to make determinations as to the places that will be approved treatment centres for the purposes of the measure.

89—Limited treatment centres

This clause provides for the Minister to make determinations as to the places that will be limited treatment centres for the purposes of the measure.

90—Register of patients

The director of a treatment centre is required to keep certain records about patients.

91—Particulars relating to admission of patients to treatment centres

This clause is designed to ensure that any person who has a proper interest in the matter can determine whether a particular person has been or is detained in a treatment centre. The clause also requires information to be provided to the person detained.

92—Delegation by directors of treatment centres

This clause provides for delegation of the functions and powers of a director of a treatment centre.

Part 13—Miscellaneous

93—Errors in orders etc

This clause is designed to ensure that non-substantive defects in orders, notices and instruments do not render them invalid.

94—Offences relating to authorisations and orders

This clause establishes offences for medical practitioners, authorised health professionals and others in relation to the giving of authorisations or the making of orders.

95—Medical practitioners or health professionals not to act in respect of relatives

Medical practitioners and authorised health professionals are not able to act in respect of any of their relatives.

96—Removing patients from treatment centres

This clause makes it an offence to remove a patient who is being detained in a treatment centre from the centre, or to aid such a patient to leave the centre.

97—Confidentiality and disclosure of information

Personal information obtained by a person in the administration of the measure is not to be disclosed except as authorised or required by the Chief Executive or in the circumstances set out in subclause (2).

Under subclause (2) information may be disclosed—

as required by law, or as required for the administration of this measure or a law of another State or a Territory of the Commonwealth; or

at the request, or with the consent, of the person to whom the information relates or a guardian or medical agent of the person; or

to a relative, carer or friend of the person to whom the information relates if—

the disclosure is reasonably required for the treatment, care or rehabilitation of the person; and

there is no reason to believe that the disclosure would be contrary to the person's best interests; or

subject to the regulations (if any)—

to a health or other service provider if the disclosure is reasonably required for the treatment, care or rehabilitation of the person to whom the information relates; or

by entering the information into an electronic records system established for the purpose of enabling the recording or sharing of information in or between persons or bodies involved in the provision of health services; or

to such extent as is reasonably required in connection with the management or administration of a hospital or SA Ambulance Service Inc (including for the purposes of charging for a service); or

if the disclosure is reasonably required to lessen or prevent a serious threat to the life, health or safety of a person, or a serious threat to public health or safety; or

for medical or social research purposes if the research methodology has been approved by an ethics committee and there is no reason to believe that the disclosure would be contrary to the person's best interests; or

in accordance with the regulations.

98—Prohibition of publication of reports of proceedings

This clause makes it an offence to publish a report on proceedings under the measure except as authorised by the Board.

99—Requirements for notice to Board or Chief Psychiatrist

This clause makes it an offence for a medical practitioner to fail to send or give a notice to the Board or the Chief Psychiatrist as required.

100—Evidentiary provisions

This clause provides evidentiary aids for the purposes of legal proceedings.

101—Regulations

This clause provides general regulation making power.

Schedule 1—Certain conduct may not indicate mental illness

This clause sets out certain conduct that is not to be regarded on its own as being indicative of mental illness. It is based on the United Nations principles for the protection of persons with mental illness and for the improvement of mental health care and similar provisions appear in the corresponding New South Wales legislation.

Schedule 2—Repeal and transitional provisions

1—Repeal of Mental Health Act 1993

The Mental Health Act 1993 is repealed.

2—Transitional provisions

This clause includes appropriate transitional provisions relating to orders, authorisations, consents and proceedings under the current legislation.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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