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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-03 Daily Xml
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MENTAL HEALTH BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 February 2009. Page 1421.)

The Hon. J.M.A. LENSINK (17:39): I rise to indicate opposition support for this bill. It was originally tabled in this council under the carriage of the former minister for mental health and substance abuse and arises from a report by Ian Bidmeade which was commissioned by the former minister for health, Lea Stevens, as I understand it.

An honourable member: Another sacked woman!

The Hon. J.M.A. LENSINK: Yes, indeed, another sacked woman, as my colleague interjects. This report, entitled 'Paving the Way', was provided to the government in April 2005 and was a review of mental health legislation. It included not only the Mental Health Act but also the Guardianship Act and looked at the criminal justice system. This is the first in those areas of legislation to formally come to parliament, and I would like to place on record as a formal question to the government: what is the status of the review of the Guardianship Act and the matters arising out of the review of the criminal justice system?

I think it is fair to say that the Bidmeade report was very well received by all stakeholders. I think it was a highly appropriate response and very balanced in its approach to the needs of people with mental health difficulties. As the minister's second reading explanation states, this bill is essentially about the 3 per cent of people who have a mental health issue at any stage of their life who may potentially need their liberties curtailed for reason, usually, of some psychosis, and that is a particular definition which is in the first part of the bill that has been changed.

It is very important that it is being framed in the correct way. There are a number of changes to the existing act, particularly when it comes to treatment orders. It really is, in fact, the wrong way round in that a person cannot be on a community treatment order until they have actually been detained in the mental health system. I think that most people recognise that it is far more desirable for people to be treated in the community than to have to undergo some sort of detention in an acute facility and thereafter be placed on a community treatment order.

I think it is fair to say that it does greatly modernise many ways in which people with mental illness at the pointy end (so to speak) will be treated. The language is modernised. There are references to voluntary patients and very extensive provisions in relation to level 1 and 2 community treatment orders and then level 1, 2 and 3 detention and treatment orders.

There are areas which I think are grey areas for us as legislators, particularly the neurosurgery issue which we were told in our briefing has never actually taken place. Many people would probably be quite disturbed by some of the activities that happened in the United States in the 1960s where even children were given frontal lobotomies, but that has not been the case in South Australia in particular.

There are other areas that are new. Part 8 of the bill refers to further protections for persons with mental illness including interpreters, copies of board orders and decisions of statements of rights to be given, patients' rights to be supported by a guardian, issues of neglect and ill-treatment. The transfer arrangements between South Australia and other jurisdictions is an area about which the Law Society, in particular, has raised concerns, and I may refer to some of those as well.

Another area relates to reviews and appeals which, in the first instance, will be heard by the Guardianship Board and, from there, in the District Court and the Supreme Court. The bill also outlines functions of the minister and a new position, which is the Chief Psychiatrist. It also has clauses about authorised medical practitioners and authorised health professionals.

In the other place, the health spokesperson, the member for Bragg, moved an amendment in relation to authorised health professionals. I think we need to recognise that they will now be entitled to detain people—that is, deprive them of their liberty. We had concerns about the expansion of that range of professionals, in that it will include not just psychiatrists who have received that specific training, of course, but also mental health nurses, social workers and even occupational therapists and psychologists.

We had an amendment relating to those particular concerns which I will not be moving; it is somewhat covered by the fact that the government has accepted the Liberals' amendment. This means they will be bound by a code of practice, something that was put to us by stakeholders; in fact, I believe it was John Brayley, former director of mental health services in this state, who is now the Public Advocate. He has concerns about community treatment orders; in particular, that they should be used carefully with a broad range of well-resourced support services and should have effective checks and balances. Dr Brayley said that they will need additional training so that they are neither too vigorous nor too lax in their decisions to detain.

In relation to authorised health professionals, I would like some assurances from the government as to what training it intends to provide to this group of people. From what it said in its second reading speech and in relation to opposing the Liberals' amendments, they will be highly credentialed people (I may be paraphrasing what was said) with a great deal of expertise.

I think part of the concern with expanding the range of professionals who can detain people to beyond psychiatrists is that there may be a 'dumbing down' of the system; that people with lesser qualifications will be used to cover the fact that there may be a shortage in the current regime of people who can detain, that is, psychiatrists. I would like to know from the government whether it has identified anyone within the system who, in its view, would qualify as authorised health professionals. I would also like the government to advise what the number of those would be and from what professional discipline they come.

There is also a section here about treatment centres, including limited treatment centres that will be available in the country, which I think is to be welcomed. In relation to those country treatment centres, I think (from memory) of the order of 30 beds were to be provided under that provision, and I would like the government to advise the status of those beds and where they will be located, whether they will be solely in the fully upgraded, country regional centres or whether they would be in other centres as well.

The bill also makes it explicit that it applies to children. I have read through the old act and clearly the provision for children was not in that act, so would the government advise whether there was any legal ambiguity as to whether the Mental Health Act has ever applied to children (not that I have any problem with it)? Video conferencing is also used extensively, particularly by the rural and remote unit at Glenside, which has psychiatrists with doctors at the remote locations on video link to share information, so that will be formally recognised within the new legislation.

There has been a change to the definition of neurosurgery from psychosurgery. I understand from my former life in the health professions that neurosurgery is much broader than just psychosurgery, so I would like an explanation from the government as to why it thinks that 'neurosurgery' is better terminology than 'psychosurgery', which I would have thought narrowed the bill's aims.

The bill makes it explicit that there should be regular medical examination of patients, and it also makes provision for treatment and care plans to be included in the legislation, and I think that is laudable. Again referring to my experience, medical practitioners vary a great deal in terms of how well they communicate with their multidisciplinary team—some are excellent, some are hopeless and some are just downright arrogant—so I think it is good to put this in the legislation to ensure that it is actually required and that the care plan is much more transparent to other health practitioners and family members. We will move an amendment which proposes that those care plans be provided to the Guardianship Board when they are reviewed for orders.

I have compared clause 8 with section 11 of the existing act, and I note that subsection (3) has been deleted. My question is: if someone is admitted as a voluntary patient but subsequently needs attention, will the centre no longer be able to detain, or has this provision been made elsewhere?

As to clause 9 of the bill, which refers to voluntary patients being given a statement of rights, and which also refers to guardians and so forth, I assume that the government will use best endeavours to find the next of kin. What is the process? In the first instance, do they ask the patient or, if the patient cannot and does not respond, what is the process thereon?

My understanding is that, under the current act, a person must be admitted into hospital before a CTO can be issued only by the Guardianship Board. Part 4 is likely to expand the number of people who potentially will be captured by this legislation, and my question for the government is: does this mean that it expects that there will be more involuntary acute detentions as a result of the passage of this bill, and what changes within the system has it made to cope with that capacity?

Questions have been raised, particularly by the Law Society, about the definitions under which somebody can be detained. For example, I note that these clauses are identical whether it is a community treatment order or an involuntary detention within an acute hospital. For instance, clause 10(1)(b) provides:

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;

I note that this is a change from the existing act. There are a few aspects to this. We, on the Liberal subcommittee, debated amongst ourselves about whether we should include the issue of deterioration of the person's condition. I accept the government's explanation that this is because, being a lower level test, it will more likely capture people who may become unwell, rather than waiting for them to become unwell, as can happen in the current system.

I also note that Bidmeade recommended that the deterioration aspect of it should be included. There are also elements that the Law Society question: for instance, the definition of 'harm'. It states that it should instead be health and safety.

Parliamentary counsel has advised me that the reference to health and safety has been included because of the difficulty of interpretation, and I accept that definition as well. I would appreciate it if the government could provide on the record some information about the background it has to those definitional aspects. I understand that health and safety has been quite difficult to interpret within the courts, therefore 'harm' has been used instead; and it is also used in other jurisdictions. I think it would be good if the government could place those particular aspects on the record.

I refer to the transfer provisions, which people have raised with us as being an area of extreme concern. I ask the government: under this bill, is there any possibility that a person can be sent interstate on a transfer order without first being reviewed by a psychiatrist? It has been put to us that that is a possibility. I think that most people would find that suggestion quite disturbing. I note that new clause 78 of the bill will provide some appeal rights, and I think that is to be commended. We will also be moving a number of amendments to allow MOUs between states, and they will provide a guide as to how they will be undertaken.

Back on the issue of authorised health professionals, another question is whether the government anticipates that any other profession—other than occupational therapists, mental health psych nurses, social workers or psychologists—will be captured. As an example, I refer to dentists or physiotherapists, although I would have thought that that would be unlikely.

Clause 85—Delegation by chief psychiatrist—is a new provision. Subclause (1) allows the chief psychiatrist to delegate powers or functions. My question for the government is: under what circumstances is that likely to occur? For instance, if the chief psychiatrist is on leave, or is it a deliberate means to manage the workload? Division 3—Authorised medical practitioners—is a new area. My question to the government is: what has this section been created for? Is it for psychiatrists, forensic psychiatrists or for medical practitioners with some psychiatric experience but who are not actually qualified psychiatrists?

My question on clause 91 is: how is the proper interest determined? For instance, I think that a parent of an adult child should qualify. There would certainly be others who should not, but parents are not now told about what happens to their adult children when they are in treatment and when they are discharged. So, what is anticipated to change? Clause 93 relates to errors in orders etc., and in relation to subclause (2) I ask whether the government is aware of any such cases having occurred.

The Liberal Party will be moving a series of amendments (about five) to introduce a community visitors scheme, which was a key recommendation of Ian Bidmeade's review 'Paving the Way'. We suspect that the government's decision to omit it was likely taken because of resource implications and also because the government is not keen on introducing consumer advocates within acute settings. However, I think that all health professions working within the health system would be largely supportive of a community visitors scheme. I am told that some form of community visitors scheme operates within every jurisdiction in Australia, except South Australia.

We feel it is very important that people with a mental illness, who are some of the most vulnerable people in our community, have some form of advocacy. They may be estranged from family and they may not have many close friends, and we believe it is very important that they have someone who is able to provide some assistance to them and some form of advocacy.

We are also changing the fine regimes, because this bill does not update the maximum financial penalties that were set down in 1993. Division 4 fines, as described in the current act, are $20,000; and for division 5, $10,000. So, for those similar penalties, we have respectively increased the $20,000 fine to $50,000, and the $10,000 fine to $25,000 to reflect some form of CPI increase.

We will also be moving that treatment and care plans be provided to Guardianship Board reviews, as recommended by the Bidmeade report. My amendment No. 19 will introduce an offence for assisting an absconded patient. This amendment introduces a new offence for harbouring and/or criminally failing to report a detained person who has absconded from a treatment centre, which is similar to the existing clause 96 and which is a recommendation made by the Coroner in his findings into the death of Damian Paul Dittmar on 16 March 2006, as reported on 24 October 2008. The Coroner made a recommendation that those who assist an absconded detained patient to evade apprehension should be subject to criminal proceedings. In the findings of that inquest, the Coroner said:

During the course of that afternoon [15 May 2006]...[Mr Dittmar] was detained. He remained in the Emergency Department of the Queen Elizabeth Hospital for a good part of the afternoon but, while still under detention, left the hospital without permission and proceeded to the premises of a male friend in whose company he remained for the rest of the night. The police were notified of the fact that Mr Dittmar had absconded, but inquiries conducted that night failed to establish...[his] whereabouts.

In the weeks leading up to his death, he had been detained under the act. On one earlier occasion, he was discharged and the existing detention order was revoked. At paragraph 10.7, the Coroner said:

Whatever the legal position may be, it is my recommendation that the act of knowingly assisting an absconded detained patient to evade apprehension should be criminalised. Having regard to the underlying reasons that led to a person being detained under the Mental Health Act, one would have thought that such activity should be heartily discouraged.

In my view, the position of a detained patient at large is to be distinguished as that of a missing person who is not unlawfully at large, and we will therefore seek to have such a clause inserted into this bill.

The final point relates to the review date; that is, the new act will be reviewed after four years. Part of the rationale for that is to keep tabs on how some of the areas where we have specific concerns are operating and so that we may have another look at them.

I think governments generally resist having review dates because administratively they cause quite a lot of work. I believe that under this new regime the chief psychiatrist will be keeping a lot of statistics, which will be very useful. As I have said, we have concerns about the authorised health practitioners, and concerns have been raised about interstate transport and community treatment orders.

Dr John Brayley articulated very well that community treatment orders, indeed any orders, should not be used because they are easier to use than having what is known in the sector as assertive care, that is, a broad range of well resourced support services to ensure that these things are being implemented, because there is a reliance, to a degree, on this bill and there is a reliance on the professionalism of practitioners.

While I do not doubt that most people who work within the sector are doing it for the right reasons, there can be issues of culture which can creep into any sector, whether it is mental health or otherwise. As I have said, these are some of the most vulnerable people and are, therefore, most vulnerable when people are not doing the right thing by them.

For all of the various areas that we have concerns about, we think that this bill should be reviewed within four years and closely examined to ensure that correct training is taking place, that people are not being unnecessarily subject to treatment orders and that they are not being transported in the middle of the night, as has been put to us, without any rights able to be exercised by those people. I seek leave to conclude my remarks later.

Leave granted; debate adjourned.


At 18:08 the council adjourned until Wednesday 4 March 2009 at 14:15.


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