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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-24 Daily Xml
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MENTAL HEALTH BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 March 2009. Page 1566.)

The Hon. M. PARNELL (22:14): The Greens support this bill, which we see as a timely and important reform to mental health law in this state. At the outset, I want to put on the record that I have an indirect personal interest in the subject matter of this bill, in that my wife is a deputy president of the Guardianship Board, which is the body responsible for a number of decisions under both the present legislation and this bill.

I have received a number of submissions on this bill over the past two years, in particular from the Law Society and the Mental Health Coalition of South Australia. I would also like to acknowledge that I appreciate the two briefings that I had from government officers and a personal briefing with minister Lomax-Smith last week.

The Mental Health Coalition of South Australia advised that it welcomes this bill and supports its timely passage into law. It states that it regards the bill as a considerable improvement on the old act and, in particular, it supports the bill's potential for enabling, as opposed to enforcing, treatment and appropriate care.

The Mental Health Coalition of South Australia states that the bill reflects changes in social and health policy in line with community expectation about a more inclusive mental health system. It states that in particular the focus on the consumer and carers, as well as a philosophical aspect that acknowledges the importance of community and recovery in a person's wellbeing, is welcome.

The Mental Health Coalition, however, states that it is concerned that the bill does not deal with some other legislation that impacts on mental health and it sees this as a missed opportunity for South Australia to lead the nation in mental health reform and legislation. It was particularly concerned that in conjunction with this bill we should also have been reviewing the Guardianship and Administration Act 1993, the Criminal Law Consolidation Act 1935 and the Criminal Law Sentencing Act 1988.

One of the main shortcomings in the existing legislation that this bill goes some small way towards addressing is the lack of any cross-border arrangements to enable South Australian mental health patients to receive treatment interstate and for interstate patients to receive treatment here.

Whilst this issue has been discussed at a national level for over a decade, my understanding is that the only formal agreement that has been reached is with the Northern Territory government, and that that is particularly aimed at Aboriginal patients in the northern part of our state being able to be treated in Alice Springs.

So, my question for the minister is: where are the ministerial agreements with the other six Australian jurisdictions? Because in the absence of formal agreements with the other states, we have a situation where there is some potential abuse of cross-border transfers of mental health patients in order to remove persons with mental illness from our jurisdiction and responsibility.

On the other hand, however, it may be appropriate, in fact more appropriate, for persons to be treated interstate, especially where a person's support networks, such as their family, are interstate. So, getting these cross-border arrangements right is very important and I would like the minister to address this in her summing up or in the committee stage of the bill.

I now want to address one of the important aspects of the bill and that is community treatment orders. The bill recognises, as does the existing act that it replaces, that not every single patient needs to be detained in order to secure compliance with a treatment program. Clearly, there is a spectrum of approaches, with purely voluntary arrangements at one end of the spectrum and involuntary detention and treatment at the other end of the spectrum.

Quite properly, this bill focuses on the more coercive end of the spectrum, because that is where the law needs to create clear rules that govern the serious matter of a breach of a person's right to freedom and liberty. The bill provides that decisions must be made on the objects and guiding principles of the bill.

However, within this framework there is also the further requirement that orders should not be made unless 'there is no less restrictive means' of ensuring appropriate treatment of a person's illness.

In general, I think that is a good approach. Community treatment orders or even detention orders are not there for the convenience of the medical system or staff: they are there for the benefit of patients. However, I am not convinced that the new set of requirements that must be met before a community treatment order or even a detention order can be issued are as clear as they could be.

Under section 19 of the current act, one of the considerations in issuing an order is that the person has refused or failed or is likely to refuse or fail to undergo the treatment voluntarily. Under clause 10 of the new bill, that requirement is missing and, instead, there is the new consideration of there being 'no less restrictive means' than a community treatment order of ensuring appropriate treatment of the person's illness. That similar requirement exists under the detention order provisions of the bill, as well.

I think that the decision-maker should be required to take into consideration the likelihood of a person complying with their treatment without an order before the decision-maker makes an order. In other words, if there is every likelihood that the person will comply of their own free will, then there should not be the need for an order. I think there should be an additional test along the lines that it is more likely than not that a person will refuse or fail to undergo the treatment for the proposed period of the order.

I think that that proviso is important—the proposed period of the order—because sometimes people do comply with their treatment regime for a while and then they stop. So, that should be the test of the decision-maker: how likely are they to comply with their treatment for its duration? I have asked parliamentary counsel to come up with a form of words that directs the decision-maker's mind to this issue, with the evidentiary standard being one of the balance of probabilities rather than a higher standard of mere likelihood.

In relation to detention orders, these are at the most coercive end of the spectrum of mental health treatment, that is, the power to detain patients against their will in a psychiatric hospital in order to ensure treatment. For some patients this will be the best strategy and, in fact, the only strategy to help them to overcome their mental illness. The regime that is proposed under this bill is slightly different from the current arrangements but, at its most basic level, it is similar in that there are various periods of time for which detention orders can be made with various checks and balances at each stage of the process.

I want to refer briefly to the most recent annual report of the Guardianship Board of South Australia, because it deals at some length with the checks and balances that apply in relation to involuntary detention, that is, people detained in psychiatric hospitals against their will. The Guardianship Board's 2007-08 Annual Report at page 35 states:

A person may challenge a decision or order to detain them. There are certain rights of appeal against detention orders made by doctors and psychiatrists to the appeals division of the Guardianship Board, which is a separate division of the Guardianship Board and only hears appeals against detention orders made by doctors.

At page 37 it further states:

As detention to hospital clearly involves a significant incursion into a person's autonomy and self-determination, the right to challenge such detention under section 26 of the Mental Health Act, provides an important check and balance in the system. Most commonly, a detained person may argue that they do not have a mental illness, they do not require treatment in hospital or they do not pose a risk to themselves or other people.

One of the safeguards that apply in relation to people being able to appeal against their detention is their ability to access legal representation. I will quote three paragraphs from the Guardianship Board's last annual report as follows:

As a further safeguard detained persons have a right to free legal representation in appeal hearings (under section 27 of the act). If the person has not chosen their own lawyer, a lawyer may be appointed from a panel of self-nominated lawyers who are willing to act in the appeals jurisdiction. The majority of appeal hearings involve lawyers who make submissions on behalf of their clients. Legal arguments generally relate to the technical validity of the detention forms, the reliability of evidence before the board, or relevant decisions of the Administrative Appeals Court, which are binding on the Guardianship Board.

The role of a legal representative in this jurisdiction is not an easy one and this is reflected in the diverse manner of representation and personal styles employed by those on the panel. Frequently, due to the nature of their illness at the time of the appeal, their clients do not have full capacity to give instructions—or to understand the implications of the instructions they are giving. Their lawyers face a dilemma about the manner and extent to which they should put their instructions. In some cases there is risk that overzealous rhetoric—justifying or minimising psychotic symptoms such as grandiosity or paranoia for instance, may reinforce a detained person's symptoms and lack of insight into their illness. Although this may constitute robust advocacy, it is not in the interests of a person who is unwell. Similarly, while it is important to thoroughly test the evidence upon which findings of illness or risk may be based (with serious consequences for liberty and autonomy), confrontation or cross-examination of medical staff or family members is not appropriate.

In some cases the nature of the evidence is such that it is distressing for the detained person to hear about their behaviour or the views of others in minute detail. Others perceive that all evidence about them is negative, or they feel disparaged or humiliated. Aggressive cross-examination of medical staff by lawyers can serve to elicit more detail than is helpful to the detained person and may damage the therapeutic relationship. In other cases, evidence from family members or community mental health workers can serve to reinforce persecutory thinking or increase a risk to the safety of those people because of potential retaliation against them by the detained person. For many detained persons their ongoing relationships with their carers and family are crucial for their long-term welfare, well beyond a temporary stay in hospital. The balance between adequately representing their interests in the appeal hearing, and the maintenance of important relationships into the future, requires wise and sensitive handling by legal representatives.

The reason for my raising those concerns that come from the Guardianship Board's annual report is to invite the government to respond to those concerns. That is my question: how will the government address those concerns? In particular, I am interested to know what program of training the government will put in place to assist lawyers to understand the nature of the jurisdiction and to help them to advocate appropriately for their clients.

Will the government consider making appropriate professional training a prerequisite to inclusion on the self-selected legal panel in this jurisdiction? In posing these questions, I would say that I think that some level of professional development of lawyers in this jurisdiction is essential. However, it is by no means a lucrative area of practice, and there are already significant cost disincentives on lawyers to work in this field. I suggest that this professional training for lawyers should be provided at no charge. In fact, there would even be a case for our paying the lawyers on these panels at the fairly miserly Legal Aid rates to attend professional development so that they can provide the best help possible to the mentally ill in our community.

The next point I will address is the community visitor scheme. This is the subject of an amendment, which I think the Hon. Michelle Lensink has put on file. I note that it has a good deal of support in the mental health community. In fact, the Mental Health Coalition felt that the failure of bill to provide immediate transparency, through an independent tribunal and a community visitor scheme, was disappointing.

The Mental Health Coalition points out that a visitor scheme was a key recommendation in Ian Bidmeade's report into the review of mental health legislation in South Australia entitled 'Paving the Way'. As I understand it, all other jurisdictions in Australia currently have community or official visitor programs to strengthen consumer participation and ensure that services are responsive to their needs. I do not propose to outline the official or community visitor programs in all other jurisdictions, but I will point out that the Victorian scheme celebrated recently its 21st birthday, yet no such scheme operates in South Australia.

The Mental Health Coalition, as I said, is an advocate for an independent or community visitor program, and that has been its position for some time. The value of an official visitors program is that it can safeguard standards of treatment and care and can advocate for the rights and dignity of people being treated under the Mental Health Act. The way in which such a scheme would work is that the visitors would make regular visits to mental health institutions, they would talk to patients, they would inspect records and registers, they can report on the standard of facilities and services, they can liaise with staff about issues of concern and then they can report back to the minister.

I think that the time has come for such a scheme. I understand that the government is not opposed in principle to a community visitor scheme but that it desires such a scheme to be constructed with a view to its supervising more than just mental health. However, at the heart of the government's concerns I really see a reluctance to spend the money that the scheme could require. I also note that one advantage of the community visitor scheme is that it is a proactive scheme and it is not a complaints resolution scheme. It is not reliant on people making complaints for the community visitor to identify problems.

Of course, that is entirely consistent with the view that the government has taken in other areas. Again, we come back to the equal opportunity legislation where the commissioner is to have independent powers of investigation without requiring a particular complainant. The official visitors that operate in other jurisdictions are appointed by the government. One question that has been raised is whether or not we have existing within government people who could already fulfil this role without creating a new scheme. The office that is most commonly pointed to is the Office of the Public Advocate. When I raised this, the Mental Health Coalition pointed out that, whilst that might be an appropriate home for an official visitor scheme, it did not have the resources to do this work.

In fact, I was directed to the Office of the Public Advocate's annual report for the year 2007-08, which states:

Vulnerable adults living in residential or community accommodation, or in hospitals, are often at a disadvantage in terms of understanding their rights and having a voice to advocate for their needs. The Victorian Public Advocate recently celebrated the 22nd birthday of its community visitor scheme. This program is not an inspectorate or complaints management scheme, rather, it seeks to monitor the wellbeing of individuals and advocate for their rights. Independent volunteers provide feedback to the Public Advocate on systems issues. South Australia is the only state that does not have such a scheme. Such a scheme would fit within the state's strategic objective of community capacity building.

I note further that the annual report included a tribute to the outgoing public advocate, Mr John Harley. That tribute included the following words:

John's biggest disappointment was that he had to leave his position without achieving the establishment of a robust community visitors scheme in this state—a vision which has had widespread support amongst local advocates and service providers and is in existence in some form in all other states.

Unless the government comes up with an alternative model for a community visitor scheme, I will be supporting the Liberal amendment. My view is that the government has had long enough and has had enough encouragement from within government and the community to get this right. If it has not done it up until now it does not have much longer to do it, and I will be supporting the Liberal amendment if the government does not produce its own scheme very quickly.

I want to briefly comment on one of the other amendments that has been filed by the Liberals. That amendment relates to a criminal offence of harbouring or assisting a patient at large, that is, someone who may have escaped involuntary detention. I make the point at this stage that I will not be supporting any such amendment. I do not think it is appropriate to be attaching criminal liability to those who seek to help people with mental illnesses, even if such help is misguided or counterproductive. However, for now, I support the second reading of the bill.

Debate adjourned on motion of Hon. B.V. Finnigan.

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