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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-30 Daily Xml
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MENTAL HEALTH BILL

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. J.M.A. LENSINK: I move:

Page 6, after line 37—

After definition of community treatment order insert:

community visitor means—

(a) the person appointed to the position of Principal Community Visitor under Part 8 Division 2; or

(b) a person appointed to a position of Community Visitor under Part 8 Division 2;

This is the first of a number of amendments; I will address the others as they arise. This is to support a community visitor scheme, which was a key recommendation of Ian Bidmeade's report from his review into the 1993 mental health act entitled 'Paving the way'. I quote from that report on pages 79 and 80; point 21.2: community visitors. He states:

All States, apart from South Australia, have community visitor schemes to provide external monitoring of mental health and disability services. While the Health and Community Services Complaints Commissioner (recently established by legislation but not yet in operation)—

and bearing in mind that it was 2005 that this was reported—

will be able to investigate complaints, community visitor schemes offer the opportunity for ongoing checking of what is happening on the ground. The Victorian Mental Health Act 1986 for example empowers community visitors to inquire into:

the adequacy of services for assessment and treatment;

facilities;

opportunities for recreation, training, etc;

the best possible care in the least possible restrictive environment; and.

complaints made by consumers to a community visitor.

The scheme in Victoria is administered by the Public Advocate. A similar scheme of official visitors in New South Wales is administered by the New South Wales Ombudsman (Community Services Division).

Similar schemes for South Australia have been suggested in the past and have been endorsed in submissions to the Committee. An inter-departmental committee administered by the Mental Health Unit of the Department of Health is investigating the concept at the present time in relation to people with a mental illness, or intellectual disability.

So, here we are four years later and the government does not have anything on the table. The report continues:

One obvious issue in a Small state like South Australia is whether the people involved in such schemes could play other roles, such as advocacy, or assistance to consumers coming before the Guardianship Board. Another is whether the visitors should be looking at standards of care, or be more focused on a personal supportive relationship with individual consumers. We support any such scheme being housed with the Public Advocate to emphasise advocacy and synergy with other advocacy roles.

The recommendations are:

21.1 The act should provide for an involuntary patient to be supported by a relative, friend, carer, guardian or advocate during assessment, detention and treatment where possible.

21.2 There is a need to evaluate further how the advocacy needs identified in this report can be met. It should involve advocacy agencies and the commonwealth...

21.3 The Committee [which is the relevant recommendation in this section] supports work being done to establish a community visitor scheme in the mental health area.

Those recommendations are some four years old.

This clause inserts a definition of community visitor into the definitions at the front of the bill. Also, in support of a community visitor scheme we have the Carers Association, which I think has written to all honourable members. I will not read that into the record, for the sake of time. Also, I note that Mr Geoff Harris, who is the CEO of the Mental Health Coalition of South Australia, has been extensively involved in community visitor schemes in former appointments in the Northern Territory.

The Mental Health Coalition has provided its submission to the South Australian budget 2009-10. Its 11th recommendation is that an official visitor scheme be included. It states that, on its estimations, in 2009-10 the cost would be $1 million; in 2010-11, $1.1 million; and in 2011-12, $1.2 million, which is a very small amount of funding in order to provide for the human rights of people with mental illness who are in South Australian institutions.

Most telling, on page 21 of the submission in Appendix 1 is a table, and again I will not read all of this out; I think it has probably been circulated to a number of members. The Victorian system is outlined there, which ours is modelled on; New South Wales has an official visitor scheme; Queensland has a community visitor program; WA has a council of official visitors; Tasmania has an official visitor scheme; the Northern Territory has a community visitor program; and the ACT has an official visitor program. South Australia has—in big, bold capital letters—no program.

It is our belief that the current provisions that the government has provided are completely inadequate. It says it is working on something; it has taken some time to develop this bill and for some four years now it has been in its genesis, and I would have thought that in that context enough work done could have been done on a visitor scheme to have produced something to put before us. I commend this amendment to the committee.

The Hon. G.E. GAGO: The government does not support this amendment. The amendment and subsequent amendments regarding a community visitor scheme are not supported. The reason for this is that a scheme of this type, in which a number of ministers and their agencies have an interest as well as a range of non-government agencies and consumers, needs to be given much greater thought before it is established in a bill or in any other form.

The government response to the review of the health and community services complaint acts was tabled in the House of Assembly on 3 March 2009. This is what the government said in response to a recommendation that the community visitor scheme should be established: 'Supported in principle'.

The government acknowledges that some consumers in receipt of health and community services are vulnerable or unwilling to raise concerns about their care fear of retribution. This may be the case for children in care, people with a disability, people with a mental illness and the aged living in government and non-government residential care.

The government will investigate the feasibility of establishing a community visitor scheme for vulnerable service users. This work will involve examining those schemes currently operating in other jurisdictions to determine the most appropriate model for this state. There is also the interaction with other schemes that are currently operating in the state, such as those already in place in nursing homes run by the Australian government, and the most appropriate governance arrangements and auspicing.

Members will note that the government has given support for a community visitor scheme. The government will ensure that a range of work is undertaken in consultation with stakeholders and come up with a scheme that will provide a more comprehensive coverage of the vulnerable population groups in the community than the scheme that is the subject of these amendments. It is a comprehensive scheme that is required and not one that focuses only on those facilities and consumers covered by the Mental Health Bill.

While there is much to commend the scheme anticipated by the amendments, it will not provide the flexibility that will be required to meet the needs of all those with an interest in a scheme of this type. The scheme before parliament assumes that the current or former medical practitioners and psychologists know about mental health issues by virtue of the fact that they are a medical practitioner or psychologist. Some will but many will not, and it is therefore not appropriate to single out these professions as potentially contributing more to a community visitor scheme than a mental health nurse or social worker with extensive experience in the mental health system. No one profession meets all of the needs of the people in the mental health system; therefore, no profession should be singled out as potentially able to contribute more.

The government has agreed in principle to the development of a suitable scheme. The Mental Health Bill has anticipated the development of the scheme by including provisions that enable one to be established in the regulations. When the work I have previously referred to is undertaken, it will help to determine precisely the provisions that need to be included in the regulations. People have requested a community visitor scheme for many years now. This government has agreed in principle to establishing one, which accommodates the views of a range of different groups. Work can commence now that the government has made its views clear and with its response to the review of the Health and Community Services Complaints Act.

The Hon. M. PARNELL: The Greens will support this and subsequent amendments that relate to the community visitor scheme. In my second reading speech over a month ago I said that, unless the government came up with an alternative model, I would support the Liberal amendment. I have not heard anything from the government, other than a repeat yesterday and again today of the minister's position that the government supports in principle the establishment of a community visitor scheme and that it is committed to undertaking consultation.

In my second reading contribution I referred to some of the final words of the outgoing public advocate, John Harley, who expressed the view that one of his biggest disappointments was leaving the office before such a community visitor scheme had been established. In the absence of any more concrete proposals from the government, I will support this particular community visitor scheme.

The Hon. DAVID WINDERLICH: I also put on the record that the Democrats will support the opposition's amendment for the same reasons advanced by the Hon. Mark Parnell. It is a valuable support in the functioning of the mental health system and also a means of ensuring some sort of accountability and contact with the outside world to have a structured visitors scheme for people who are in detention.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 8, after line 21 [clause 3, definition of prescribed psychiatric treatment]—After paragraph (b) insert:

(ba) the prescription, supply or administration of a drug containing atomoxetine or methylphenidate or other prescribed substance as a treatment for mental illness of a child who has not attained 12 years of age; or

This amendment is necessary because, as I said in my statements on the bill last night, now ADD/ADHD will be included in DSM-IV as a mental illness. I also stated that the number of signs and symptoms used to determine ADD/ADHD are far-reaching and there are a great variety of them. I have a number of FOIs—I will not read through all of them—obtained through the Therapeutic Goods Administration on the adverse affects of the drugs I am talking about—Strattera, Ritalin and other dexamphetamines—and the adverse effect these drugs have on kids.

I am also aware that none of these drugs has ever been approved for anyone under the age of 18 years, yet we are finding them being prescribed for kids two, three and four years old. I am seeking to have that practice prohibited and hope that common sense prevails in the chamber.

The Hon. G.E. GAGO: The government opposes the amendment. The issue of prescribing of drugs falls under the scope of the Controlled Substances Act and not the Mental Health Bill. Secondly, it is not the place of the politicians on the floor of parliament to dictate clinical decisions a medical practitioner should be making after assessing a patient and after many years of appropriate training and education. Finally, the Minister for Mental Health and Substance Abuse has pre-empted this issue and only last week advised the Ministerial Council on Drug Strategy of South Australia's intention to lead research to be carried out by Drug and Alcohol Services SA (DASSA) into the prescribing of drugs for the treatment of ADHD, and we believe that is the more appropriate pathway to go.

The Hon. A. BRESSINGTON: If these drugs have never been approved by the TGA to be prescribed to anyone under the age of 18 years, how is it that the state does not see that it has a duty of care?

We have an authority in place (the Therapeutic Goods Administration) that is saying that these drugs are not approved for anyone under the age of 18, and then doctors are allowed to prescribed these same drugs to two, three or four year old children. We have four year olds on Zoloft, and that is not included in this, sadly. I just want to know why it is not within the jurisdiction of this parliament to make sure that decisions of a higher authority than the medical profession (that is, the Therapeutic Goods Administration) are upheld, when those determinations are backed up by research.

The Hon. G.E. GAGO: I understand the member's passionate interest in this particular area, but it is outside the purview of this legislation. As I have said, the prescribing of drugs falls under the scope of the Controlled Substances Act, not the Mental Health Bill, and the approval of medications and their classification all come under commonwealth legislation. We are aware that there are problems around ADHD, and we believe that pursuing it through the federal ministerial forum is the appropriate course of action.

The Hon. M. PARNELL: The Greens do not support the amendment, because we believe that these clinical decisions are more properly in the realm of professional medical decision-makers rather than the parliament.

The Hon. DAVID WINDERLICH: The Democrats will not be supporting this amendment, because we believe it relates to a clinical decision. I do want to say that I share the Hon. Ann Bressington's concern about this issue and her scepticism about the medicalisation of many aspects of mental illness. The ADHD issues is probably only the tip of the iceberg. So, even if we were to support this amendment, it would really address only one small part of the problem. However, as I have said, as it relates to clinical judgments and because the problem is not clearly defined enough, I will not be supporting it.

The Hon. J.M.A. LENSINK: I concur with the comments made by the minister. I think it is beyond the scope of this legislation. I think we all understand and share the honourable member's concerns about ADHD and so forth, but it really is within the realm of other legislation and jurisdictions to make a determination on this particular matter.

Amendment negatived; clause as amended passed.

Clauses 4 to 9 passed.

Clause 10.

The Hon. DAVID WINDERLICH: I move:

Page 12, line 10 [clause 10(1)(b)]—Before 'harm' first occurring insert 'serious'

I have moved this amendment as a test. If the committee is supportive of this amendment, that will be an indication of whether the remainder of my amendments will succeed. The insertion of the word 'serious' seems very simple, but it has attracted some fairly strong opinions.

The Carers Association is opposed to this, because it is concerned that it will mean that mental illnesses will have to deteriorate before they can be acted upon. I have sought to amend the bill in this way because we are talking about fairly fundamental infringements on a person's liberties, and I believe that is also the view of the government.

In relation to detention, which relates to clauses 21 and my amendments Nos 5, 6, 7 and so forth, I think people understand that issue more clearly, that is, that detention is a major infringement on someone's liberty and that it should be approached with some caution. The idea of community treatment orders seems more benign, but community treatment orders often involve very powerful drugs with very powerful side effects. Therefore, I think the threshold for intervention should not be too low. The threshold at which you begin to lose your ability to say no to certain treatments or to face detention should be fairly high.

The effects of some of these drugs have been described in one research paper prepared by some researchers from Queensland University, the Program of Psychosocial Health Research at the Central Queensland University, the Department of Psychiatry at the University of Queensland, and Bayside Health Services District Hospital in Cleveland. Several authors have prepared this report, and I will quote some of the comments: ' a very individual thing.'; and 'findings on drug therapy and psychiatry from the perspective of Australian consumers.'

The consumers who were asked about the effects of the drugs they were administered gave the following accounts:

Agitation that was pretty hard to deal with. I remember smacking quite a few doors not long after I came out of hospital.

Restlessness. I heard it was something like induced Parkinson's disease, and I had a lot of that.

Weight gain. I put on 18 kilos.

I didn't quite know how to deal with how I felt about these pills.

Thirstiness. I was thirsty all the time and did not feel like myself.

Heart condition, and I believe to this day that the weakness in my heart is what caused me to have ventricular tachycardia because I was put on those heavy drugs.

Lack of motivation.

I'd go into hospital. They would over-sedate me again, and I'd find myself not being able to work and not being able to apply myself and lapsing back into the lounge chair and smoking cigarettes and drinking coffee, and that's my existence.

You don't have enough motivation to have a shower in the morning.

All my teeth were rotted out from overdosing.

I couldn't wake up.

I used to have a sense of humour, but I've lost that. It's trapped somewhere. I don't know; haven't laughed in years.

In fact, some of these symptoms could probably be described as mental illnesses in themselves, except they are the result of drugs to treat mental illnesses. Understandably, people want to be able to say no to them, particularly once they become used to the effects of certain drugs—and the point of that research paper is that it is very individual. So the point at which we deny people the right to say no to drugs that have those sorts of effects becomes fairly important. There is also a view (again, in this research paper, and it is a view I have had reported to me by an advocate for the mentally ill here in South Australia) that prescription of drugs is virtually automatic, or at least extremely common. The same report from which I quoted before states:

A strong common theme reported by all participants is the idea that there is an automatic use of drugs within the psychiatric system, creating immediacy and pressure for the consumer to embrace a drug-based response to their illness. As the following statement indicates, doctors and psychiatrists were described as having a therapeutic imperative to use drugs: 'I understood that there's this process. He needed to, because he was a doctor, to go through and try medication.'

I am sure there are many exceptions to this, but it is certainly a widely reported problem. I believe that the government will argue that the word 'serious' is too subjective and will not allow a preventative approach; however, we use the word 'serious' in legislation all the time. We have a Serious and Organised Crime (Control) Act, and we have an amendment before us in relation to the Public Sector Bill and provided by the government that talks about serious breaches of the codes of conduct, or words to that effect. So it is a word we use very frequently in legislation. Dr John Brayley, former director of the Mental Health Unit and now the Public Advocate, knows this issue from both sides. He has said:

The proposed criteria refer to protection from harm without qualification of the probability of harm or the level of harm. It is recommended that South Australia return to the criteria described by Ian Bidmeade in Paving the Way, which are based on United Nations mental-health principles...

And that United Nations mental health principle 16 uses the word 'serious'. If we have a blueprint on mental health it is the Bidmeade report, and that report itself discusses the concerns raised by the government and by carers in the following way:

Apart from mental illness, a crucial basis for compulsory orders such as detention or treatment orders is that the person is unable to look after his or her own health and safety. Some doubts about what this means have been raised. Does it allow intervention not only at a point of crisis such as attempts at suicide, but also to prevent deterioration to that point? The Victorian act was amended in 1995 to deal with this issue. It provides for a person to be detained or ordered to have treatment 'for his or her own health and safety (whether to prevent a serious deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public.

So the Victorian act uses the word 'serious', and it also uses the words 'health and safety', which are stronger than 'harm', which is proposed in this bill. Bidmeade then goes on to recommend:

It should be clarified that a mentally ill person can be detained or ordered to have treatment where there is a serious likelihood of immediate or imminent harm to the person or others, or serious deterioration in the person's physical or mental condition.

So, a range of experts in this area see no problem with the word 'serious'. The amendments I have moved relate to community treatment orders at several levels. They also relate to detention. However, to summarise, we are talking about very significant incursions on people's civil rights and on their liberties, and it seems to me that we need a reasonable threshold if we are to start to infringe on people's rights and liberties that way.

A general description such as 'harm' seems to me to be too open, so I have proposed the word 'serious', which is also the word advocated by Dr John Brayley, which is also in the Bidmeade report, and also in United Nations principle 16, which states that the involuntary detention should only be on the basis that because of the illness 'there is a serious likelihood of immediate or imminent harm to that person or to other persons' or serious deterioration. So, there are ways to have this threshold at the appropriate level and still allow for a preventative approach. It is a fairly simple check on the risks posed by setting the threshold of intervention too low.

I believe it is also worth reflecting on some of the points that have been made about the way in which mental illnesses are diagnosed and the way the industry functions. It is a very complex and flawed area, and there is vigorous debate about the extent to which commercial interests are driving the diagnosis of mental illness, and the ability to prescribe, manufacture and sell drugs that flows from that. This is by no means a black and white area; it is very complicated.

I should also say that I have a mentally ill friend. I spent last weekend with that person, and she said to me, 'If it were not for the drugs, I couldn't get up in the morning.' So, I am also fully aware that there is absolutely a role for that form of treatment, but there is a lot of history of concerns, documented abuses, excesses and excessive medication. If we combine that with the powers envisaged under this bill, then we need to have some safeguards in place. In this case that would simply be to increase the threshold at which intervention could take place by inserting the word 'serious' in these half dozen clauses.

The Hon. G.E. GAGO: This is an area into which a great deal of work and consideration has gone. It has been agonised over by some of our best technical, medical and legal minds, and we believe what the bill proposes is the right balance. It provides a wide range of checks and balances while still allowing intervention to occur early in the piece, and we know the importance of having the capacity to intervene early and prevent acute and catastrophic episodes of mental illness. The government very strongly opposes this amendment, and I urge members to think very carefully about this provision.

According to the dictionary, the word 'serious' can mean anything from 'more than trifling' to 'critical'. Bearing in mind that this act will be interpreted in the courts, we want it made very clear that the harm which may be suffered by a person themselves or other people does not have to be critical. This fits with the government's policy agenda to ensure that people with mental illness receive early intervention in their illnesses which, as I said, can prevent those acute, catastrophic episodes.

The policy objectives of the mental health bill reflected in the objects of the act include: facilitating the recovery of a person through the provision of a comprehensive range of services; enabling the person to retain their freedom, rights, dignity and self-respect to the extent compatible with protecting the public and the individual; and enabling people to make orders to achieve these objectives.

In keeping with the first objective, facilitating the recovery of the person, the current criteria for involuntary intervention reflect the following principles which are supported by research evidence: the earlier a person is treated for mental illness, the better the outcome; untreated mental illness can lead to irreversible damage to the brain; and a person with untreated psychosis is significantly more at risk of self harm or committing a crime than a person whose illness has been treated.

If a person with a serious mental illness is not willing to voluntarily accept treatment, mental health legislation establishes a threshold for the criteria for involuntary intervention. The criteria for involuntary intervention contained in the bill specify the conditions that must be satisfied before a medical practitioner or authorised health professional can make an order. The psychiatrist or authorised medical practitioner can confirm that order.

Determining the precise threshold for involuntary treatment in any mental health legislation is a matter of balancing the competing interests in a manner that is acceptable to stakeholders and achieves policy objectives. The competing interests are essentially: the right of the individual to autonomy and self-determination; the desire to protect mentally ill people from harming themselves; the right of the public to protection in the small number of cases which involve violent behaviour directed at others by a mentally ill person; the recognition that a mentally ill person does not generally have the capacity to make decisions in their own interests; and that treatment can be of benefit to people.

I stress that the criteria for making an order in this bill aim to ensure that an order can be made when a person is so unwell that they will not accept treatment and they need the treatment to protect themselves or others. That is what the criteria aim to do. We do not define the extent of the harm necessary for qualifying. We do this because we believe that these sorts of protections are enshrined in the fact that all the criteria have to be considered in that decision, such as, the least restrictive environment, and all those things that I put on the record last night.

It is not just one criterion, and I think that is what the honourable member is doing: he is just taking one criterion out and looking at that in isolation. There is a range of criteria that have to be applied in consideration of these very important decisions, and I believe that they, in totality, provide and afford adequate protections to the rights of that individual while still protecting public interest and the health, safety and wellbeing of that particular individual.

The other protection is the fact that, even if all those criteria are met, this bill provides only that an order may be made. It is not required to be made; discretion can still be applied by the appropriate professionals. Being a former healthcare professional and having had some experience, albeit limited, in this area, the other really important aspect of this is that there are often well-known patterns of behaviour from the person's own history that we have on record.

For instance, early onset psychosis in young people tends to have particular characteristics and take a particular form and it can end up, as I said, in profoundly acute psychotic, catastrophic episodes—catastrophic in terms of not just what it does to that individual in terms of brain damage and the length of time required to recover but also the impact that it has on the family. There are some well-known patterns.

This provision allows for a professional to be able to make those assessments, to look at patterns of behaviour, to look at the past history of that person and to be able to require a person to make an order early in the piece when they suspect that there is a pattern or course of action that that person is undertaking that could lead to very profound and damaging results, without the person having to travel down the path of becoming seriously ill and demonstrating these very serious signs and symptoms.

I urge members to think very carefully. One of the things that has had us hamstrung in the past has been that we have not had the legislative support to be able to intervene early in the interests of the welfare of that particular individual and the welfare of the community generally. This is one of those very important provisions that enables early intervention and, therefore, protection and prevention. It is a fundamental part of the proposed reform before us.

The Hon. J.M.A. LENSINK: I think that the minister has very well articulated the argument against this amendment, and I would like to endorse all her comments. I understand where the honourable member is coming from. Indeed, the Liberal opposition had a look at these suggestions, which I think probably arose from the Human Rights Committee of the Law Society. This whole bill is such a balancing act in terms of the rights of people who will be subject to involuntary orders—whether they are in the community or in a treatment centre—versus the best interests of their health and their outcomes.

We all acknowledge that there have been some absolutely appalling practices. People with mental illness have been subject to some really horrible treatment in the past, and there is therefore a concern that we never want to revisit those days. This amendment would increase the threshold of one of the criteria. We need to reach the stage where, if those who are in a position to detain someone are in doubt, they are supported in relation to admitting a person. I think that the minister outlined some very disturbing research that came out of New South Wales about first episode psychosis, and the statistics relating to people in their first episode.

Given that some people may never have demonstrated or been known to a mental health system in the past and therefore have no impact with the mental health system, we really need those people to receive treatment as soon as possible, as the minister has outlined. We need to give a clear message to the mental health system that its decisions are driven by the best interests of the patient, their treatment and recovery, rather than feeling like there will be some retribution from an act of parliament that not all the criteria have been fulfilled to the letter of the law.

We will not be supporting these amendments, although I do understand where this suggestion is coming from. I would like to add another reason why we need a community visitors' scheme to protect people in this situation and also why we should have a review date set for the act so that we can look at all these issues: in four years' time the chief psychiatrist will be in a position to have access to a great deal of data which should be able to drive any future amendments to the legislation as we go forward.

The Hon. A. BRESSINGTON: Before I direct a question to the minister, I would like to make a brief explanation. In my second reading contribution to this bill, I quoted research that showed that a high percentage of people diagnosed with schizophrenia and bipolar are found to have been infected with certain viruses and pathogens that cause inflammation of the brain, similar to encephalitis, which brings on the signs and symptoms of schizophrenia/bipolar. When people are treated with a course of certain antibiotics, those signs and symptoms go as the viral infection clears up.

How many schizophrenia/bipolar diagnoses have been made in South Australia within the last 18 months, and how many of those people diagnosed in the last 18 months have been subject to the sort of testing that would be required to identify whether those pathogens are present—or even, as the research suggested, a lumbar puncture may also sometimes be necessary. Is that sort of testing conducted prior to the prescription of antipsychotic medication or prior to anyone seeking an order to have a person detained because of these diagnosed illnesses?

The Hon. G.E. GAGO: In terms of the numbers, I do not have that information here, and I do not know whether the information is available. If it is, we can attempt to get it. In terms of what the honourable member is alluding to, in fact, she is quite right: there are lots of things we do not know about mental illness, including the causes of schizophrenia. There are many different theories around the causation of schizophrenia, but that has been a similar pattern right throughout medical history, not just in terms of mental illness but of other illnesses.

They often start off as theories and are not proven by science for many years. Sometimes they are proven to be right and, of course, sometimes they are proven to be wrong. There is lots of evidence in our history where we have got it wrong, as we have found with science developing and technologies improving. I understand the point the honourable member is making, but those judgments about what tests are appropriate, the amount of research that should be done on various areas and the sorts of tests that should be conducted are matters of clinical judgment and assessment, and they are based on the best science available to us at this point. That is not always adequate but that is the best that we can do, and that is the best we can expect our medical professionals to do.

The Hon. A. BRESSINGTON: Given that the minister did not actually answer my question, I will repeat it. All I am asking is: do we test people who are diagnosed with schizophrenia or bipolar for any pathogens? It is a simple blood test to ascertain the presence of these viral infections. Do we do that at any stage with people who are diagnosed with schizophrenia or bipolar? I was not alluding to anything: I quoted viable research, which indicated that almost 60 per cent of people who participated in quite a large study were found to be infected with these viruses and pathogens. Do we test for anything else? Do we try to find the origin of the behaviour that we are seeing in order to provide the right treatment?

The Hon. G.E. GAGO: I do not know the answer to that question. As I said, the decisions with respect to what profiles are done and what diagnostic tests are conducted on patients, in terms of trying to identify and diagnose and then treat, are matters of clinical judgment and assessment and they are based on the best scientific information available.

The Hon. M. PARNELL: I think this is an important debate for us to have, because in clause 10 we are looking at the first of the coercive orders. I think that what needs to be driving us as a parliament is that we do not want to put in place laws which are unnecessarily coercive and which unnecessarily intervene in people's lives, whether it is through orders or detention.

The question that then arises is whether the level of harm to the individual or to another person is a valid consideration, and I think the answer would have to be that it is a valid consideration. There is a very big difference when we consider someone who might be hearing voices that are urging them to go and hurt someone compared to someone who might just have very unusual personal behaviours that may not be mental illness. So, I think the level of harm is a relevant consideration.

However, the honourable member's amendment goes further than that. It proposes a threshold where only serious harm triggers the intervention of community treatment orders and, in the subsequent amendments, detention and treatment orders as well. So, the question then becomes: is that the appropriate test, that only serious harm to the person or to someone else is the threshold? I think the answer to that question is no.

I do not think it is inconsistent. I think that the potential for harm is a very relevant consideration in the making of all of those coercive orders. However, to constrain decision makers so that only serious harm triggers intervention would mean, as the minister eloquently described, that opportunities for early intervention could be missed.

It also raises the important question, when we are talking about harm to third parties as well as harm to the person with a mental illness: why only 'serious'—two broken arms versus one broken arm? What level of harm should we as community members have to put up with before the mental health system intervenes?

I think that the honourable member's amendment is important for us to debate, and there are other amendments that we will look at as well about appropriate checks and balances. As the level of intervention escalates, we need to be much more careful to make sure that we do not unnecessarily intervene in people's freedoms. For those reasons, I will not be supporting this amendment.

The Hon. DAVID WINDERLICH: I have a question about the advice sought in the consideration of this issue. I would like to read a fairly brief extract from the advice I have received from John Brayley, the Public Advocate, because the key matter that he raises is that there is an issue of civil liberties. There is also an issue of what is going to make for a best treatment system. He said:

The minister has given the example of first episode psychosis in her second reading speech as a basis for broadening detention criteria. This information is not disputed. However dedicated early psychosis services generally emphasise engagement and early intervention through psycho education. If involuntary care is needed, the new scientific evidence that has been cited in the speech—

that is, the minister's speech—

can be used to support an argument that the person is at a significant [serious] risk of harm.

I inserted the word 'serious'. He did not use the word, but I cited earlier his referring to the word 'serious'. He went on to say:

This is a practice issue in recognising the risk, not an issue requiring broadening of legislation.

He continued:

The proposed criteria are similar to existing criteria in Victoria. I understand in that state it is difficult for people to have a community treatment order ceased when they are stable due to the deterioration clause. The criteria also allow ready readmission. The frequent use of such criteria can lead to a breakdown of relationships between services and some patients who then do not engage in care in the long run, perpetuating risk.

It is relevant to note that the evidence base for the benefit of community treatment orders is very limited... In contrast, there is strong evidence for the use of proactive community mental health services that go out to people and actively engage consumers. The strategic emphasis needs to be on accessible services that engage people rather than making larger numbers of people receive services they do not want. Broad involuntary criteria may act as a negative strategic driver to mental health reform as it removes an incentive to provide services that proactively engage people into care.

To formulate that more clearly, there is a clear view from someone who is an expert in this field on both sides that you can have a negative effect by focusing more on involuntary treatment; therefore, you try to engage people rather than detain or mandate treatment. I am wondering whether the minister has in her consideration of this bill looked at the possible negative consequences upon treatment of a focus on involuntary approaches to treatment.

The Hon. G.E. GAGO: I agree with the honourable member insofar as there are clearly different views about this by different professionals. For instance, our chief adviser in psychiatry, Dr Margaret Honeyman, does not agree with those views that the member outlined. He attributed them to John Harley, but he may have meant Dr John Brayley.

The Hon. David Winderlich: I did.

The Hon. G.E. GAGO: Yes, I thought so. Dr Margaret Honeyman does not agree with the views of Dr John Brayley. However, I accept that there are different views. As I said, we have agonised over this provision to try to ensure that we get the balance right, because whenever you infringe on people's rights it must be for an appropriate reason, and the appropriate risks must be outweighed. We believe that they are, for the reasons I have already put on the record.

With respect to another issue, the honourable member outlined the engagement of the client in the treatment. These provisions do not exclude that; in fact, it is best practice that that type of engagement would occur, and that would continue to occur even if these provisions were not put in place. A number of elements were put in place to provide protections. One matter which I have not mentioned and to which I will just draw your attention now is that I understand the opposition will put forward an amendment for a review after four years. The government will support that amendment. We think it is a very good idea and that it does afford certain protections and enables us to scrutinise and tweak the system and make sure we get it right after four years. If there are problems that eventuate around the way the criteria operate and are applied, they will be identified with that review and we would look at changing them.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 12, after line 16—

After subclause (1) insert—

(1a) In considering whether there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis.

In my second reading contribution I foreshadowed that I thought an amendment like this was necessary, because I wanted to make sure that decision makers put their mind to the likelihood of whether a person would or would not voluntarily undergo treatment. In other words, even though the wording of the bill talks about doing things in the least coercive way possible, I wanted to make sure that decision makers drew their minds to whether or not a person would voluntarily cooperate.

I notice that I did make a mistake in my second reading speech; I referred to section 19: in fact, it is section 20. I say at the outset that the intent of my amendment is to incorporate into this bill one of the considerations that are already in the Mental Health Act. Section 20 of the current Mental Health Act that the Guardianship Board has to be satisfied that a person has refused or failed or is likely to refuse or fail to undergo the treatment. Those words, as I understand it, can cause some difficulties, in terms of whether a person is first entitled to be given a chance to do something voluntarily and then fail before a coercive measure can be put in place.

It seems to me that we can incorporate that concept in the current bill in the way that I have done it in this amendment. My amendment proposes that, when decision makers are considering whether there is no less restrictive means, consideration must be given—amongst other things, so not exclusively—to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis.

I have introduced these identical words into five different parts of the bill, that is, community treatment orders levels 1 and 2; then we get the more onerous orders, the detention and treatment orders levels 1, 2 and 3. Last night, in answering the questions that we had all put on notice, as it were, in our second reading contributions, the minister basically said that she believed it was already a relevant consideration. She said:

Determining whether or not a person is likely to comply with voluntary treatment is part of the range of factors that need to be addressed when an order is being considered.

What my amendment effectively does is to put into legislative form the words of the minister last night, namely, that one of the factors that you have to take into account is whether or not the person is likely to undertake their treatment voluntarily, so this does not introduce any element into the decision making that is not already in the mental health system, and it is naming something the minister agrees will need to be taken into account anyway.

In those circumstances it does seem to provide clarity. It is not seeking to insert some additional consideration that is new or novel or has not been put there before, and I do not think it does any harm, but that is not the test. The test is whether or not it improves the legislation, and I think it does improve the legislation, because it goes to that question of people being able to have more of a say in their own treatment without coercive measures coming into effect if that is a possibility for them. If there is a likelihood that they will comply with their medication, for example, let them have that chance.

These are sensible amendments. Rather than saying this one is a test for all the others I will reserve my rights on that because, as we get to the more onerous levels of detention and treatment, I think the need for a provision like this becomes more important. For now, I am proposing to insert that additional subclause (1a) into the community treatment order, level 1 clause.

The Hon. G.E. GAGO: The government supports all of these amendments in relation to that issue. We believe that this helps clarify the intent of the bill and therefore we will be supporting them.

The Hon. J.M.A. LENSINK: I have also given this consideration. It clarifies what might be slightly ambiguous, and it is a laudable provision to include in the legislation.

Amendment carried; clause as amended passed.

Clauses 11 to 15 passed.

Clause 16.

The Hon. M. PARNELL: I move:

Page 15, after line 19—After subclause (1) insert:

(1a) In considering whether there is no less restrictive means that a community treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis.

I understand that the government might support this amendment as well, so, for exactly the same reasons that I thought it was appropriate for level 1 orders, I think it is appropriate for level 2 orders.

Amendment carried; clause as amended passed.

Clauses 17 to 20 passed.

Clause 21.

The Hon. M. PARNELL: I move:

Page 17, after line 31—After subclause (1) insert:

(1a) In considering whether there is no less restrictive means than a detention and treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order.

I move the amendment for the same reason as before.

Amendment carried; clause as amended passed.

Clauses 22 to 24 passed.

Clause 25.

The Hon. M. PARNELL: I move:

Page 20, after line 25—After subclause (2) insert:

(2a) In considering whether there is no less restrictive means than a detention and treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order.

Amendment carried; clause as amended passed.

Clauses 26 to 28 passed.

Clause 29.

The Hon. M. PARNELL: I move:

Page 23, after line 8—After subclause (1) insert:

(1a) In considering whether there is no less restrictive means than a detention and treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order.

Amendment carried; clause as amended passed.

Clauses 30 to 38 passed.

Clause 39.

The Hon. J.M.A. LENSINK: This is the first clause that refers to treatment-in-care plans. I ask the government about the scope for private psychiatrists who may have been seeing somebody in the community to have some input into treatment-in-care plans when somebody is treated, whether voluntarily or involuntarily in an approved treatment centre.

The Hon. G.E. GAGO: We expect that to occur and it would be deemed good practice.

Clause passed.

Clauses 40 and 41 passed.

Clause 42.

The Hon. J.M.A. LENSINK: I move:

Page 29, line 24 [clause 42(8), penalty provision]—Delete '$20,000' and substitute '$50,000'.

I have had a series of amendments drafted relating to changes to fine regimes. The Mental Health Act 1993, passed some 15 years ago, contained what were deemed division 4 and division 5 penalties. Division 4 was four years or a $15,000 fine, and division 5 was two years or an $8,000 penalty. The four years and two years remain the same, and we understand the reasons for that, but the division 4 fine has increased from $15,000 to $20,000 over a 15-year period.

I propose that in the comparable penalties that that be $50,000. Furthermore, where the government has increased it from $8,000 to $10,000 I propose that it be $15,000. I am not sure why we in this state do not automatically update those sorts of penalties, but clearly a penalty that was $15,000 in 1993 is not comparable to $20,000 in 2009, and nor is a fine of $8,000 comparable with $10,000, which is why I have sought to increase them. This will be a test clause to determine whether the committee is happy with it.

The Hon. G.E. GAGO: The government does not support the amendment. The fines contained in the bill are primarily to provide a disincentive to people, both professionals, such as psychiatrists, and members of the community, doing the wrong thing. Nobody has ever been prosecuted under the provisions of the current Mental Health Act and it is not the intention that people should be criminalised under this bill.

The fines are significant as they stand: $20,000 is generally seen as a large amount of money to most people. The best way to obtain compliance with the provisions of the bill is to train and educate professionals about how the new act should be administered and to educate the community about its provisions. Fining people will not achieve this; therefore, the government does not support the amendment or the subsequent amendments concerning fines.

The Hon. M. PARNELL: The Greens will not support the fine increases proposed in the honourable member's amendments or the subsequent increases. We accept the reasons given by the minister and particularly the fact that this is not an area that is rife with prosecutions. These amounts are very much set there as a deterrent to improper behaviour, and they have succeeded to date at the levels they are at and do not need to be increased.

The Hon. D.G.E. HOOD: Family First supports the amendment. The Hon. Ms Lensink put it well: the original amounts were set some time ago and it is simply a matter of updating them.

The committee divided on the amendment:

AYES (10)
Brokenshire, R.L. Darley, J.A. Hood, D.G.E.
Lensink, J.M.A. (teller) Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Winderlich, D.N.
NOES (7)
Bressington, A. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hunter, I.K. Parnell, M.
Wortley, R.P.
PAIRS (4)
Dawkins, J.S.L. Zollo, C.
Lawson, R.D. Finnigan, B.V.

Majority of 3 for the ayes.

Amendment thus carried; clause as amended passed.

Clause 43.

The Hon. J.M.A. LENSINK: I move:

Page 30, line 7 [clause 43(3), penalty provision]—Delete '$20,000' and substitute '$50,000'

Amendment carried; clause as amended passed.

Clause 44.

The Hon. J.M.A. LENSINK: I move:

Page 30, line 16 [clause 44(3)]—Delete '$20,000' and substitute:

$50,000

This amendment is consequential.

Amendment carried; clause as amended passed.

New heading.

The Hon. J.M.A. LENSINK: I move:

Page 30, after line 19—Before clause 45 insert: Division 1—Patients' rights and protections

To advise the committee, this is a drafting issue. It means that the section has had to be renamed. It relates to part 4. Clause 45 provides for the assistance of interpreters and so forth. The entire part is entitled 'Further protections for persons with mental illness'. This is where some aspects of the community visitor scheme have been inserted, so it is a drafting issue and it is consequential on one's support for a community visitor scheme.

Amendment carried; new heading passed.

Clauses 45 and 46 passed.

Clause 47.

The Hon. J.M.A. LENSINK: I move:

Page 32, lines 6 and 7 [clause 47(2)(d)]—Delete paragraph (d) and substitute:

(d) a community visitor;

Again, this is a drafting matter relating to a community visitor scheme in that the existing legislation, which is clause 47(2)(d), provides that patients who may be supported include in that list a person made available under a community visitor scheme established under the regulations. Because the community visitor scheme will be established within the substantive act, that clause would be deleted and replaced by 'a community visitor'.

Amendment carried; clause as amended passed.

Clause 48.

The Hon. J.M.A. LENSINK: I move:

Page 32, after line 38 [clause 48(3)]—After paragraph (e) insert:

(ea) a community visitor;

Again, this is consequential—very similar to that which we have just dealt with.

Amendment carried; clause as amended passed.

Clause 49.

The Hon. J.M.A. LENSINK: I move:

Page 33, line 7 [clause 49, penalty provision]—Delete '$10,000' and substitute:

$25,000

Amendment carried; clause as amended passed.

New clauses 49A to 49E.

The Hon. J.M.A. LENSINK: I move:

Page 33, after line 7—

After clause 49 insert:

Division 2—Community visitor scheme

49A—Community visitors

(1) There will be a position of Principal Community Visitor.

(2) There will be such a number of positions of Community Visitor as the Governor considers necessary for the proper performance of the community visitors' functions under this Division.

(3) A person will be appointed to the position of Principal Community Visitor, or a position of Community Visitor, on conditions determined by the Governor and for a term, not exceeding 3 years, specified in the instrument of appointment and, at the expiration of a term of appointment, will be eligible for reappointment.

(4) However, a person must not hold a position under this section for more than 2 consecutive terms.

(5) The Governor may remove a person from the position of Principal Community Visitor, or a position of Community Visitor, on the presentation of an address from both Houses of Parliament seeking the person's removal.

(6) The Governor may suspend a person from the position of Principal Community Visitor, or a position of Community Visitor, on the ground of incompetence or misbehaviour and, in that event—

(a) a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension; and

(b) if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the person's removal has not been presented to the Governor, the person must be restored to the position.

(7) The position of Principal Community Visitor, or a position of Community Visitor, becomes vacant if the person appointed to the position—

(a) dies; or

(b) resigns by written notice given to the Minister; or

(c) completes a term of appointment and is not reappointed; or

(d) is removed from the position by the Governor under subsection (5); or

(e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or

(f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or

(g) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or

(h) becomes, in the opinion of the Governor, mentally or physically incapable of performing satisfactorily the functions of the position.

(8) The Minister may appoint a person to act in the position of Principal Community Visitor—

(a) during a vacancy in the position; or

(b) when the Principal Community Visitor is absent or unable to perform the functions of the position; or

(c) if the Principal Community Visitor is suspended from the position under subsection (6).

49B—Community visitors' functions

(1) Community visitors have the following functions:

(a) to conduct visits to and inspections of treatment centres as required or authorised under this Division;

(b) to refer matters of concern relating to the organisation or delivery of mental health services in South Australia or the care, treatment or control of patients to the Minister, the Chief Psychiatrist or any other appropriate person or body;

(c) to act as advocates for patients to promote the proper resolution of issues relating to the care, treatment or control of patients, including issues raised by a guardian, medical agent, relative, carer or friend of a patient or any person who is providing support to a patient under this Act;

(d) any other functions assigned to community visitors by this Act or any other Act.

(2) The Principal Community Visitor has the following additional functions:

(a) to oversee and coordinate the performance of the community visitors' functions;

(b) to advise and assist other community visitors in the performance of their functions, including the reference of matters of concern to the Minister, the Chief Psychiatrist or any other appropriate person or body;

(c) to report to the Minister, as directed by the Minister, about the performance of the community visitors' functions;

(d) any other functions assigned to the Principal Community Visitor by this Act or any other Act.

49C—Visits to and inspection of treatment centres

(1) Each treatment centre must be visited and inspected once a month by 2 or more community visitors.

(2) 2 or more community visitors may visit a treatment centre at any time.

(3) For the purposes of any visit to a treatment centre, at least 1 of the community visitors is to be a medical practitioner or registered psychologist or a former medical practitioner or registered psychologist.

(4) On a visit to a treatment centre under subsection (1), the community visitors must—

(a) so far as practicable, inspect all parts of the centre used for or relevant to the care, treatment or control of patients; and

(b) so far as practicable, make any necessary inquiries about the care, treatment and control of each patient detained or being treated in the centre; and

(c) take any other action required under the regulations.

(5) After any visit to a treatment centre, the community visitors must (unless 1 of them is the Principal Community Visitor) report to the Principal Community Visitor about the visit in accordance with the requirements of the Principal Community Visitor.

(6) A visit may be made with or without previous notice and at any time of the day or night, and be of such length, as the community visitors think appropriate.

(7) A visit may be made at the request of a patient or a guardian, medical agent, relative, carer or friend of a patient or any person who is providing support to a patient under this Act.

(8) A community visitor will, for the purposes of this Division—

(a) have the authority to conduct inspections of the premises and operations of any hospital that is an incorporated hospital under the Health Care Act 2008; and

(b) be taken to be an inspector under Part 10 of the Health Care Act 2008.

49D—Requests to see community visitors

(1) A patient or a guardian, medical agent, relative, carer or friend of a patient or any person who is providing support to a patient under this Act may make a request to see a community visitor.

(2) If such a request is made to the director of a treatment centre in which the patient is being detained or treated, the director must advise a community visitor of the request within 2 days after receipt of the request.

49E—Reports by Principal Community Visitor

(1) The Principal Community Visitor must, on or before 30 September in every year, forward a report to the Minister on the work of the community visitors during the financial year ending on the preceding 30 June.

(2) The Minister must, within 6 sitting days after receiving a report under subsection (1), have copies of the report laid before both Houses of Parliament.

(3) The Principal Community Visitor may, at any time, prepare a special report to the Minister on any matter arising out of the performance of the community visitors' functions.

(4) Subject to subsection (5), the Minister must, within 2 weeks after receiving a special report, have copies of the report laid before both Houses of Parliament.

(5) If the Minister cannot comply with subsection (4) because Parliament is not sitting, the Minister must deliver copies of the report to the President and the Speaker and the President and the Speaker must then—

(a) immediately cause the report to be published; and

(b) lay the report before their respective Houses at the earliest opportunity.

(6) A report will, when published under subsection (5)(a), be taken for the purposes of any other Act or law to be a report of the Parliament published under the authority of the Legislative Council and the House of Assembly.

This is consequential. These proposed new clauses outline in somewhat more detail how the community visitor scheme would operate. They have been filed for some time and I think I have forwarded them to honourable members. I am more than happy to answer any questions that members may have. I commend them to the committee.

New clauses inserted.

Clauses 50 to 54 passed.

Clause 55.

The Hon. J.M.A. LENSINK: I move:

Page 37, line 11 [clause 55, penalty provision]—Delete '$10,000' and substitute '$25 000'.

Amendment carried; clause as amended passed.

Clauses 56 to 73 passed.

Clause 74.

The Hon. J.M.A. LENSINK: I move:

Page 45, after line 33—After subclause (3) insert:

(4) If a review under this section relates to a patient to whom a treatment and care plan applies, the Chief Executive must cause a copy of the plan to be submitted to the board at or before the commencement of the board's proceedings on the review.

This is a separate issue to the one we dealt with before, and I note that the government has identical amendments on file. This is a recommendation which comes from the Law Society, and I think that at some point it may have been overlooked in the transcription from the Bidmeade report to the draft of the act, in that these clauses require that all reviews with the Guardianship Board require the presentation, by the director, of the patient's treatment and care plan.

For those who are not familiar with the operation of the Guardianship Board, when it reviews whether or not someone should continue to be on an order I believe it makes good sense that it has access to the treatment and care plan, which is a new initiative of this act. If one exists then it makes common sense to provide it.

The Hon. G.E. GAGO: I move:

Page 45, after line 33—After subclause (3) insert:

(4) If a review under this section relates to a patient to whom a treatment and care plan applies, the Chief Psychiatrist must cause a copy of the plan to be submitted to the board at or before the commencement of the board's proceedings on the review.

The government supports the intent of the opposition's amendment. The bill creates an administrative system based on the chief psychiatrist rather than the chief executive. For this reason, 'chief executive' has been changed to 'chief psychiatrist'. The remainder of the amendment reflects that filed by the opposition.

The Hon. J.M.A. LENSINK: I apologise; I erred in my comment that this was identical. I slipped over the fact that the chief executive and chief psychiatrist are actually quite different persons. I seek leave to withdraw my amendment, and indicate that I will be supporting the government's amendment in this regard.

Leave granted; amendment withdrawn.

The Hon. G.E. Gago's amendment carried; clause as amended passed.

Clause 75 passed.

Clause 76.

The Hon. G.E. GAGO: I move:

Page 46, after line 20—After subclause (2) insert:

(2a) If an appeal under this section relates to a patient to whom a treatment and care plan applies, the Chief Psychiatrist must cause a copy of the plan to be submitted to the board at or before the commencement of the board's proceedings on the appeal.

Amendment carried; clause as amended passed.

Clauses 77 to 86 passed.

New clause 86A.

The Hon. DAVID WINDERLICH: I move:

Page 50, after line 15—After clause 86 insert:

86A—Annual report by Chief Psychiatrist

(1) The Chief Psychiatrist must, before 30 September in each year, present a report to the Minister containing—

(a) in respect of each level of community treatment order and detention and treatment order—

(i) information about the number and duration of the orders made or in force during the preceding financial year; and

(ii) demographic information about the patients, including information about areas of residence, places of treatment and, in the case of detention and treatment orders, places of detention; and

(b) in respect of administration of part 10 ( Arrangements between South Australia and other jurisdictions)—

(i) a statement of the number of occasions during the preceding financial year on which powers have been exercised under each of the following provisions:

(A) section 61(1) (South Australian community treatment orders and treatment in other jurisdictions);

(B) section 64 (Making of South Australian community treatment orders when interstate orders apply);

(C) section 65(1) (Transfer from South Australian treatment centres);

(D) section 66 (Transfer to South Australian treatment centres);

(E) section 69(1) (Transport to other jurisdictions when South Australian detention and treatment orders apply);

(F) section 70(2) (Transport to other jurisdictions of persons with apparent mental illness);

(G) section 71(12) or (4) (Transport to other jurisdictions when interstate detention and treatment orders apply);

(H) section 72(1) or (3) (Transport to South Australia when South Australian detention and treatment orders apply);

(I) section 73 (Transport to South Australia of persons with apparent mental illness); and

(ii) information about the circumstances in which the powers were exercised.

(2) The Minister must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament.

This provides for an annual report from the Chief Psychiatrist. The amendment effectively requires that the Chief Psychiatrist provide, before 30 September in each year, a report to the minister that outlines information about the community treatment orders and detention orders, in particular the number and duration of the orders, and demographic information about the patients including information about areas of residence, places of treatment and, in the cases of detention and treatment orders, places of detention; and then, in relation to arrangements between South Australia and other jurisdictions, the number of occasions during the preceding financial year on which powers have been exercised under a range of clauses that relate to transport to and from other jurisdictions.

This report must be laid before parliament within 12 days of its receipt by the minister. There are two reasons for this. One is again an issue about ensuring scrutiny over the exercise of greater power and protecting the rights of vulnerable people—the mentally ill—in doing this. As many of us have articulated, we are talking about significant infringements on people's rights and liberties, forcible detention and forcible treatment. It seems to me axiomatic that, whenever we do that, the exercise of such powers should be open to some sort of scrutiny.

This would simply ensure that we were made aware of how these powers are being exercised. This is not just a theoretical issue. We do have a case cited by Jennifer Corkhill, who is a solicitor who acts for mentally ill people and who is also a member of the Human Rights Committee of the Law Society. In an article in the Law Society Journal in December 2007, she states:

I represented a man from Perth who was about to be transferred from South Australia back to Perth against his will. He had been travelling through South Australia on his way to New South Wales where he planned to live when he became mentally unwell. He had no family connections in WA and wanted to return to his childhood home in New South Wales. His wishes about where he lived and his lack of connection with Western Australia, which he had repeatedly expressed and which were clearly recorded in his clinical case notes, were totally disregarded by those who were making decisions about his transfer.

Although he had been on an order when he left Western Australia, he was not on any orders in Western Australia at the time of the proposed transfer and had been held in an acute psychiatric ward in South Australia for many months pending transfer arrangements, although he was well enough to move to community care and should not have remained detained. The transfer was due to take place the next morning by a Qantas commercial flight.

The clinical case notes show that the arrangements had been made to medically sedate the man in advance of the transfer. Surely, without legal basis for the transfer, the medication would have been an assault, not to mention a breach of medical ethics. No-one making decisions about this man in South Australia seemed concerned about my representations regarding the fact that there were no orders in place in Western Australia permitting his detention when he arrived on the tarmac in Perth and he was no longer subject to the South Australian detention order.

He would have been sedated, so on examination on the plane an immediate detention would not have been possible, let alone desirable. His planned restraint and transfer to a Perth hospital would surely have been unlawful and thus amount to false imprisonment and probably assault. Fortunately, following urgent representations to the minister's office, the transfer did not take place, and he was quickly released into community accommodation in South Australia. It was only by chance that I came to hear of this man's predicament, and I was made aware at the time that the case was not an isolated one.

I think the point there is very explicitly about transfer between jurisdictions, but it also raises a number of other problems about the operation of a mental health system and how it can disregard the wishes of a person and make decisions that do not seem to be in the interests of that person. In a way, I think it adds weight to the sort of scrutiny that is envisaged under each element of this amendment.

The Public Advocate, John Brayley, has also spoken about the interstate transport provisions. I am quoting selectively here in order not to take up too much time. Mr Brayley states:

Under the new legislation transfers are approved only at local director level. Informal inquiries elsewhere suggest that there may be some debate about the merits of transfer in up to a fifth of cases proposed by treating staff. Certainly, such major decisions should be the subject of a high level review on all occasions and appeal be available. There is an absolute finality to transfer. Once it is done it is done. There is also potential for misuse in the forensic setting where it could be a convenient alternative to extradition. These existing transfer provisions could be enhanced if there is a requirement that transfers be approved by the chief psychiatrist at the recommendation of the local director; that the transfer must, in the opinion of the chief psychiatrist, benefit the patient; and that there is access to immediate appeal to the Guardianship Board prior to leaving the state.

In addition, there is a new provision for the transport of people with apparent mental illness who live in border regions straight to an interstate facility. For example, a person who lives in the APY lands might be admitted to Alice Springs rather than Adelaide, which can be a desirable outcome for many consumers and their families. However, this provision should be limited to specific areas in border regions as its intent or otherwise may be misused for other purposes. There would be an extra protection if there is a requirement that the interstate centre be geographically closer to where the person usually resides than the South Australian centre they might otherwise be admitted to. An alternative would be to declare by regulation certain parts of South Australia as recognised catchment areas for interstate centres so these provisions can be in these areas only.

The key point in all that is that the Public Advocate recognises the potential for abuse and misuse of these sorts of provisions. He did suggest some specific ways of dealing with that. I am not proposing any amendments to that effect. All I am proposing is that the exercise of these powers be subject to some sort of scrutiny and accountability by being the subject of an annual report by the chief psychiatrist which the minister then presents to parliament.

It is simply a case of being able to monitor the operation of the system rather than significantly changing any of the provisions of this bill. That is the first reason; it is to do with rights and liberties. The second—

The Hon. G.E. Gago interjecting:

The Hon. DAVID WINDERLICH: The minister is supporting it? I did not know that. In that case, I think I will probably conclude my remarks.

The Hon. G.E. GAGO: For the record, the government will be supporting this amendment. We believe it improves the transparency in relation to the administration of the act and ensures public accountability.

New clause inserted.

Clauses 87 to 94 passed.

New Clause 94A.

The Hon. DAVID WINDERLICH: I move:

Page 52, after line 14—Before clause 95 insert:

94A—Representation in proceedings before board.

(1) In proceedings before the board under this act, the person to whom the proceedings relate is entitled to be represented by counsel in accordance with this section.

(2) If a person chooses to be represented by counsel, he or she is entitled to be represented by a legal practitioner provided under a scheme established by the minister for the purposes of this section, being a legal practitioner—

(a) chosen by the person himself or herself; or

(b) in default of the person making a choice, chosen by a person or authority contemplated by the scheme.

(3) A legal practitioner (not being an employee of the Crown or a statutory authority) who represents a person under this section is entitled to receive fees for his or her services from the minister, in accordance with a scale prescribed by the regulations, and cannot demand or receive from any other person any further fee for those services.

(4) Nothing in this section derogates from the right of the person to whom the proceedings relate to engage counsel at his or her own expense, or to appear personally or by the Public Advocate or other representative in accordance with the Guardianship and Administration Act 1993.

If the minister is not supporting this amendment, I will speak to it. This amendment relates to representation in proceedings before the Guardianship Board. People currently have a right under the Guardianship Act to have representation on application to the Guardianship Board, but this relates only to appeals and not initial hearings before the Guardianship Board, and it does not make any provision for legal representation—I am looking up every now and then in case the minister supports it—to be paid for by the government.

I am informed that it is at the initial hearings that the main problem occurs. This is a situation where the person is all alone and the doctors, the medical staff and often the family may be against them. They may well be sick and trying to make out their case. The doctors will have the volumes of case notes which contain the case against the person; and, if that person is not legally represented it is highly unlikely they will have seen what is in there or heard it until the hearing, when it is too late for them to get any evidence themselves to rebut the assertions made in the notes. I think that is the argument from a legal practitioner in the system.

We often pose this dichotomy of the dangers of bringing legal arguments into a medical setting. I think the point has been made (but it is worth making again) that we are not talking about a lawyer arguing the toss about whether someone has a broken leg or something as clear-cut as that. We are talking about mental illnesses, and there is still considerable debate as to how scientifically based they are. The process for designating something a mental illness is that it goes into the Diagnostic and Statistical Manual of Mental Disorders, and that is done by a majority vote of American Psychiatric Association members.

One psychologist, Renee Garfinkle, has described this as being on the same scientific level as one would choose a restaurant, which is probably a little derogatory. Nonetheless, the point is that we are talking about significant decisions with respect to people's lives in complex settings in relation to illnesses that are themselves contested.

To give some very brief examples, I think internet addiction is being proposed for inclusion in the new DSM manual. There are things such as caffeine addiction, and 'religious or spiritual problem' is currently in that manual. There are mental illnesses in there that I think everyone would absolutely agree should be there, and there are mental illnesses in there that benefit from drugs and from a medical approach. However, we are talking about the most complex, least clear area of medicine and we are talking about making fundamental decisions with respect to people's lives in this setting.

It seems to me that in that setting people should have some sort of representation so they can argue their case. They would be entitled to that if they were being charged with a criminal offence. They are not entitled to that because they may have, or it is thought they may have, a mental illness. It seems to me to be a basic principle of equity and justice for them to have some sort of representation.

The other element of this is that at the moment we have a highly inequitable system where those with the resources can obtain legal representation at points in the system and those without cannot. So, we have an extremely unequal system that will work against the poor and the less educated and people who are less able to state their case or hire someone to state their case and, to me, that also seems to be fundamentally flawed. I commend the amendment. It would simply ensure that people in hearings before the Guardianship Board had help in making their case.

The Hon. G.E. GAGO: The government does not support this amendment. There would appear to be a misunderstanding about the role of the Guardianship Board. It is not a court with an adversarial process but a tribunal-like body that hears from both sides in an inquisitional manner. The role of the board is to safeguard the rights of protected and vulnerable people. Part 8 of the Mental Health Bill makes explicit that a patient has the right to be supported by a guardian, medical agent, relative, carer, friend or advocate.

The matter of the 93 year old man referred to by the Hon. David Winderlich was, in fact, a Guardianship and Administration Act matter, not a Mental Health Act matter. The grand-niece referred to also made a confidential submission to the Bidmeade review in relation to the Guardianship and Administration Act.

New clause negatived.

Clause 95 passed.

Clause 96.

The Hon. J.M.A. LENSINK: I move:

Page 52—

Line 29 [clause 96(1), penalty provision]—Delete '$10,000' and substitute:

$25,000

Line 39 [clause 96(3), penalty provision]—Delete '$10,000' and substitute:

$25,000

Page 53—

Line 8 [clause 96(4), penalty provision]—Delete '$10,000' and substitute:

$25,000

Line 13 [clause 96(5), penalty provision]—Delete '$10,000' and substitute:

$25,000

Amendments carried; clause as amended passed.

Clause 97 passed.

Clause 98.

The Hon. J.M.A. LENSINK: I move.

Page 53, line 24 [clause 98, penalty provision]—Delete '$10,000' and substitute:

$25,000

Amendment carried; clause as amended passed.

New clause 98A.

The Hon. J.M.A. LENSINK: I move:

Page 53, after line 24—

After clause 98 insert—

98A—Harbouring or assisting patient at large

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

Maximum penalty: $25,000 or imprisonment for 2 years.

(2) In this section—

interstate patient at large has the same meaning as in Part 10;

patient at large has the meaning assigned by section 3, and includes an interstate patient at large.

This clause creates a new offence. There are a number of offences, as we would all imagine, in relation to those who have access to confidential information and who would use that improperly or to provide that certain treatments should not be used inappropriately and so forth; I think all of those things are to be expected.

Within the current Mental Health Act, which has been adopted in the new bill, there are other clauses which relate to matters like removing patients from treatment centres, and this clause arises out of a coronial inquiry. It is ironic that the government's response to that inquiry was tabled today in parliament. I will not go through it great detail, as I think I addressed this during the second reading debate, but it related to a man by the name of Damien Paul Dittmar, who died on 16 May 2006.

The history of this matter is that he clearly had suicidal ideation and had been detained at the Queen Elizabeth Hospital. He absconded, went to a friend's place and stayed there overnight; the friend then dropped him at his grandmother's place, and the following morning he committed suicide.

The Coroner had some fairly strong words to say about this case and the gaps it has shown within our system. He looked at whether under the criminal law there could be any possible prosecution for someone who had assisted a person who had absconded and, based on the information the parliament has been provided today, that is clearly not the case. I will quote from this paper, which was received today:

Coroners Inquest recommendations into the death of Damien Paul Dittmar

On 24 April the State Coroner in an inquest into the death of Mr Dittmar made four findings. Only two of these findings require a police response.

Further in it states:

If it was found that the Crown Solicitor's Office determined that application of Section 254 of the Criminal Law Consolidation Act could not be applied, the coroner recommended that the Hon Attorney-General and the Hon Minister for Health consider legislative change to provide such a provision within the Mental Health Act.

Crown Solicitor's Office advice was provided and confirms that Section 254 of the Criminal Law Consolidation Act cannot be applied. Further advice was received that no similar provisions as allowed in Section 254 of the Criminal Law Consolidation Act were available in the current Mental Health Act.

I assume that this means that the government will be looking at this. In the meantime, I have had this clause drafted which creates a penalty so that someone who knowingly or being recklessly indifferent harbours or assists a patient at large would be guilty of an offence. I echo the words of the Coroner, who stated that one may do this for compassionate grounds, and if that were the case it would be taken into consideration if the matter were brought before a court. It is important that people who are in treatment do need that treatment, and clearly in this case it resulted in tragedy. I commend this amendment to the committee.

The Hon. G.E. GAGO: The government does not support the amendment for the following reasons. The bill and the current act both contain offences for removing a person from a treatment centre or aiding their removal without lawful excuse. Clause 55 provides for an offence of hindering an authorised officer, that is, a person who may be trying to return a patient at large to a treatment centre. A mental health patient should not be likened to prisoners who escape. SAPOL actively searches for patients who unlawfully leave a treatment centre and they are not just classified as missing persons.

A person who knows or is recklessly indifferent to whether another is a patient at large and harbours the patient may not appreciate the full significance of their actions. Many members of the community may equate being placed on a detention and treatment order with being imprisoned for committing an offence and, while this is clearly a misguided perception, educating people about why orders are sometimes necessary is preferred to criminalising members of the public who may believe they are doing the right thing in harbouring a patient.

Harbouring is a term that most people associate with criminal activity. The draft of the bill circulated publicly for comment had the language revised as the views were strongly put that the language was inappropriate in a non-criminal context. People with mental illness can have all sorts of trains of thinking, thoughts, delusions and paranoia. A mental illness does not necessarily impact or affect the intelligence of a person. A person who is mentally ill can spin a very good yarn about the predicament and circumstances they are in and can be very believable and convincing.

This amendment potentially impacts on the families, friends and partners of those with a mental illness, who are obviously easily influenced by what the patient might say and the particular perspective they might put, and they may not be able to appreciate the full significance of their actions. People with a mental illness can be very convincing and compelling in the way they present themselves, so I urge members to think strongly about this matter.

This amendment potentially whacks those people who are already suffering considerably with a loved one in this situation, and it is usually to the doorstep of a loved one, a family member or a good friend that they go looking for protection and assistance. This amendment whacks those people who do not deserve it.

The Hon. M. PARNELL: In my second reading contribution I said that I did not think it was appropriate to attach criminal liability to those who seek to help people with mental illnesses, even if such help is misguided or counterproductive, and my view has not changed. The minister referred to the fact that it will be friends and family that they turn to. It is not difficult to imagine a scenario where a family member might wish to encourage the person to return to their treatment: stay the night, but tomorrow talk about going back. Maybe it will be a case of staying two nights or the weekend.

The way the amendment is worded, it relates to 'any person who assists the patient to remain at large', so the offence is committed, one would think, the instant the person does not immediately dob them in.

I know the mover has said that, of course, courts would look at it, and they would take a compassionate view and would not be seeking to make criminals out of people who are not criminals. Nevertheless, I think it would probably be best to keep this provision out of the legislation.

I want to make one brief observation about coronial inquiries. Coroners, when they come across hard cases, feel the need to make recommendations; it is a natural response. They do not always, but they feel the need to make them. It is a common saying in law that hard cases make bad law. Sometimes bad things just happen and, with no disrespect to the Coroner for having recommended this as an approach, I think that, whilst it might have proved beneficial in the case that the Coroner was looking at, a great deal of harm could be caused elsewhere in the community if this became part of our general law. For those reasons, I do not support this amendment.

The Hon. DAVID WINDERLICH: I strongly oppose this amendment. We always have to be very cautious when we move down a coercive path, because we start to find coercive solutions, which is not to say that there is never a place for them, and then, as further problems emerge, we look for more coercive solutions.

I think what this sort of amendment could do is open up the mental health field to the same knee jerk, tough on crime approach. I know that is not at all the intention of the mover, but I think that is what it could do, because some crisis would occur in mental health, there would be some act of violence or a death and, all of a sudden, this area is opened up to the same knee jerk, tough on crime approach, and I think this would be the worst area in which you could do it.

The question of who it penalises has been touched on, but it is worth enlarging on. We are talking about friends and family, and we are probably also talking about people whose support base may well be other mentally ill people, because they may have been abandoned by most other people. So, they may band together with and find support from other mentally ill people.

So, now you are talking about a group of people whose whole experience of life, in very many cases, is that they do not trust the system—they are screwed by the system and they are screwed by the authorities—so, why would they not take the word of one of their peers who comes to them with a story which may, in fact, be true, but it may not, about the sorts of drugs and the effects and the sort of treatment they are getting and so forth?

These are people who are not just engaged with the mental health system and experiencing the worst of that; they are probably experiencing the worst of the welfare system and every other bureaucracy which we have which manages the life of people who bump along on the bottom of society without money or resources or friends. So, those are the sorts of people you are also very likely to penalise.

I guess the other important matter to think through is not just that issue of fairness, fundamental though it is, but the question of what it will mean for the operation of the system. Earlier, I read some extracts from the Public Advocate, John Brayley, where he talked about the need to focus on engagement in a positive way and the need to minimise the coercive aspects, because you could have counterproductive effects if you get the balance wrong. So, if we now move towards this approach and penalise that pool of people whom in many ways we need to engage to treat and support, that could be counterproductive down the track.

I draw the following comparison, and it is possibly not the best comparison, but it is the best one I can think of, and I guess it relates to the arguments around harm minimisation and how we treated the AIDS epidemic in Australia, which was very successful in international terms, and the case of needle exchanges. People were breaking the law with their drug use. We could have been locking them up all the time but, instead, it was realised that it was vitally important to engage those people to stop the spread of the epidemic, so things like needle exchanges were established. That same principle of engagement, even where people might be breaking the law, probably applies in this area of mental health.

I think this amendment is fundamentally unfair and harsh to a group of people who could least withstand that kind of harshness and who least deserve it and, in all likelihood, it is probably counterproductive to the functioning of a really effective mental health system.

The Hon. D.G.E. HOOD: Family First does not accept the argument that this is an unfair amendment. In fact, given that this amendment, as I understand it from the explanation given by the Hon. Ms Lensink, originated from the recommendations of the Coroner himself, it seems that neither does the Coroner. The context here is that people who have been subject to one of these orders, which can be quite draconian, have been for one of two reasons; that is, they are perceived to be of potential harm to themselves or others in the community. By its very definition, those who seek to harbour these people—that is, to use the term used in the amendment—therefore, are placing this individual or the community at risk, and that is something that we certainly will not be part of. For that reason, we will be supporting the amendment.

The committee divided on the new clause:

AYES (9)
Brokenshire, R.L. Darley, J.A. Hood, D.G.E.
Lensink, J.M.A. (teller) Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
NOES (8)
Bressington, A. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hunter, I.K. Parnell, M.
Winderlich, D.N. Wortley, R.P.
PAIRS (4)
Lawson, R.D. Finnigan, B.V.
Dawkins, J.S.L. Zollo, C.

Majority of 1 for the ayes.

New clause thus inserted.

Clause 99.

The Hon. J.M.A. LENSINK: I move:

Page 53, line 30 [clause 99(1), penalty provision]—Delete '$10,000' and substitute:

$25,000

Amendment carried.

The Hon. DAVID WINDERLICH: I move:

Page 54, after line 26—After subclause (4) insert:

(4a) Subsection (2)(c) does not authorise the disclosure of information about the treatment that a person has received or is to receive except to a carer of the person.

Essentially, this amendment inserts a new clause that limits the disclosure of information about treatment a person has received, or is to receive, to a carer of that person. The point of this is that, the way the bill is currently written, if you are under a treatment order it looks as though disclosure about pretty much anything can be made to virtually everyone. The qualifying subclause (2)(c) prevents disclosure contrary to the expressed wishes of the person, but subclause (4) provides that subclause (2)(c) does not apply if people are on orders.

This is a difficult one, and I have to say that the Carers Association opposes this because the line between when someone is a carer and when someone is another family member blurs and changes. I do understand that point; however, it seems to me that there still needs to be some minimal protection of the right of a mentally ill person to privacy and confidentiality. They should be able to have some sort of say in what information about them is shared. There is also the issue of the occasional abuse of that information by family members, and the case of the 93 year old that both I and the minister referred to earlier is one such case.

I have some misgivings about why a person who is not an identified carer needs to know, or has a right to know, details about treatment of a person who is mentally ill. I can fully understand why they would want to know information such as where a person is and whether they are well so that they just do not disappear from the face of the earth and the family member or friend has no way of finding out if they are okay. However, specific information about treatment details seems to be something that should be more restricted. One way to do that, and also keep the focus on the rights of the mentally ill person and the rights of the carers, is to restrict that information to a carer of the person.

The Hon. G.E. GAGO: The government opposes this amendment. Although I am sympathetic to the general intention behind the honourable member's amendment, I think the unintended effects of this outweigh those sympathies. As the honourable member pointed out, the Carers Association does not support this amendment. Its view is that it will unnecessarily complicate the administration of the act.

The amendment is also likely to unreasonably impact on Aboriginal people and may disadvantage them because of their complex kinship relationships, which often include obligations to care for a range of relatives. The proposed advanced directives act will allow a person, when well, to nominate a specific person to assume different responsibilities; restricting release of that information to carers may only impact on a patient's care and treatment if the carer is hospitalised or goes on holidays. It would create pressure to formally identify and register carers, thus creating what could be a very inflexible and administratively burdensome system.

The nature of mental illness is that it tends to be episodic. There may be a sudden onset, and a person who becomes sick may suddenly be left unsupported or care treatment affected, especially if he or she has changed their primary carer—for example, if he or she has a new partner. So, as I said, I do have sympathy for the intention of the amendment, but I believe that the adverse impact outweighs those sympathies.

Clause 99(2)(c), under 'Confidentiality and disclosure of information', provides that disclosure of information can only occur 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. We believe that protections are afforded there in terms of the nature and type of information that can be released.

The Hon. J.M.A. LENSINK: That is an important point that the minister outlined. Again, this is an area on which we were lobbied by the Law Society Human Rights Committee. I do understand the concern that, in layman's terms, we would not want any old busybody, who purports to be a friend of the person detained, to go snooping around to try to find out what sort of treatment the person is receiving.

I also point out that the term 'carer' refers back to the Carers Recognition Act, which is quite narrowly defined. It provides that a carer is someone who provides ongoing care or assistance. It specifically excludes people who may be providing care under a contract, which is either paid or voluntary. It also contains this provision:

A person is not a carer for the purposes of this Act only because the person—

(a) is a spouse, domestic partner, parent or guardian of the person to whom the care or assistance is being provided;

This is a really vexed issue, particularly in relation to parents. I know a few parents who have been in that invidious position, and they say that when their adult child (for whom they do not fulfil the criteria of being a formal carer) is at home they pick up the pieces when they are discharged from hospital, but they are not provided with any information and the hospital puts up the shutters; whether or not that is because of their interpretation of the act, for whatever reason they cannot have any information once that person is admitted to hospital, particularly if it is someone who has schizophrenia or an illness with delusions.

It can be very difficult for those families to manage their affairs. I do understand where the honourable member is coming from, but I think it would narrow it unnecessarily. I also understand that it would be in conflict with the provisions of the Health Care Act, which would then create legal ambiguity. It is often people working within the hospital system who interpret these things. I think we need to make it as transparent as possible so that they can understand the legal position and are in the best position to apply it appropriately.

Amendment negatived; clause as amended passed.

Clause 100.

The Hon. J.M.A. LENSINK: I move:

Page 54—

Line 34 [clause 100(1), penalty provision]—Delete '$10,000' and substitute '$25,000'

Line 41 [clause 100(3), penalty provision]—Delete paragraph (a)

Amendments carried; clause as amended passed.

Clauses 101 and 102 passed.

Clause 103.

The Hon. J.M.A. LENSINK: I move:

Page 55, lines 40 to 42 [clause 103(2) (a)]—Delete paragraph (a)

Amendment carried; clause as amended passed.

New clause 104.

The Hon. J.M.A. LENSINK: I move:

Page 56, after line 15—after clause 103 insert:

104—Review of Act

The Minister must, within four years after the commencement of this Act or any provision of this Act—

(a) cause a report to be prepared on the operation of this act; and

(b) cause a copy of the report to be laid before each house of parliament.

This amendment inserts a review date. It is a considerable time since this act was reviewed. It is an effective modernisation of the act which will serve us well going forward, but there are many aspects about which members have expressed concern. Therefore, it would be appropriate to review the act in four years, with the benefit of statistical information to which the chief psychiatrist will have access as also, indeed, will the parliament—thanks to the Hon. David Winderlich's amendments.

The Hon. G.E. GAGO: The government supports this amendment. A review of the act after four years will enable any areas that can be improved to be identified and amended as necessary.

New clause inserted.

Schedules and title passed.

Bill reported with amendments.

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