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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-02 Daily Xml
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MENTAL HEALTH BILL

Final Stages

The House of Assembly agreed to amendments Nos 1 to 13, 15 to 23 and 25 to 29 made by the Legislative Council without any amendment; disagreed to amendment No. 24; and agreed to amendment No. 14 with the amendment as indicated in the following schedule:

New Clause 49C–Delete subclause (3)

Consideration in committee:

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

That the council agrees to the amendment made by the House of Assembly to the council's amendment No. 14.

The vast majority of the provisions of the Mental Health Bill 2008 have received support from both houses of this parliament. It is a very important bill which provides a contemporary framework for the provision of mental health services. The bill will enable a different model of service delivery to be implemented and therefore is central to the reforms currently under way in the mental health system. If people in rural and regional South Australia are able to be admitted and treated in limited treatment centres out in the regions, then obviously it is important that this bill is passed. If medical practitioners and authorised health professionals are to be able to consider community treatment orders as a first option in treatment, then this bill must be passed, and if South Australia is to have a chief psychiatrist with the necessary powers to ensure that the mental health system is both accountable and transparent in its functioning powers, then this bill must be passed.

Members of the council have made significant contributions to the bill through the debate and the amendments which the government has accepted. We are now in a position where there is only one amendment that is in contention, and this is the amendment concerning establishing an offence of harbouring. We are accepting the amendments around the community visitor scheme and I think other issues around penalties and such like. The government has accepted all those. There is only one now in contention, and that is harbouring. The impact of this particular clause is to make the family and friends of patients who leave a detention centre without permission liable to prosecution if they harbour the patient.

In the other place the deputy opposition leader argued that the Mullighan inquiry recommended that an offence of harbouring be established in the interests of more effectively protecting children. This matter is currently being considered by the government. However, Mullighan's recommendation is not directly transferable to this bill. His intention is to ensure that, if a child under the guardianship of the Minister for Families and Communities runs away and stays with someone who is not considered appropriate for a variety of reasons, that person may be prosecuted.

The situation with people who leave a treatment centre without permission is obviously different. Rather than protecting the patient, the harbouring offence would criminalise the people harbouring them, which is most likely to be friends and family members. The context is quite different from that dealt with by Mullighan who is trying to protect vulnerable young people from exploitation.

We believe that family and friends of patients do not need to be prosecuted for providing accommodation overnight for someone they know should be in a treatment centre because they are on an order. Most family and friends want the very best for their family member or friend. They may think that, if they provide assistance overnight or some period of time for instance, the next day they might be able to talk the person—once they have calmed down—into returning to the treatment centre.

They may not speak English as a first language and they may not understand the mental health laws in South Australia. While some people need to be placed on an order to receive treatment, the patient, in effect, may tell them that they have been allowed to leave from the treatment centre or discharged.

Although I am not suggesting that these scenarios would necessarily be captured by the amendments proposed by the opposition, nevertheless they do provide a general context. Families and friends, who are likely to provide accommodation or other support to patients in this situation, are likely to be doing it because they consider it to be the best thing to do under the circumstances.

If someone has left a treatment centre without permission it is important that they are returned as soon as possible. Educating the community about why this is important and why people sometimes need to be placed on orders is likely to be more effective in the long term than criminalising the family and friends of people with mental illness.

Stakeholders are not supportive of the provision. Bidmeade, who wrote the report 'Paving the Way' (on which the bill is based), is not supportive of this harbouring amendment. He said:

The last thing families dealing with this stress of mental illness need is the threat of prosecution for the very human behaviour of trying to protect a family member albeit inappropriately. The legislation needs to reflect an understanding of the traumas of mental illness and avoid being punitive.

Other groups, such as the Australian Nursing Federation, Carers SA and Health Consumers Alliance, have expressed similar views.

The bill already contains two offences which are relevant. First, clause 98 makes it an offence to remove or aid the removal of a person from a treatment centre. Secondly, clause 55 makes it an offence to hinder or obstruct a police officer or authorised officer in exercising their powers under the act. Therefore, if a police officer or an authorised officer were to go to a house with the aim of returning a patient to a treatment centre and family or friends of the patient hinder or obstruct them, this action may form the basis of an offence. It is already provided for.

The establishment of the offence of harbouring is not necessary or desirable. The government has accepted a number of amendments, and I ask members of the committee to reconsider and support the passage of the bill without the harbouring amendment.

The Hon. J.M.A. LENSINK: The Liberal Party believes that this subclause should be retained. I should add that we are very pleased that a number of other clauses we successfully moved in this place have not been fought by the government. The deputy leader in another place spoke about the issue of harbouring through the Mullighan inquiry. This harbouring aspect was brought to our attention through the State Coroner in relation to a particular incident; and I will refer to that in a moment.

In relation to the claim that this particular clause criminalises aspects of the bill, the bill and the existing act already contain such clauses and sections in relation to removing patients from treatment centres. Clause 96 of the bill is much the same as section 33 in the Mental Health Act, which provides:

A person who, without lawful excuse, removes a patient who is being detained in a treatment centre from that centre or aids such a patient to leave the centre…

It carries a maximum penalty of $10,000 or imprisonment for two years. This harbouring amendment addresses the issue once a person has absconded in that they may abscond by themselves and be at a particular place where someone knows they have absconded, yet they do not make any effort to return them to the treatment centre. I think it is merely an extension of the existing legislation.

I want to read something which I may have read during my second reading contribution or when moving an amendment to the bill. It relates to the death of Damien Paul Dittmar who absconded from the Queen Elizabeth Hospital. At paragraph 10.7 the Coroner states:

Whatever the legal position may be, it is my recommendation that the act of knowingly assisting an absconded detained patient to evade apprehension should be criminalised. The legislature might quite understandably be reluctant to criminalise the mere harbouring of a detained patient because the activity might be undertaken for purely compassionate motives and what are thought to be the best interests of the patient.

I think that is the position that the minister has outlined. It continues:

However, it is difficult to see why the criminal law should be coy about punishing a person who knowingly and deliberately sets out to assist a detained patient to avoid being apprehended and returned to his or her place of detention.

In that regard, I think we ought to be aware of the best interests of the patient. In this case, quite tragically, he then committed suicide. But there may well be many other cases where someone really is in desperate need of treatment and may be psychotic to the degree that they do not believe they need treatment, and there ought to be some penalty for someone who does not assist to return them to a treatment centre. The Coroner goes on to state:

Having regard to the underlying reasons that lead to a person being detained under the Mental Health Act, one would have thought that such activity ought to be heartily discouraged.

I think that is a sensible approach. We do not want to have people harbouring persons who really need to be in a treatment centre and stopping them receiving treatment. As I have stated before in this place, this is not something that would be applied lightly: I think the court would consider the circumstances of the situation. However, for someone who does not take someone back to a treatment centre, in spite of the fact that they may be in desperate need of treatment, I think there ought to be some penalty that should be applied. I do not accept that this is criminalising mental health at all, because we already have such provisions in relation to taking someone from a treatment centre in the first place.

The Hon. M. PARNELL: I do not believe that the Legislative Council should insist on this amendment. I opposed the amendment when we debated it originally and my view has not changed. The situations the minister described in her response were similar to the situations that I described when we debated this in committee last—that is, a fairly predictable and, I would say, typical scenario where a person leaves without permission and goes to a loved one (a family member or a friend) and that person, who may have the best interests of the person at heart, may form the view that they have run away and should not have, but they will let them calm down and put them up for the night and tomorrow they will talk about going back to hospital. Whilst we could take the view that we would trust our law enforcement authorities not to pursue cases such as that, the point is that, if this amendment does go through, it will be open to our law enforcement authorities to take that view.

The test is a fairly severe one. The person has either to know or be recklessly indifferent as to whether the person is a patient at large. The reckless indifference would come into it if, for example, you get a knock on the door and it is a son or a daughter who has left a mental health institution and you say to them, 'I am surprised to see you here. Did they let you out?' And the answer would probably be, 'Yes.' You may well know that that person's condition requires more treatment, and you would probably form the view that, 'They are telling me they were let out, but I bet they weren't.' I think it would not be difficult for any prosecutor to say that, with that level of knowledge, you would, in fact, have been recklessly indifferent.

It may be that they tell you the truth that they were not given permission to leave and they just left. Still, a compassionate response of a family member may be to say, 'Stay the night. Tomorrow we will talk about going back.' The difficulty, of course, is that this amendment is born out of a Coroner's recommendation and we need to take all recommendations of office bearers such as coroners seriously, but the point I made previously is that hard cases often make for bad law.

The Coroner, quite naturally, feels the need to come up with recommendations that may have avoided the situation that was presently before him. That was one case and it was a sad case, but not all cases are the same. To put into the statute book a general criminal offence that will potentially catch many people who are trying to do the right thing by their patients and loved ones I think is the wrong approach.

The final thing that I will say is that I did receive some communication today from the Mental Health Coalition to affirm its position that it is opposed to this subclause and urge all of us not to insist on its remaining in the bill.

The Hon. DAVID WINDERLICH: I am passionately opposed to this provision. I indicated as much when we discussed it earlier. I think there are a number of points to make. First, when we talk about the mental health area, there is furious debate, even amongst the psychiatric profession, about how much of the treatment and medications work. There are even quite authoritative figures who question that. So, we have an area of health the effectiveness of which is contested.

Secondly, we have all sorts of coercions in that area of health, and we have proven very unpleasant side effects of medication. So, even if you accept the medications are necessary, there are many instances of very negative side effects that arise out of research into mental health consumers.

Thirdly, you put that together with the fact that the mentally ill are often the most disadvantaged and alienated and you have a group of people who have less trust in the system that is seeking to treat them, often by coercion, than many of us would have in the standard medical system. It is understandable that they have less trust. So, you put all those things together and then envisage a situation where someone escapes and they go to family or friends; if they go to friends, there is a fair likelihood that the friends are also mentally ill people because often, when they start to lose contact with the rest of society, they end up with similar people.

If you put those things together—a system that can be very coercive and where the treatments can be very unpleasant, and a system that is not regarded with a great deal of affection by many of the people going through it—but then say to someone that if they harbour this person who is either seeking to escape or even, as the Hon. Mark Parnell said, almost seeking a form of respite they can then be subject to criminal sanctions, you put that person in an impossible position. If it were a member of my family or a friend, I do not know how I would react. I would have to be fairly convinced that what they were going through justified returning them, and with the mental health system I might not always be convinced that that was the case: sometimes I might be and sometimes I might not. I would have to be fairly careful about whether I would turn in that person and breach my duty of trust with that person, even if I thought it was the best thing for them. I might not rush into that decision.

We put those in contact with the mentally ill in an impossible position by doing this. The point has often been made that, because of inadequate treatment services, many mentally ill people end up in gaol. This kind of provision will mean that not only the mentally ill but also their friends and relatives will end up in gaol.

Finally, there is no demand for this. I do not see from where the demand or evidence for this comes. Everything we have done in terms of mental health, the Bidmeade report and everything else, points in a very different direction. Dr John Brayley, the Public Advocate and former director of mental health, has made some very clear points about the need to engage this group. If you do not try to engage them in their treatment you can have counterproductive effects. Something like this, where we criminalise someone who is harbouring or sheltering—what you call it depends on the circumstances—is completely counter to the notion of engaging them. It is cruel, and I think it would be counterproductive.

There are many areas of health where we emphasise the need to engage. The classic one has been in the area of AIDS, hepatitis, and so forth, where we took the approach—our society was enlightened, although I do not know whether we would do it now—that even though people were engaging in illegal activities, such as needle use and injecting drugs, rather than arresting them at every opportunity we set up things like needle exchanges. That is the notion of harm minimisation. That kind of philosophy needs to come more into the mental health area, in particular, where we have a vulnerable population, rather than bringing down the heavy hand of the law when there is no demand for it from anyone and no evidence it will work. It is a knee-jerk, tough on law and order measure of the type we see in so many situations now, but applied against the most vulnerable people in the community, their friends and loved ones. As I have said, it is cruel, counter productive and I cannot understand why the opposition is pursuing it.

Motion carried.

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

That the council do not insist on its amendment No. 24.

The committee divided on the motion:

AYES (9)
Bressington, A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Hunter, I.K. Parnell, M.
Winderlich, D.N. Wortley, R.P. Zollo, C.
NOES (10)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lawson, R.D. Lensink, J.M.A. (teller)
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J.
PAIRS (2)
Wade, S.G. Holloway, P.

Majority of 1 for the noes.

Motion thus negatived.


[Sitting suspended from 17:55 to 19:45]


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