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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-05-26 Daily Xml
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MENTAL HEALTH (REPEAL OF HARBOURING OFFENCE) AMENDMENT BILL

Introduction and First Reading

The Hon. T.A. JENNINGS (17:02): Obtained leave and introduced a bill for an act to amend the Mental Health Act 2009. Read a first time.

Second Reading

The Hon. T.A. JENNINGS (17:03): I move:

That this bill be now read a second time.

This bill, which is called the Mental Health (Repeal of Harbouring Offence) Amendment Bill 2010, does simply one thing: it seeks to remove section 105 of the new Mental Health Act due to take effect on 1 July.

The section of concern here (section 105) creates a crime which will adversely impact on carers of those with a mental illness. Importantly, this has not yet come into being and there is still time to change it. On 1 July the effect of this new section 105 will be to create a crime which is defined in the act as 'harbouring or assisting a patient at large' and that is to apply to:

(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.

The maximum penalty is $25,000 or up to two years of imprisonment. In this section interstate patients at large have the same meanings.

This is a new offence for this state. It has not yet come into being, and I believe there is still time to overturn this decision. Let me be clear: I am not opposed to offences being present in the Mental Health Act. I note that there is a number of offences in the new Mental Health Act and, of course, we do not want people to be able to have access to confidential information. I particularly note section 104 which applies to people who knowingly assist somebody to leave detention. We are not talking about that here: we are talking about creating a crime of harbouring that will criminalise carers.

Importantly, within the current Mental Health Act and in the new one, many sections relate to moving patients deliberately from treatment centres or assisting patients to leave. This is fair and just and we support that; we are not talking about that here. I find it quite odious that this new proposed crime of harbouring not only applies to people who do so knowingly but also to those who do so with reckless indifference or unknowingly. It just does not seem to be a fair cop for carers.

What we are about to introduce into this state does not exist anywhere else in the country. I looked at the other states' and territories' legislation in this area and I note that New South Wales, Victoria, Tasmania, Western Australia, the Northern Territory and the ACT have not created such similar offences in relation to those who care for someone—or 'harbour' them, to use this term—with a mental illness who is on a detention order. I note that Queensland does have a similar crime; however, I particularly ask members to pay attention to the fact that that applies where there is a forensic patient, which I think is a completely different matter.

The history of this debate would be known to most of the members here but not to all. Some newer members like me might be surprised to know that we are about to introduce a crime of harbouring for those who are determined to be patients at large. This particular amendment to the original act, which we are now about to see, came about because of the case of a man called Damien Paul Dittmar who died by his own hand on 16 May 2006. This amendment at the time of the debate about creating the crime of harbouring was put to the parliament arising out of recommendations from a coronial inquiry that related to that man's death.

It is quite clear that this man had suicidal intentions. He had been detained at The Queen Elizabeth Hospital. He absconded; he went to a friend's place and stayed there overnight. The friend then dropped him at his 87 year old grandmother's place, and that following morning he committed suicide. The Coroner in this case looked at whether, under criminal law, there could have been any possible prosecution for someone who had assisted a person who had absconded. He found that there was none. However, he noted that the police regarded their brief as simply being to attend the premises (Mr Dittmar's grandmother's house) and establish whether or not Mr Dittmar was there, which they had done. Mr Dittmar at the time had not been there.

The entry relating to the attendance from the police reports noted in the missing persons investigation diaries that the occupant of the premises, who was his grandmother, had been vague as to whether he had been home, and they noted that he was a missing person at all times, 'MP' being the code for missing person. He was certainly not in any way considered a suspect or a criminal by the police who were investigating this matter at the time.

The Coroner inferred that there was no further telephone communication made to the premises in order to establish whether or not Mr Dittmar had returned to his grandmother's home, which was also Mr Dittmar's home. The Coroner also raised concerns that he did not know why the police did not reattend the grandmother's premises or make any further telephone calls, but he did make this observation. He said:

If reliance had been placed upon assurances or indications from Ms Coombes [the grandmother] that she would call the police if Mr Dittmar returned, then in my opinion confidence in that regard was utterly misplaced. I do not make that observation with the benefit of hindsight. It would have been naive to have placed reliance on anyone's assurance in those circumstances.

So I note that, although we are told that the Coroner has recommended this, he actually does not believe that it would necessarily be wise for the police to have assumed that the carer of this person, the grandmother in this case, should be relied on to have 'dobbed him in'.

The Coroner also made some other recommendations, which did not merit discussion when we debated this new harbouring clause in this place (not that I was here). He made recommendations about a range of things that had an impact on this case. He recommended:

That the clinical staff of The Queen Elizabeth Hospital Emergency Department and the relevant current contractors for the provision of security services to The Queen Elizabeth Hospital continue to develop protocols and policies that will ensure that a patient detained under the Mental Health Act 1993 will not be left unobserved for any period of time following that person's detention and while that person remains within the confines of the Emergency Department.

Clearly, that is one issue that was not raised in the debate. He also recommended:

if...Section 254 of the Criminal Law Consolidation Act does not apply to the act of absconding from detention under the Mental Health Act 1993, the Attorney-General and the Minister for Mental Health consider introducing legislation that would render it an offence to knowingly assist an absconded detainee under the Mental Health Act 1993 to avoid apprehension.

I note that he said 'knowingly'.

I gather the Attorney-General and the minister probably did consider this issue, because that is all the Coroner recommended. He did not recommend the law be introduced. He recommended that the Attorney-General and the Minister for Mental Health consider it. I imagine that they did consider it, but perhaps I may be wrong about that. Certainly they made no such recommendations. In their wisdom they have chosen not to introduce such legislation into South Australia.

The Coroner also recommended that the Commissioner of Police take the necessary steps to ensure that a detained person under the Mental Health Act, who has left their place of detention without permission, is not regarded as a missing person. He suggested and recommended that perhaps they be regarded as 'unlawfully at large' and liable to be apprehended under the law, and that, in particular, the necessary vigour that needs to be brought to bear in order to facilitate the return of that detained person to his or her place of detention be undertaken by police. In no parts of the report that I can see did he recommend that carers be put in charge of policing this law, and he certainly did not seem to recommend that carers be criminalised simply for caring for those who have a mental illness.

I introduce this bill today because I support those family members who are doing the best they can to support their loved ones in what we know are often stressful and draining circumstances. Those carers should not have the threat of fines or prison sentences hanging over their head simply for doing the necessary support work they do that contributes so much to our communities, and in fact saves the state so many dollars.

I note once again that the previous and the new act contain offences for removing a person from a treatment centre, or aiding their removal without a lawful excuse. That is all good and proper; I am not talking about that. A mental health patient, however, should not be likened to a prisoner who has escaped. We are talking about a very different case here. We hope that in this century we are no longer equating mental illness per se with being a criminal. No crime has been necessarily committed by this person with a mental illness who is treated as a patient at large. They have not committed a crime. If there had been a crime committed, then the criminal laws would come into effect and we would be looking at that person being treated forensically.

I also note that SAPOL actively searches for patients who unlawfully leave a treatment centre, and that many members of the community often equate being placed on a detention and treatment order with being imprisoned for a particular crime. I think we are strengthening this perception with section 105 of the new Mental Health Act, and I think it is a perception that we really need to cut the ties of, because mental illness is not a crime.

Educating people about why such orders are sometimes necessary would be preferable to criminalising members of the public who may believe that they are doing the right thing in 'harbouring', in the words of this new section, a patient. I would call it caring for this person. I would call it making sure that they are calm rather than calling the police straight away and having a person with a mental illness put in a straitjacket—going back to the bad old days when we did criminalise mental illness.

In my consultations about the bill I have introduced, I was part of the Mental Health Coalition of South Australia, as some members may be aware. In fact, I lobbied against this amendment to the bill when it was discussed in this place last year. I went to a consultation run by the Mental Illness Fellowship of South Australia a few weeks ago, and that was to inform the mental health community sector, the NGO sector, the people who work with consumers day to day, about the new act. While there are many, many good things in the act and many things that they and I welcome, they were horrified when they heard about this new section.

Workers themselves also have some concerns that this law may be applied to them simply for doing their job. If they approach somebody, will they be put in a position where they have to first ask, before they see their mental state, 'By the way, are you currently on a detention order that you have escaped?' This would maybe have to be the first question rather than, 'Hi, how are you? How are you going?'

I think it sets a dreadful precedent, and I note that the sector was not aware of this coming because it was put into the debate at a very late stage. While there was a lot of consultation about the new Mental Health Act, this was certainly not part of the body of those consultations, so it was very much a surprise to those involved in the sector. They are quite horrified, and many of them have communicated to me that they are very pleased to see it challenged at this juncture.

I think that if we see this new harbouring clause put into the Mental Health Act, we will be making criminals out of people who are not criminals. We will be making criminals out of people who are carers.

An honourable member interjecting:

The Hon. T.A. JENNINGS: Apparently it might be what we do best; I hope to change that. It is all well and good to say that a carer should be calling the cops on their family member as soon as they see them when they turn up in a state of distress. However, many people will tell you stories of how a family member has come to them having left a treatment centre and they are possibly distressed. A cup of tea, some sympathy, a bed for the night and calming them down is a lot more effective than calling the police, wasting police resources that could be out there actually addressing real crimes, and having that person taken back to the institution in a state that does nobody's mental health any good.

I know it was not the intention of the mover of the original amendment to create this situation, but I think that some crisis will occur in the mental health sector and with carers because of new section 105. I think it is a knee-jerk reaction and a 'tough on crime' approach where no crime was involved. It took the Coroner's words and misinterpreted them, not deliberately but with the best of intentions. This is an area that touches so many of us, and people all have their own stories here and their own understandings. We want to see those with mental illness treated with dignity and respect in our community, but I particularly want to see the carers given a fair go in this situation.

What is most odious, as I said, is that you do not even have to be aware that your loved one has escaped detention. They could merely be recklessly indifferent. Does that mean that they just do not ask every time they see you whether or not you have hoofed it from The QEH? We are really concerned about creating a situation where families will feel the onus to dob in their family members. This will break down a family relationship or a friendship for a person with a mental illness who is most in need of that relationship to be one based on trust and respect. We will be taking people who already feel isolated from their communities because of their mental illness and putting yet another barrier in the way of their recovery and yet another burden on their families, who already have large burdens in caring for them.

We understand that there is concern that mentally ill people get the treatment they need to recover. Our concern is that people in crisis and perhaps suicidal will not turn to their families in such a situation. They will feel that they have nowhere to go. I think that section 105 will actually have the reverse effect of what it was intended to do. It will put people in a more distressing situation where they feel they have fewer options than they do now.

Not having this law does not stop families from turning to the police for assistance when they need to; however, sometimes, as I said, a cup of tea, some loving encouragement and calming them down before they return to the hospital, for example, is more effective than using the strong arm of the law. The point is that we should trust and support the people who are in these situations to use their best judgment. Genuinely trying to help a family member or a friend who is mentally ill should never be a criminal offence.

We are talking about people who are just not engaged with the mental health system and experiencing the worst of that; they are probably disengaged from all parts of our society, and families are often the last thing they have left. Friends are often the last thing they have left, and often their friends also have mental illness because they have similarly been isolated. We are putting these people in a position where they will have very little recourse. We are also introducing a culture where the institution of the police will be the first and not the last resort.

I would really like to have the voices of those people heard. They have not been heard on this issue at all. I think that the late inclusion of this amendment to the original act—that is, section 105 being included at such a late point of the debate—meant that those voices have been silenced. I seek leave to conclude my comments on the next Wednesday of sitting, when I intend to bring members' attention to the voices of carers and families, of the members of organisations who support those with mental illness and of those who are living with mental illness themselves, to inform the decisions of this chamber.

Leave granted; debate adjourned.

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