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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-06-30 Daily Xml
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MENTAL HEALTH (REPEAL OF HARBOURING OFFENCE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 June 2010.)

The Hon. I.K. HUNTER (11:30): I am happy to stand here today and give the government response to this item. The government is fully supportive of this amendment.

Members interjecting:

The PRESIDENT: Order!

The Hon. R.P. Wortley interjecting:

The PRESIDENT: Order, the Hon. Mr Wortley!

The Hon. I.K. HUNTER: The government is fully supportive of this amendment which seeks to remove the offence of harbouring or assisting a patient at large. The penalties for the offence is $25,000 or two years' imprisonment. We, on this side, know why the amendment was originally moved; however, this section of the act (section 105) is not in any way consistent with the philosophy of the act or the contemporary provision of mental health services in a state like South Australia.

The Hon. Tammy Jennings has outlined in some detail the origins of the original amendment which led to the inclusion of this section in the act. She has also discussed why this section should be repealed, and those of us on this side of the council agree with her arguments. Modern mental health law does not equate mental illness with criminality. The Mental Health Act 2009 is about providing the best care and treatment to people who have very serious mental illnesses. These people are not criminals.

Section 105 sits awkwardly in an act which is concerned with supporting those people who often provide the most care to people with a mental illness, their families and other carers and their friends. It is these people who are most likely to be captured by section 105. If a person does leave a treatment centre without permission where they have been detained, where are they most likely to go? Of course it is to their family and friends—people they believe they can rely on to protect and nurture them.

However, under the provisions of section 105 if a family member or friend provides protection and care to that person, they are potentially liable for a $25,000 fine or two years' imprisonment. This achieves nothing while traumatising and penalising individuals who are just trying to help.

Many of the people who may be caught up by section 105 may not even be aware that the person seeking shelter from them is a patient at large. The patient may tell them that they have legitimately been given leave by the treatment centre or have been discharged. The result could be to persecute people who may in many cases be ageing parents just trying to do their best for their son or daughter.

Section 105 is not congruent with the philosophy underpinning the Mental Health Act 2009. It will serve no useful purpose for people with serious mental illness and their families, friends and carers. All it will do is harm both the family and the patient. It is not consistent with the contemporary approach to mental health law and consequently it should be removed from the act.

The Hon. J.M.A. LENSINK (11:32): I will be brief. Clearly, the Liberal Party supports this amendment, as it is one we moved in the first place as one of many amendments we made to the Mental Health Act which were opposed by the government, including to establish a community visitors scheme which I think was welcomed by the sector and by the advocacy community.

I say that as a preface to the rest my comments just to put it in context in case anybody is under any illusion that the Liberal Party would like to see mental illness in any way criminalised, because that is certainly not the case. We believe this amendment was demonstrating compassion towards people with mental illness and the need for them to be in continuing treatment.

It has been stated that this was in relation to a coronial inquiry which was some years ago, so we have the benefit of the passage of time to see whether the government has attempted to address the recommendation of the Coroner in any way, yet it turns out they have done absolutely nothing.

I note that the mover of this bill, the Hon. Tammy Jennings, referred to the Attorney-General and the minister for mental health having been advised that they should undertake discussions and, as they had not, I think she made the assumption that they had deemed it unnecessary. I advise the honourable member that in relation to another very important matter—the retention of body parts illegally, which happened several years ago—we had the Transplantation and Anatomy Act pass this parliament and we sought to ensure that coronial autopsies would be subject to the same scrutiny as health autopsies, and that has failed.

There was an article in The Independent Weekly during the election campaign which discussed it extensively. The Minister for Health had written to the Attorney-General and said, 'This is the form that we are using, could you adopt it?' On freedom of information inquiries we discovered that absolutely nothing has happened as a result of the Minister for Health writing to the Attorney-General, so I think there is form on that front as to the lack of communication between those two ministers.

Be that as it may I do not think that serves as an argument in favour of this bill. I would like to read some of the comments of the Coroner in relation to this. I did not go into it in any great deal of detail when I moved the clause in the substantive bill in relation to it, so I think it is useful to read it onto the record. At paragraph 10.7 the Coroner says:

Whatever the legal position may be, it is my recommendation that the act of knowingly assisting an absconded detained patient—

I note that the Coroner uses that word 'absconded'; it has been subject to some community discussion recently on talkback radio. The Minister for Health said that he did not like that word 'absconding' and that it is offensive to people with a mental illness; indeed, some of the arguments in favour of this bill moved by the Hon. Tammy Jennings are in relation to language. I think that language is an area of particular concern to the mental health sector, but I would like to put on the record that I think sometimes language can be misconstrued.

Unfortunately, the language that is used by statutes is often quite different to the language that is used within the community and general discussions and it ought not necessarily be a reason to object to particular language being used in acts of parliament. The Coroner continues:

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—

I think the Hon. Tammy Jennings outlined certain circumstances in which that would be the case—

and in what are thought to be the best interests of the patient. 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. Having regard to the underlying reasons that led to a person being detained under the Mental Health Act, one would have thought that such activity ought to be heartily discouraged.

As seen from section 23(2) of the Act, a member of the police force may apprehend a detained patient who is unlawfully at large. Although this provision is couched in discretionary terms, it would seem to me that the apprehension of a detained patient and the forcible return, if necessary, to the place of detention would be the norm.

In relation to that, the Hon. Tammy Jennings discussed the issue of the difficulty with police apprehending people who are detained under the act. I agree that it is a pretty traumatic experience for all involved and there are many families that I have spoken to over the years who say that it depends on the level of training and experience of police officers. It is also damaging for those relationships, particularly between parents and children. A child feels some betrayal by their parent and therefore there has been a memorandum of understanding with other agencies to try to address that particular issue.

I do not think that is necessarily a reason for supporting the bill which is before us. I think that is a problem with the system and the system needs to continue to work through that to ensure that people with mental illness are treated with the dignity that they deserve. I continue reading from the Coroner's report:

There is an implication also that the Act imposes upon the police a duty to seek out patients who are unlawfully at large and not wait until such time as they may next come under police attention. In my view the position of a detained patient at large is to be distinguished from that of a missing person who is not unlawfully at large. Plainly, the level of police resources that might be deployed to locate a detained patient who is unlawfully at large would depend on all of the circumstances. However, what needs to be constantly borne in mind is that a detained patient has been detained for a reason that has a statutory basis, namely the interests of his or her own safety or the protection of the public, or both. One would have thought that this would be the underlying assumption in respect of a detained patient unlawfully at large upon which the police should act.

I think the Coroner has spoken in very strong language that there ought to be some measure which, I would have to say, would be very unusual circumstances for this clause to be applied.

I also refer to the fact that it has been stated that this amendment was brought in late; I acknowledge that. In my own defence, I would just like to say that the changes to the Mental Health Act were very comprehensive. It is one of the most detailed pieces of legislation that I have ever had to deal with in trying to determine the existing parameters for detention compared with the new ones, particularly as the bill related to community treatment orders and the like.

For that reason, as I said, the package of amendments that the Liberal Party sought, mostly successfully, to have included in the bill had been consulted on. I do confess, however, that particular aspect is not one that I had the time or opportunity to discuss with the sector.

I also hope that the sector itself and the Greens Party have not been seeking deliberately to alarm carers and family members. Some of the correspondence I have seen from members of the public, carers and so forth shows some unnecessary alarm. I put that on the record, that I think we ought to be as transparent as we possibly can in dealing with these matters.

One of the other aspects to having some sort of harbouring fallback position, if you like, is that it protects the families in some ways. If somebody is to return when they are supposed to be under a detention order, and they return to the home, at least if a family member is uncomfortable about having that particular person there, they can say that there is a good reason to contact the authorities. It is a way out for them, if you like. Harbouring is also something that we have in child protection legislation, which is also aimed at protecting the vulnerable. With those words I indicate the Liberal Party's position that we oppose this bill.

The Hon. A. BRESSINGTON (11:43): I rise to indicate that I support the Hon. Tammy Jennings' amendment. I did not vote in favour of this amendment originally and I am so pleased that this language is now going to be, hopefully, taken out of this particular bill.

The mentally ill need support. They would go to people they are familiar with if they abscond from facilities like this for a reason. I believe this particular part of the bill puts families in a very difficult position, dealing with very difficult circumstances. I also would like to say that, if a family member does not want a person under a detention order in the family home, they have the opt-in of being able to call the authorities and police and have that person taken back into care without facing penalties that criminalise nothing more than families caring for family members.

I think we are making a big mistake, and the Hon. Michelle Lensink mentioned that, in the same way as the Children's Protection Act, it is there to protect the vulnerable. Well, we fail miserably in that area, too, so perhaps it is time that we took a new view on how we try to protect the vulnerable. Criminalising everybody and everything is not the answer to solving the problems that we are facing with this.

Perhaps, if the mental health system were better funded, we would not have half the problems we are having now with this issue. We cannot deny that funding plays a role in this, given that the head of mental health at a federal level resigned, I think last week, stating that our approach to mental health is ineffective and a joke, and I think that leaks down to a state level. I support this bill and commend the Hon. Tammy Jennings for introducing it. I hope it gains the support of the house.

Debate adjourned on motion of Hon. R.P. Wortley.

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